Judge Kerry Bensinger, Case Number: 24STCV31803, Date: 2025-05-23 Tentative Ruling

This is a breach of contract action. On April 24, May 6, and May 7, 2025, plaintiff Law Offices of Bin Li and Associates, PLC (“Plaintiff”) filed these applications seeking the following: (1) an order directing service of summons on defendant Albert Z. Ye (“Ye”) by publication, and (2) and orders authorizing service of process on the California Secretary of State on behalf of defendants Alyer Bioceuticals Inc. dba Canna Holding, Inc., Alyer Laboratories Inc., and Alyer Management Inc. (collectively, “Alyer Defendants”).

Where a defendant cannot with reasonable diligence be served in any manner specified in Code of Civil Procedure sections 415.10 through 415.40, a plaintiff may seek an order for service by publication. Code of Civil Procedure section 415.50 provides, in pertinent part: “A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: (1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action. (2) The party to be served has or claims an interest in real or personal property in this state …” (Code Civ. Proc., § 415.50, subd. (a).) “When substituted or constructive service is attempted, strict compliance with the letter and spirit of the statutes is required.” (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41.)

“For the purpose of service by publication, the existence of a cause of action is a jurisdictional fact.” (Harris v. Cavasso (1977) 68 Cal.App.3d 723, 726; Code Civ. Proc., § 415.50, subd. (a) [requiring that a “cause of action exists against the party upon whom service is to be made.”])

“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.)

Plaintiff seeks an order allowing service of summons on Defendant Ye by publication in The Daily Transcript. Despite diligent efforts, Plaintiff has been unable to serve Defendant Ye by personal service or notice of acknowledgement.

Upon review of Plaintiff’s application and supporting documents, the court is satisfied with Plaintiff’s showing of due diligence. (See Lin Decl., ¶¶ 2-10.)

The application to serve Defendant Ye by publication in The Daily Transcript is GRANTED.

Corporations Code section 1702, subdivision (a) also provides the following:¿ If an agent for the purpose of service of process has resigned and has not been replaced or if the agent designated cannot with reasonable diligence be found at the address designated for personally delivering the process, or if no agent has been designated, and it is shown by affidavit to the satisfaction of the court that process against a domestic corporation 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 or upon the corporation in the manner provided in subdivision (a), (b) or (c) of Section 416.10 or subdivision (a) of Section 416.20 of the Code of Civil Procedure, the court may make an order that the service be made upon the corporation 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 such service. Service in this manner is deemed complete on the 10th day after delivery of the process to the Secretary of State.¿¿

After reviewing Plaintiff’s applications for service of process to the Secretary of State for Alyer Defendants, the court is satisfied with Plaintiff’s showing. Defendant Ye is the registered agent for service of process for the Alyer Defendants. Plaintiff demonstrates Alyer Defenadnts cannot be served with reasonable diligence upon the designated agent, Defendant Ye, 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 or upon the corporation in the manner provided in subdivision (a), (b) or (c) of Section 416.10 or subdivision (a) of Section 416.20 of the Code of Civil Procedure.

Accordingly, the applications for orders permitting service of summons by service on the Secretary of State are GRANTED.

The application for publication, filed April 24, 2025, is Granted. Service by publication of Defendant Albert Z. Ye in The Daily Transcript is ordered.

The applications for orders permitting service of summons by service on the Secretary of State, filed on May 7 and May 8, 2025, are Granted. Plaintiff is authorized to effect service of summons on defendants Alyer Bioceuticals Inc. dba Canna Holding, Inc., Alyer Laboratories Inc., and Alyer Management Inc. by delivering by hand to the Secretary of State, or to any person employed by 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 this order authorizing such service.

Kerry Bensinger

Judge of the Superior Court