Judge: Mark A. Young, Case: 24SMCV02486, Date: 2025-02-27 Tentative Ruling

Case Number: 24SMCV02486    Hearing Date: February 27, 2025    Dept: M

CASE NAME:           Gemigniani v. Floyd, et al.

CASE NO.:                24SMCV02486

MOTION:                  Motion for Leave to Sub-Serve Defendant via Cal. Secretary of State

HEARING DATE:   2/27/2025

Legal Standard

Corp. Code § 16310 permits service on partnerships via the California Secretary of State. It provides, in relevant part:

(a) If a partnership has designated an agent for service of process, process may be served on the partnership as provided in this section and in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure.

(b) Personal service of a copy of any process against the partnership by delivery to an individual designated by it as agent, or if the designated agent is a corporation, to a person named in the latest certificate of the corporate agent filed pursuant to Section 1505 at the office of the corporate agent, shall constitute valid service on the partnership.

[¶]

(d)(1) …if the designated agent cannot with reasonable diligence be found at the address designated for personal delivery of the process, and it is shown by affidavit to the satisfaction of the court that process against a partnership cannot be served with reasonable diligence upon the designated agent by hand in the manner provided in Section 415.10 [personal delivery], subdivision (a) of Section 415.20 [substituted service], or subdivision (a) of Section 415.30 [mail notice and acknowledgement] of the Code of Civil Procedure, the court may make an order that the service shall be made on a partnership 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 the service. Service in this manner shall be deemed complete on the 10th day after delivery of the process to the Secretary of State.

ANALYSIS

Plaintiff Staci Gemigniani moves for an order authorizing substituted service on Defendant B-B Barry LP, a California Limited Partnership, through personal service on the California Secretary of State (SOS). Plaintiff demonstrates that, despite diligent efforts, she has been unable to personally serve B-B Barry’s agent for service of process. Plaintiff presents the declaration of counsel, Larry Caldwell, who explains his efforts to serve B-B Barry. The SOS webpage shows B-B Barry’s agent for service, John Warfel, address is at 201 Santa Monica Boulevard, Suite 620, Santa Monica, CA 90401. Beginning on June 26, 2024, counsel attempted to personally serve Wafel at that address. However, this was not possible. Warfel’s office is located on the sixth floor of a building that is only accessible by elevator. When he went to the building, Mr. Caldwell discovered that the elevator is locked and access by non-tenants could only be given by the guard unlocking the elevator. The guard refused to grant access to counsel, as Warfel had not authorized the guard to grant access to counsel. Counsel encountered this same obstacle each time he attempted service. Counsel has also called and left a telephone message for Warfel, which was not returned. Counsel’s declaration shows that further attempts to serve the designated agent personally would be futile.

Plaintiff does not show diligent attempts at substitute service under CCP section 415.20 or mail service via section 415.30. Plaintiff does not explain why the security guard, authorized to control access to the defendant-partnership’s agent for service of process, would not be a “person apparently in charge” of the agent’s office. (See, e.g., Bein v. Brechtel-Jochim Grp., Inc. (1992) 6 Cal. App. 4th 1387 [corporation properly sub-served via a gate guard who had denied access gated community; residential gate guard was a person apparently in charge of the corporate office for the purpose of section 415.20, since gate guard's relationship made it more likely than not that he would deliver process to defendants].) From the facts presented, Plaintiff could sub-serve Warfel via the guard. Moreover, Plaintiff explains no effort at all to serve via section 415.30’s mailing procedure. Without making such attempts at service, relief under Corp. Code section 16310 is unavailable.

The partnership may be served by delivering summons to any general partner or to the general manager of the partnership business. (CCP § 416.40(a).)

Accordingly, the motion is DENIED without prejudice.