Judge: Lynette Gridiron Winston, Case: 21PSCV01004, Date: 2023-11-07 Tentative Ruling
Case Number: 21PSCV01004 Hearing Date: November 7, 2023 Dept: 6
CASE NAME: Rebecca Castillo v. CR Newbury Street Corp.
Motion to Serve Defendant Through Secretary of State
TENTATIVE RULING
The Court DENIES without prejudice the motion to serve Defendant through Secretary of State.
BACKGROUND
This is an ADA/Unruh Civil Rights Act case. On December 2, 2021, Plaintiff Rebecca Castillo (Plaintiff) filed this action against Defendant CR Newbury Street Corp. (Defendant) and Does 1 through 10, alleging one cause of action for Violations of the Unruh Civil Rights Act, California Civil Code § 51 et seq. On January 31, 2023, Plaintiff filed the operative First Amended Complaint (FAC), alleging the same cause of action against Defendant.
On October 3, 2023, Plaintiff filed the instant motion to serve Defendant through Secretary of State. The motion is unopposed.
LEGAL STANDARD
“A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods… (d) If authorized by any provision in Section 1701, 1702, 2110, or 2111 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable), as provided by that provision.” (Code Civ. Proc., § 416.10, subd. (d).)
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.
(Corp. Code § 1702, subd. (a).)
More simply stated, “If no agent has been designated, or a designated agent has resigned and has not been replaced, or a designated agent cannot be found with reasonable diligence, service may be made on the Secretary of State. [Citations.]” ((c) [§ 1111] Secretary of State., 3 Witkin, Cal. Proc. 6th Actions § 1111 (2023).)
DISCUSSION
Analysis
A declaration in support of a request to serve a corporation must demonstrate "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."
Construing the prior version of the statute with similar requirements, the Court of Appeal in Batte v. Bandy (1958) 165 Cal.App.2d 527 found that "said provisions are given meaning and effect if they are construed as requiring, as a condition precedent to the issuance of an order for such substituted service, a showing by affidavit that the corporation cannot be served with the exercise of due diligence in any other manner provided by law." (Id. at p. 535.) Interpreting Corporations Code section 1702(a), courts have held "[w]e do not believe the Legislature intended to require a less effective method of service upon a corporation when a more effective method is available, or to require the courts or the Secretary of State to participate in such service except as a 'last resort' after a party has exhausted other authorized procedures." (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 312.) "Only if it can show it cannot accomplish service by one of these methods [enumerated in Corporations Code section 1702] is a party required to seek the assistance of the court and the Secretary of State in obtaining jurisdiction over such a corporate defendant." (Ibid.)
Plaintiff asks the Court to issue an order permitting Plaintiff to complete service of the FAC on Defendant via the California Secretary of State. Plaintiff contends that she has encountered numerous issues attempting to effect service on Defendant, but that despite her efforts, she has not been able to do so. (Manning Decl., ¶¶ 3-11, Exs. A-E.) Plaintiff’s process server previously attempted service at 8820 Washington Blvd. #I 01, Culver City, CA 90232, the address listed in the Statement of Information, but was not able to effect service because Defendant’s agent for service Cynthia Rowley, was no longer a tenant there and the space was rented to a restaurant. (Manning Decl., ¶¶ 3-4, Ex. A.) Plaintiff also was unsuccessful in attempting to serve Ms. Rowley at 22 Morton St., New York, which was also listed on the Statement of Information. (Manning Decl., ¶ 5, Ex. B.) Plaintiff located another address for Ms. Rowley, 30 Perry St., New York, at which she was previously able to serve Ms. Rowley with the original Complaint. Plaintiff’s process server tried to serve Ms. Rowley 3 times at that address but was ultimately told by Ms. Rowley through a doorbell microphone that she was not there and did not know when she would be there in person. (Manning Decl. ¶¶ 6, 8-9, Ex. D.) Finally, Plaintiff had been in communication with an attorney for Defendant who refused to accept service on behalf of Defendant. (Manning Decl. ¶¶ 7, 8.)
Plaintiff has demonstrated an inability to serve Defendant's agent for service and CEO, Cynthia Rowley, via personal service at the business address and her residence. (Code Civ. Proc. §§ 415.10(a); 415.20(a).) However, Plaintiff has not demonstrated any attempt to serve Defendant’s agent, out of state, by mail or by mailing an acknowledgment and receipt (Code Civ. Proc. §§ 415.30(a), 415.40). Plaintiff also declared that Defendant was previously served with the original Complaint at the 30 Perry St. address, but that efforts have not been successful to serve Defendant’s agent with the FAC at the same address. Plaintiff also submitted a declaration stating that Ms. Rowley appears to reside at the Perry St. address, but she was not sure when she would return. This is not sufficient to resort to service upon the Secretary of State.
Plaintiff has not demonstrated exhaustion of all alternative methods of service enumerated in Corporations Code section 1702 before service upon the Secretary of State may be properly authorized. The motion is DENIED without prejudice.
CONCLUSION