Judge: Michelle Williams Court, Case: 21STCV28138, Date: 2022-08-29 Tentative Ruling

Case Number: 21STCV28138    Hearing Date: August 29, 2022    Dept: 74

21STCV28138           QUINCY SMITH vs LOWE'S HOME CENTER, LLC, et al.

Plaintiff Quincy Smith’s Application to Serve the Secretary of State on Behalf of Defendant MCB Installations, Inc.

TENTATIVE RULING:  The motion is DENIED WITHOUT PREJUDICE.

Background

On July 29, 2021, Plaintiff Quincy Smith filed this action against Defendants Lowe’s Home Centers, LLC and Lowes Companies, Inc. On October 12, 2021, the clerk entered Plaintiff’s request to dismiss Defendant Lowe’s Companies, Inc. without prejudice. On January 25, 2022, Plaintiff substituted MCB Installations, Inc. for Doe 1.

On February 8, 2022, the Court entered the parties’ stipulated order granting Plaintiff leave to file an amended complaint and staying the action. The order provided “[t]he Court orders this matter STAYED and orders the Parties to arbitrate the question of whether Plaintiff’s claims for negligent misrepresentation and professional negligence, as currently pled, are within the scope of the Parties’ arbitration agreement.”

On March 11, 2022, the Court held a status conference in which counsel indicated they “will initiate arbitration once defendant MCB Installation Inc. appears in the case.”

On April 26, 2022, Plaintiff filed a First Amended Complaint asserting claims for negligent misrepresentation, professional negligence, and negligence arising out of the installation of windows on a property owned by Plaintiff.

Motion

On July 29, 2022, Plaintiff filed his Application to Serve the Secretary of State on Behalf of Defendant MCB Installations, Inc. as a noticed motion.

The motion is unopposed. (Code Civ. Proc. § 1005(c).)

Discussion

Standard

Corporations Code section 1702(a) governs requests to serve a corporation via the Secretary of State. The statute provides:

If . . . the agent designated cannot with reasonable diligence be found at the address designated for personally delivering the process, . . . 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).)

Plaintiff Has Not Satisfied the Requirements of Corporations Code section 1702

Plaintiff’s motion is accompanied by the declaration of his counsel who states: “After the filing of the First Amended Complaint, my office has attempted to personally serve MCB Installations, Inc.’s agent for service, Mr. Louis Otrtrando, [sic] at his residence located at 611 Lakewood Way, Upland, CA 91786 on the following dates and times: 5/7/2022 at 2:20 pm; 5/10/2022 at 7:44 pm; 5/13/2022 at 7:52 am; 5/18/2022 at 9:27 am; 5/20/2022 at 7:56 pm; and 5/28/2022 at 11:45 am. During our process server’s first attempt to serve Mr. Ottrando at the designated address, a young female stated that Mr. Ottrando was not home. On the subsequent five attempts, there were no answers at the door.” (Ivie Decl. ¶ 2.) Defendant’s counsel did not respond to correspondence regarding the failed attempts at service. (Id. ¶ 3.)

A declaration in support of a request to serve a corporation must demonstrate “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.”

Construing the prior version of the statute with similar requirements, the Court of Appeal in Batte v. Bandy (1958) 165 Cal.App.2d 527 found that “said provisions are given meaning and effect if they are construed as requiring, as a condition precedent to the issuance of an order for such substituted service, a showing by affidavit that the corporation cannot be served with the exercise of due diligence in any other manner provided by law.” (Id. at 535.) Interpreting Corporations Code section 1702(a), courts have held “[w]e do not believe the Legislature intended to require a less effective method of service upon a corporation when a more effective method is available, or to require the courts or the Secretary of State to participate in such service except as a ‘last resort’ after a party has exhausted other authorized procedures.” (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 312.) “Only if it can show it cannot accomplish service by one of these methods [enumerated in Corporations Code section 1702] is a party required to seek the assistance of the court and the Secretary of State in obtaining jurisdiction over such a corporate defendant.” (Ibid.)

Plaintiff has demonstrated an inability to serve MCB Installations, Inc.’s agent for service and CEO, Louis Ottrando, via personal or substitute service at his residence. (Code Civ. Proc. §§ 415.10(a); 415.20(a).) This is not insufficient to resort to service upon the Secretary of State.

Plaintiff has not demonstrated any attempt to serve Defendant by mailing an acknowledgment and receipt, (Code Civ. Proc. § 415.30(a)), or via any other individual employed by Defendant with the titles enumerated in Code of Civil Procedure section 416.10(b): “A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods: . . . 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.”

Plaintiff must demonstrate exhaustion of all alternative methods of service enumerated in Corporations Code section 1702 before service upon the Secretary of State may be properly authorized. (Gibble, supra, 67 Cal.App.4th at 312; Batte, supra, 165 Cal.App.2d at 535.) The motion is DENIED without prejudice.