Judge: Michael E. Whitaker, Case: 24SMCV02391, Date: 2024-08-29 Tentative Ruling

Case Number: 24SMCV02391    Hearing Date: August 29, 2024    Dept: 207

TENTATIVE RULING

MOTION

Plaintiffs Foot on Necks, LLC; Petapult, LLC; SMC & Co; Playa Standard, Inc.; Derek Holt; and Sweet Junkies Candies, LLC (collectively, “Plaintiffs”) move for an order permitting them to serve the summons and complaint on Defendants Uuvo, Inc. and Uuvo Capital, LLC (collectively, “Uuvo”) via the Secretary of State.  Plaintiffs’ motions are unopposed. 

ANALYSIS

A party may serve a summons on a corporation or limited liability company via its designated agent for service of process.  (Code Civ. Proc., §§ 416.10, subd. (a);  416.90.) 

Regarding corporations, “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); 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 a registered process server attempted unsuccessfully to serve Uuvo twice on May 29, 2024 at the address for Uuvo’s agent for service of process listed on the Secretary of State’s website.  (Wilson Decl. at ¶ 7 and Ex. A.)  Specifically, attempts were made at 4:12 pm and 4:22 pm.  (Ibid.) 

Thereafter, counsel obtained an investigative research report, which indicated Uuvo’s agent for service of process no longer lived at the address as of April 10, 2024.  (Wilson Decl. ¶ 8 and Ex. B.)  Counsel also called Uuvo’s agent for service of process on the telephone, but the agent refused to provide an updated address.  (Wilson Decl. ¶ 9.)

The Court does not find that counsel attempted to serve Defendants with “reasonable diligence.”  As a threshold matter, counsel’s process server attempted to serve the agent for service on only one occasion, with two attempts made 10 minutes apart. 

Equally important, although counsel’s subsequent investigation revealed that the agent no longer lived at the address listed on the Secretary of State’s website, counsel did not attempt, for example, to mail a notice of acknowledgment and receipt to the agent’s registered address as required under Corporations Code sections 1702 and 17701.16.  Given that the agent apparently only moved about one month before the service attempt was made, postal mail to the old address may be forwarded to the new address, or counsel may obtain a forwarding address from the postal service through an attempt to serve the agent by mail under Code of Civil Procedure section 415.30. 

CONCLUSION AND ORDER

Therefore, the Court denies without prejudice Plaintiffs’ motions to permit service of the summons and complaint on the Secretary of State as to Defendants Uuvo, Inc. and Uuvo Capital, LLC.

Further, on the Court’s own motion, the Court will take Plaintiffs’ Application for Publication regarding Defendant Karis Dowe under submission.  A hearing on such application is unnecessary.  (See Rios v. Singh (2021) 65 Cal.App.5th 871, 883 [“an application for an order of publication of the summons may be made at an ex parte hearing”].)  Accordingly, the Court vacates the hearing on such application set on September 16, 2024. 

Further, on the Court’s own motion, the Court continues the Case Management Conference from September 17, 2024 to January 30, 2025 at 8:30 A.M. in Department 207.   All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences.  In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725). 

To the extent required, Plaintiff shall provide notice of the Court’s orders and file the notice with a proof of service forthwith. 

DATED:  August 29, 2024                                                     ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court