Judge: Michael E. Whitaker, Case: 24SMCV02864, Date: 2024-12-18 Tentative Ruling

Case Number: 24SMCV02864    Hearing Date: December 18, 2024    Dept: 207

TENTATIVE RULING

MOTION

On June 13, 2024, Plaintiff Weber-Madgwick Excavating, Inc. (“Plaintiff”) brought suit against Defendants Silverston & Associates, Inc. (“Defendant”) and California Create & Design, LLC (“CC&D”) alleging four causes of action for (1) breach of contract; (2) foreclosure of mechanic’s lien; (3) recovery on mechanic’s lien release bond; and (4) quantum meruit.  On November 7, 2024, Plaintiff dismissed CC&D voluntarily.

Plaintiff now moves for an order permitting Plaintiff to serve the summons on Defendant via the California Secretary of State.  The motion is unopposed.

LEGAL STANDARD

            “A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served.”  (Code Civ. Proc., § 415.10.)

            “In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof.”  (Code Civ. Proc., 415.20, subd. (a).)

            Further, “A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.”  (Code Civ. Proc., § 415.30, subd. (a).)

“A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods:

(a) To the person designated as agent for service of process as provided by any provision in Section 202, 1502, 2105, or 2107 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).

(b) To the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.

(c) If the corporation is a bank, to a cashier or assistant cashier or to a person specified in subdivision (a) or (b).

(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.)  However,

“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.” 

(Corp. Code, § 1702.)

ANALYSIS

            To serve a corporation by way of the Secretary of State, the moving party must establish by declaration that it cannot, through reasonable diligence, serve the corporation (1) personally; (2) by substitute service; or (3) by mailing a notice of acknowledgment and receipt.

In support of the motion, Plaintiff advances the declaration of Bruce D. Rudman, which provides:

3. Within the statutory time frame required to serve a defendant following the filing of our Complaint in this matter, we attempted to serve process on Sunshine Alana Armstrong, the purported Registered Agent for Silverston & Associates, Inc. as indicated on the California Secretary of State Online Business Search website, at her address of 26663 Latigo Shore Drive, Malibu, California, 90265. Attached hereto and incorporated herein by this reference as Exhibit “A” is a true and correct copy of the printout from the Secretary of State Online Business Search results for Silverston & Associates, Inc.

4. Shortly after attempting to serve the identified registered agent at that address, our process server provided a Non-Service Report which stated that, upon attempting service of process upon Ms. Armstrong at the above address, he was told by a male subject identifying himself as Ms. Armstrong’s father that the owner of Silverston & Associates, Inc. is actually her ex-husband, Gary Armstrong. This person further stated that Ms. Armstrong has “never been affiliated to” Silverston & Associates, Inc. Attached hereto and incorporated herein by this reference as Exhibit “B” is a true and correct copy of the Non-Service Report.

5. We can only surmise that following her divorce from Gary Armstrong, the principal of SILVERSTON & ASSOCIATES, Sunshine Armstrong either refuses to act or is no longer authorized to act as the corporation’s registered agent.

6. We have no other address for the corporation.

7. Given the above circumstances, it is clear we are unable to serve the listed Registered Agent using a traditional process server, and are thus obliged to submit this Request in order to serve the Secretary of State on behalf of Defendant Silverston & Associates, Inc.

(Rudman Decl. ¶¶ 3-7.)

            The Court does not find that Plaintiff has demonstrated the requisite diligence prior to resorting to service on the California Secretary of State.  Although the Rudman declaration indicates Sunshine Armstrong is either no longer or never was Defendant’s agent for service of process, such that personal or substitute service at her address would not effectuate service on Defendant, Plaintiff has proffered no evidence of any diligent efforts to find and serve Gary Armstrong, the owner, or, importantly, any attempts at service by mail with notice of acknowledgment and receipt.  Not only is a diligent attempt at service by mail required by the statute, but because mail can be automatically forwarded to a new address by the post office, serving a bad address by mail may actually reach the intended recipient.

CONCLUSION AND ORDER

Therefore, the Court denies without prejudice Plaintiff’s Motion to Serve Defendant by the Secretary of State. 

Further, on the Court’s own motion, the Court continues the Case Management Conference and the Order to Show Cause Re: Monetary Sanctions for Failure to File Proof of Service of the Summons and Complaint on Defendant Silverston & Associates, Inc. from February 20, 2025 to May 22, 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). 

DATED:  December 18, 2024                        ________________________________

                                                                        Michael E. Whitaker

                                                                        Judge of the Superior Court