Judge Kerry Bensinger, Case Number: 23STCV15606, Date: 2023-11-30 Tentative Ruling

On July 5, 2023, Plaintiffs, 3840 Crenshaw, LLC, Crencol, LLC, and Crenshaw Square, LLC, filed this action against Defendant, 3820 Crenshaw, LLC, for alleged environmental contamination flowing from Defendant’s property onto Plaintiffs’ adjacent property.

On October 20, 2023, Plaintiffs filed this Motion for Order for Substituted Service of Process Through Secretary of State.

Plaintiffs move the Court for an order directing service of the summons and complaint on Defendant by substituted service of process through the Secretary of State. Plaintiffs state that Robin Yi, Defendant’s agent of service of process, has evaded attempts to be served. In all, Plaintiffs have used two process servers who have tried and failed to effect service more than twelve times. (See Veeneman Decl., Exs. A, B and C.) Plaintiffs further explain that they contacted Defendant’s counsel about this case. Defense counsel initially agreed to accept service of the complaint on his client’s behalf. However, defense counsel later indicated that Defendant would not agree. (See Veeneman Decl., Ex. D.)

Plaintiff relies on Corporations Code section 1702, subdivision (a), which provides:

“If an agent for service of process has resigned and has not been replaced or¿if the designated agent cannot with reasonable diligence be found at the address designated for personal delivery of the process, and it is shown by affidavit to the satisfaction of the court that process against a limited liability company or foreign limited liability company cannot be served with reasonable diligence upon the designated agent by hand in the manner provided in¿Section 415.10, subdivision (a)¿of¿Section 415.20, or¿subdivision (a) of Section 415.30 of the Code of Civil Procedure, the court may make an order that the service shall be made upon a domestic limited liability company or upon a registered foreign limited liability company by delivering by hand to the Secretary of State, or to any person employed in the Secretary of State's office in the capacity of assistant or deputy, one copy of the process for each defendant to be served, together with a copy of the order authorizing the service.¿Service in this manner shall be deemed complete on the 10th day after delivery of the process to the Secretary of State.”

“If the agent designated for the service of process is a natural person and cannot be found with due diligence at the address stated in the designation or if the agent is a corporation and no person can be found with due diligence to whom the delivery authorized by Section 2110 may be made for the purpose of delivery to the corporate agent, or if the agent designated is no longer authorized to act, or if no agent has been designated and if no one of the officers or agents of the corporation specified in Section 2110 can be found after diligent search and it is so shown by affidavit to the satisfaction of the court, then the court may make an order that service be made by personal delivery to the Secretary of State or to an assistant or deputy secretary of state of two copies of the process together with two copies of the order, except that if the corporation to be served has not filed the statement required to be filed by Section 2105 then only one copy of the process and order need be delivered but the order shall include and set forth an address to which the process shall be sent by the Secretary of State. Service in this manner is deemed complete on the 10th day after delivery of the process to the Secretary of State.” (Corp. Code, § 2111(a).)

“Diligence is a relative term and must be determined by the circumstances of each case. The question is one for the trial court in the first instance.” (Vorburg v. Vorburg (1941) 18 Cal.2d 794, 797.) “If the facts set forth in the affidavit have a legal tendency to show the exercise of diligence on behalf of the plaintiff in seeking to find the defendant within the state, and that after the exercise of such diligence [she or] he cannot be found, the decision of the judge that the affidavit shows the same to his satisfaction is to be regarded with the same effect as is [her or] his decision upon any other matter of fact submitted to [her or] his judicial determination.” (Id.)

Here, Plaintiffs demonstrate that Defendant cannot be served with reasonable diligence upon its designated agent, Robin Yi, by hand in the manner provided in Section 415.10, subdivision (a)¿of¿Section 415.20, or¿subdivision (a) of Section 415.30 of the Code of Civil Procedure. Plaintiffs have attempted to serve Defendant on more than a dozen occasions. Thus, the Court finds service through the Secretary of State is the only remaining means for Plaintiffs to serve documents in this action.

The unopposed Motion for Order for Substituted Service of Process Through Secretary of State is GRANTED.

Kerry Bensinger

Judge of the Superior Court