Judge: Ronald F. Frank, Case: 22TRCV00584, Date: 2023-02-17 Tentative Ruling

Case Number: 22TRCV00584    Hearing Date: February 17, 2023    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                    February 17, 2023¿ 

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CASE NUMBER:                      22TRCV00584

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CASE NAME:                            Casino, LLC, et al v. Apex Mechanical Services, Inc, et al.

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MOVING PARTY:                   Plaintiff, Casino, LLC dba Larry Flynt’s Lucky Lady Casino and Affiliated FM Insurance Company

RESPONDING PARTY:        None

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TRIAL DATE:                           None Set  

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MOTION:¿                                  (1) Motion for Order Directing Service of Summons on Defendant Roessler Design Group by Delivery of Process to Secretary of State

¿ Tentative Rulings:                   (1)  GRANTED

I. BACKGROUND¿¿ 

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A. Factual¿¿ 

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On July 14, 2022, Plaintiffs, Casino, LLC dba Larry Flynt’s Lucky Lady Casino and Affiliated FM Insurance Company (collectively “Plaintiffs”) filed this action against Apex Mechanical Services, Inc, Roessler Design Group, and DOES 1 through 10 (collectively “Defendants”) alleging a cause of action for negligence.

B. Procedural¿¿ 

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On January 6, 2023, Plaintiffs filed this Motion for Order Directing Service of Summons on Defendant Roessler Design Group by Delivery of Process to Secretary of State. No opposition has been filed.

III. ANALYSIS¿ 

A. Legal Standard

            Plaintiff relies on Code of Civil Procedure section 1702(a) which states:

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 

Moreover, in relevant part, Code of Civil Procedure section 416.10 authorizes service on a corporation by either serving the agent for service of process or “delivering a copy of the summons and complaint 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.” (Code Civ. Proc., § 416.10(b).)

 B. Discussion 

Here, Plaintiffs’ counsel has attached an exhibit of the California Secretary of State’s website show Defendant, Roessler Design Group (RDG)’s designated agent for service was Jennifer Roessler, 411 El Vuelo, San Clemente, California 92672-7513 and other information. (Declaration of Martin Schannong (“Schannong Decl.”), ¶ 2, Exhibit A.) Plaintiffs also attached a true and correct copy of a document entitled Not Found or Non Service Return from the process server hired by Plaintiffs to attempt personal service of the Summons and Complaint on Defendant. (Schannong Decl., ¶ 3, Exhibit B.) Plaintiffs assert that they have been unable to effect service of process on Defendant by delivery of a copy of the Summons and Complaint to Defendant’s designated agent for service of process in any manner specified by Code of Civil Procedure §§ 415.10, 415.20 or 415.30, although Plaintiffs have made diligent efforts to do so. (Schannong Decl., ¶ 4.)

Specifically, Plaintiff’s counsel initially hired a process server who attempted to personally serve Defendant’s agent for service at the designated address multiple times. (Schannong Decl., ¶ 5, Exhibit B.) However, Plaintiffs claim that despite the fact that the address was ostensibly valid per the records of the California Secretary of State, there was repeatedly no answer at that address. Finally, Plaintiff contends that a person answered the door and advised that Defendant RDG’s agent for service of process no longer lived there. (Schannong Decl., ¶ 5, Exhibit B.) Plaintiffs claim they then attempted to contact Defendant RDG’s counsel of record in another, related lawsuit, to no avail. Plaintiffs assert their counsel also attempted, unsuccessfully, to locate an alternative or updated service address for Defendant RDG’s agent for service of process. In addition, Plaintiffs note that they mailed copies of the Summons and Complaint and all other related documents to Defendant RDG’s designated agent, as well as to Defendant RDG’s counsel in the related case, together with a Notice and Acknowledgment of Receipt form. However, Plaintiffs claim they have received no response.

As such, this Court GRANTS Plaintiffs’ Motion for Order Directing Service of Summons on Defendant Roessler Design Group by Delivery of Process to Secretary of State

V. CONCLUSION¿¿ 

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For the foregoing reasons, Plaintiff’s Motion for Order Directing Service of Summons on Defendant Roessler Design Group by Delivery of Process to Secretary of State is GRANTED.

Moving party is ordered to give notice.¿¿¿¿ 

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