Judge: Layne H. Melzer, Case: 2023-01308772, Date: 2023-07-20 Tentative Ruling

Petitioner Augustin Giurgean

Motion to Compel Arbitration

Before the court is Petitioner Augustin Giurgean’s petition to compel respondent Clarker, Inc. to arbitrate their dispute under a written agreement for the sale and purchase of assets.

The court heard this Petition on 5/11/23 and there was no proof of service filed showing Respondent received any notice of this petition. In relevant part, the court held that where the arbitration agreement does not provide the manner in which service shall be made and the person on whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with section 1290.4(a) of the Code of Civil Procedure, service of the petition and notice of hearing must be served in a manner provided by law for the service of summons in an action. (Code Civ. Proc. § 1290.4(b).) (ROA 9)

The court heard the continued Petition on 6/8/23 and again found that the two service attempts at personal service were insufficient to effectuate service. (ROA 16). The court held that if further attempts at personal service prove unsuccessful, Petitioner must utilize another method to ensure that the petition and notice of hearing is served in a manner provided by law for the service of summons in an action. (ROA 16)

On 7/14/23, Petitioner filed a Proof of Service showing that the Petition was served by substitute service by mail. However, there is not a statute authorizing service by mail alone.

However, the court notes that if, despite reasonable diligence, summons cannot be served on any of the foregoing, service may be made on the Secretary of State.

Petitioner’s counsel must first obtain a court order authorizing hand delivery to the Secretary of State or the Secretary's assistant or deputy. [Corps. C. § 1702(a), (d)]

The court order must be based upon a factual showing (by declaration) that process cannot be served with reasonable diligence upon (i) the corporation's designated agent (i.e., because the agent resigned and was not replaced or cannot be found at the designated address or if no agent was appointed); and (ii) the corporation by any other authorized method. [Corps. C. § 1702(a)]

Here, Petitioner has met the requirements of Corps. C. § 1702(a). The agent for service of process identified with the Secretary of State is not at the address provided and cannot with reasonable diligence be located.

Thus, the court construes the Declaration of Nicholas A. Buscemi as a request to serve Respondent with this Petition via the Secretary of State. Given the attempts at personal service, the research conducted by Counsel, and the information with Secretary of State, the court finds that process cannot be served with reasonable diligence on the Agent for Service of Process or the corporation by any authorized method.

Service upon the corporation is deemed complete 10 days after delivery to the Secretary of State. [Corps. C. § 1702(a)] Code Civ. Proc. § 1290.2 requires respondent to receive not less than 10 days' notice of the date set for the hearing on the petition.

Thus, Petition is ordered to hand-deliver the Petition and a copy of this Order to the Secretary of State. Petitioner must file a proof of service showing compliance with this Order.

The Petition to compel arbitration is continued to 9/28/23 in Department C12 at 2:00 pm.