Judge Lee S. Arian, Case Number: 21STCV10834, Date: 2024-01-19 Tentative Ruling

This is an action arising from Plaintiff Christina T. Perez (“Plaintiff”) falling due to crumbling stairs on March 22, 2019. On March 19, 2021, Plaintiff filed a complaint against Defendants Pi Kappa Alpha (“PKA”), Fraternity & Sorority Services, Inc. (“F&S Services”), B&B Management Services, Inc. (“B&B”), California Gamma Chapter House of Phi Delta Theta (“California Gamma Chapter House”), and Does 1 to 50, alleging causes of action for: (1) general negligence and (2) premises liability.

On June 2, 2021, Plaintiff filed an Amendment to Complaint identifying Doe 1 as West Range Corporation.

On August 23, 2021, West Range Corporation filed a cross-complaint; however, pursuant to a request for dismissal filed on January 28, 2022, the cross-complaint filed by West Range Corporation was dismissed on such date.

On April 12, 2023, Plaintiff filed a Declaration of Reasonable Diligence which sets forth numerous attempts to serve Defendant F&S Services with the summons and complaint. On such date, Plaintiff also filed a Declaration of Reasonable Diligence as to attempts to serve Defendant California Gamma Chapter House with the summons and complaint.

On June 21, 2023, Plaintiff filed a request for dismissal as to Defendant PKA only and Defendant PKA was dismissed from this action without prejudice.

On December 5, 2023, Plaintiff filed a motion for an order for publication for service on Defendant California Gamma Chapter House via the California Secretary of State. On December 5, 2023, Plaintiff also filed a motion for an order for publication for service on Defendant F&S Services, Inc. via the California Secretary of State. The Court will address both motions in this one ruling as they are substantively identical and seek the same relief. Pursuant to the motions, Plaintiff seeks an order directing service of the summons and complaint on Defendants California Gamma Chapter House and F&S Services, Inc. by delivering by hand to the California Secretary of State or to any person employed in their office in the capacity of assistant or deputy.

“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 be reasonable diligence be served . . . 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 . . . [or] (2) [t]he party shall be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.” (Code Civ. Proc., § 415.50, subd. (a)(1)-(2).)

If a summons and complaint cannot with reasonable diligence be served on a domestic corporation “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 California 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 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.” (Corp. Code, § 1702, subd. (a).) “Service in this manner is deemed complete on the 10th day of delivery of the process to the Secretary of State.” (Corp. Code, § 1702, subd. (a).)

Code Civ. Proc. § 415.10 outlines how to personally serve a party. Code Civ. Proc. § 415.20 sets forth the requirements for substituted service. Code Civ. Proc. § 415.30 addresses service by mail. Code Civ. Proc. § 416.10(a)-(b) indicates that a corporation may be served by delivering a copy of the summons and complaint to the person designated as an agent for service of process or to an individual such as the president, chief executive officer, secretary, or other person authorized by the corporation to accept service of process. Code Civ. Proc. § 416.10(c) addresses service of process on a corporation that is a bank. Code Civ. Proc. § 416.20 provides that where a corporation has forfeited its charter or right to do business, or has dissolved, service may be effectuated by delivering a copy of the summons and the complaint to a person who is a trustee or the corporation and of its stockholders or members. (Code Civ. Proc., § 416.20, subd. (a).)

As to the motion concerning Defendant California Gamma Chapter House, counsel Grace Lea Chang (“Chang”) declares that a cause of action exists against Defendant California Gamma Chapter House and her office has made diligent attempts to serve Defendant California Gamma Chapter House. (Chang Decl., ¶¶ 1-3.) Counsel states that she was informed that the attorney for the corporation and the Executive Vice President and CEO of Phi Delta Theta Fraternity, Sean Wagner, informed her that the corporation was the responsible party, and the corporation is a suspended corporation. (Chang Decl., ¶ 4.)

Defendant California Gamma Chapter House has been a suspended corporation since October 2021. (Chang Decl., ¶ 5; Exhibit 1.) Multiple attempts were made to serve Defendant California Gamma Chapter House in person, but such attempts were unsuccessful. (Chang Decl., ¶¶ 6-7; Exhibits 2-3.) Plaintiff has shown numerous attempts to serve Defendant California Gamma Chapter House’s agent for service of process. (Chang Decl., Exhibit 2.) Counsel declares that she is unaware of any other reasonable source of information that would have facts leading her to serve Defendant California Gamma Chapter House and, after reasonable diligence, she is unable to locate and serve Defendant California Gamma Chapter House. (Chang Decl., ¶ 9.)

The Court finds that Plaintiff has shown numerous attempts, with reasonable diligence, to serve Defendant California Gamma Chapter House.

The Court therefore GRANTS Plaintiff’s motion to serve Defendant California Gamma Chapter House via the California Secretary of State pursuant to the procedures outlined in Corp. Code § 1702.

As to the motion concerning F&S Services, Plaintiff’s counsel, Grace Lea Chang (“Chang”), declares that a cause of action exists against Defendant F&S Services and her office has made diligent attempts to serve Defendant F&S Services, and her office found the corporate records of Defendant F&S Services which contained the information of its designated agent for service of process. (Chang Decl., ¶¶ 1-3; Exhibit 1.)

Multiple attempts were made to serve Defendant F&S Services in person, by serving its chief executive officer, secretary, and agent, Mark Miller, but such attempts were unsuccessful. (Chang Decl., ¶¶ 4,6; Exhibits 2 and 4.) Plaintiff has shown numerous attempts to serve the agent, secretary, and chief executive officer for Defendant F&S Services with the summons and complaint. (Chang Decl., Exhibits 2 and 4.) Counsel declares that she is unaware of any other reasonable source of information that would have facts leading her to serve Defendant F&S Services and, after reasonable diligence, she is unable to locate and serve Defendant F&S Services. (Chang Decl., ¶ 8.) Counsel even caused a stake-out to be ordered to serve Defendant F&S Services; however, the stake-out was unsuccessful. (Chang Decl., ¶ 7; Exhibit 5.)

The Court finds that Plaintiff has shown numerous attempts, with reasonable diligence, to serve Defendant F&S Services.

The Court therefore GRANTS Plaintiff’s motion to serve Defendant F&S Services via the California Secretary of State pursuant to the procedures outlined in Corp. Code § 1702.

The Court therefore GRANTS Plaintiff’s motion to serve Defendant California Gamma Chapter House via the California Secretary of State pursuant to the procedures outlined in Corp. Code § 1702.

The Court therefore GRANTS Plaintiff’s motion to serve Defendant F&S Services via the California Secretary of State pursuant to the procedures outlined in Corp. Code § 1702.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court