Judge: Lee W. Tsao, Case: 23NWCV02945, Date: 2024-10-02 Tentative Ruling

Case Number: 23NWCV02945    Hearing Date: October 2, 2024    Dept: C

NAHM v. PAX AMERICA DEVELOP, LLC, ET AL.

CASE NO.:  23NWCV02945

HEARING:  10/02/24

#6

TENTATIVE ORDER

Plaintiff Choong Hee Nahm’s motion for order allowing service of summons and complaint through California Secretary of State is GRANTED.

Plaintiff Choong Hee Nahm to give notice.

Procedural Background

This is a breach of contract action. On September 18, 2023, Plaintiff CHOONG HEE NAHM (“Plaintiff”) sued Defendants PAX AMERICA DEVELOP, LLC; TAE W. KIM a/k/a THOMAS KIM; UNIMAE (“Defendants”) and DOES 1 to 5.

On October 13 and 27, 2023, Plaintiff filed an Amendment to Complaint correcting Defendant PAX AMERICA DEVELOP, LLC’s name to PAX AMERICA DEVELOPMENT, LLC, and Defendant UNIMAE’s name to UNIMAE, INC.

On December 13, 2023, Defendant PAX AMERICA DEVELOPMENT, LLC (“PAD LLC”) filed an Answer.

Plaintiff now moves for an order allowing service of summons and complaint on Defendant UNIMAE, INC. (“Unimae”) through and by the California Secretary of State. The motion is unopposed.

Analysis

Legal Standard re: Motion to Allow Service via The California Secretary of State

Corporations Code Section 1702, subdivision (a) states in pertinent part: “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.” (Cal. Corp. Code, § 1702, subd. (a) (emphasis added).)

“Upon the receipt of any such copy of process and the fee therefor, the Secretary of State shall give notice of the service of the process to the corporation at its principal office, by forwarding to such office, by registered mail with request for return receipt, the copy of the process or, if the records of the Secretary of State do not disclose an address for its principal office, by forwarding such copy in the same manner to the last designated agent for service of process who has not resigned. If the agent for service of process has resigned and has not been replaced and the records of the Secretary of State do not disclose an address for its principal office, no action need be taken by the Secretary of State.” (Cal. Corp. Code, § 1702, subd. (b).)

Here, Plaintiff advances the declaration of his counsel of record, Donald M. Barker, who states he hired a Certified Process Server by the name of Robert Hall, License No. 6932 to effect service on Unimae. (Barker Decl., ¶3, Ex. A – Declaration of Diligence.) Mr. Barker further states Mr. Hall made six separate attempts to serve Unimae between November 2023 and December 2023, through its Agent for Service, Defendant Kim, at the address listed with the California Secretary of State and a second address found for Defendant Kim in Los Angeles. (Id.)

The Court finds that Mr. Hall’s declaration of diligence is sufficient to establish Unimae, Inc. cannot be served on Defendant Kim, who is its Agent for Service per the California Secretary of State’s website, with reasonable diligence. Also, Mr. Barker on behalf of Plaintiff sent Defendant Kim a demand letter to his email address and never received a response to the initial email or subsequent emails. (Barker Decl., ¶2.) Lastly, Mr. Barker left numerous cellphone voicemail messages for Defendant Kim, which he never received a response to either. (Id.)

Conclusion

Based on the foregoing, Plaintiff Choong Hee Nahm’s motion for order allowing service of summons and complaint through California Secretary of State is GRANTED.