Judge: Michael E. Whitaker, Case: 24SMCV00965, Date: 2025-03-24 Tentative Ruling

Case Number: 24SMCV00965    Hearing Date: March 24, 2025    Dept: 207

TENTATIVE RULING

MOTION

Plaintiff Shahin Safae (“Plaintiff”) move for an order permitting them to serve the summons and complaint on Defendant KB White Construction Inc. (“Defendant”) via the Secretary of State.  The motion is unopposed. 

ANALYSIS

“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 [service by mail with notice of acknowledgment and receipt] 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), emphasis added; see also Corp. Code, § 17701.16, subd. (c) [same provisions concerning limited liability companies].) 

Plaintiffs’ counsel has provided a declaration and a non-service report indicating that attempts were made to personally serve Defendant at an address on Wilshire Boulevard, which was reported to be an invalid address, as the suite number did not exist at that address, as well as numerous attempts to personally serve Defendant at the address listed on the Secretary of State’s website.  (Boyadzhyan Decl. ¶¶ 3-5, 7-8 and Ex. B.)  Specifically, attempts were made on January 31, 2025 at 3:17 p.m.; on February 3 at 2:35 p.m.; on February 4 at 11:07 a.m.; on February 5 at 4:32 p.m.; on February 6 at 9:11 a.m.; and on February 7 at 10:50 a.m. and again at 3:19 p.m.  (Ex. B to Boyadzhyan Decl.)

But the Court finds that Plaintiff has not attempted to serve the agent for service of process at the agent’s mailing address, as registered, under Code of Civil Procedure section 415.30, and Plaintiff has not provided any information to the Court that the agent for service of process has not requested that the United States Postal Service forward mail from the agent’s mailing address, as registered.  (Cf. Watts v. Crawford (1995) 10 Cal.4th 743, 748-749, fn. 5 [“If a defendant’s address is ascertainable, a method of service superior to publication must be employed, because constitutional principles of due process of law, as well as the authorizing statute, require that service by publication be utilized only as a last resort”].)  Likewise, service on the Secretary of State is of last resort, and Plaintiff must exhaust all other reasonable methods first. 

CONCLUSION AND ORDER

Therefore, the Court denies Plaintiff’s motion to serve KB White Construction, Inc. via the Secretary of State without prejudice. 

The Clerk of the Court shall provide notice of the Court’s ruling unless Plaintiff waives notice. 

DATED:  March 24, 2025                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court