Judge: Mark A. Young, Case: 19SMCV00329, Date: 2022-08-26 Tentative Ruling

Case Number: 19SMCV00329    Hearing Date: August 26, 2022    Dept: M

CASE NAME:           Dutton, et al., v. Domanovski, et al.

CASE NO.:                19SMCV00329

MOTION:                  Motion for Leave to Serve Process on the Secretary of State

HEARING DATE:   08/26/2022

Legal Standard

Corporations Code section 1702 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. 

(Corp. Code, § 1702(a).)

EVIDENTIARY ISSUES

Plaintiffs James and Patricia Dutton’s request for judicial notice is GRANTED.

Analysis

On July 13, 2022, the Court granted Plaintiffs leave to file the operative Second Amended Complaint (SAC), which added Defendant Barry E. Cohen, a professional corporation (“BEC”). The SAC was filed on July 22, 2022.

Plaintiffs move for leave to serve BEC via the Secretary of State. The Court notes that Plaintiffs cite the incorrect statute. Corporations Code sections 2110 and 2111 deal with foreign corporations. BEC is organized under the laws of California. (SAC ¶158.) Thus, Corporations Code section 1702 applies to this application. The statutes substantively mirror each other, so the error is harmless.

Mr. Barry Edward Cohen is listed as the agent for service of process for BEC. (RJN Ex. 1.) Mr. Cohen died on January 7, 2022. (RJN Ex. 3, see Ex. A [Death Certificate].) Mr. Cohen also acted as the CEO, CFO and Director. As such, Plaintiffs cannot, with reasonable diligence, find the designated agent at the address indicated. However, another person, Letty Saenz, acts as Secretary. Plaintiffs do not state whether service was attempted at the 10866 Wilshire Blvd., Suite 890, address. As such, Plaintiffs failed to show that BEC cannot be served via that secretary with reasonable diligence. (CCP § 416.10(b).)

Accordingly, Plaintiffs’ motion is CONTINUED to allow for reasonable efforts at service.  To the extent that those efforts have already occurred, Plaintiffs may file a supplemental declaration addressing the attempts at service.