Judge Ronald F. Frank, Case Number: 22TRCV00611, Date: 2023-12-20 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00611, Date: 2023-12-20 Tentative Ruling

Case Number: 22TRCV00611 Hearing Date: December 20, 2023 Dept: 8

Tentative Ruling

HEARING DATE: December 20, 2023

CASE NUMBER: 22TRCV00611

CASE NAME: On Deck Capital, Inc. v. Eurotech Auto Solutions, Inc., et al.

MOVING PARTY: Plaintiff, On Deck Capital

RESPONDING PARTY: Defendant, Eurotech Auto Solutions (No Opposition)

TRIAL DATE: Not Set.

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

Tentative Ruling: (1) GRANTED. The Court seeks evidence of a natural person listed in the defendant’s corporate filings other than the former registered agent, such as an officer, incorporator, or managing agent who might be sent a copy of the summons and complaint as part of a substituted service order

I. BACKGROUND

A. Factual

On July 22, 2022, Plaintiff, On Deck Capital, Inc. (“Plaintiff”) filed a Complaint against Defendant, Eurotech Auto Solutions, Inc., Fabian Toledo, and DOES 1 through 10. The Complaint alleged a cause of action for Breach of Contract.

Plaintiff is now seeking an order directing service of summons on Defendant by delivery of process to the secretary of state.

B. Procedural

On November 30, 2023, Plaintiff filed its Motion for an order directing service of summons on Defendant by delivery of process to the secretary of state.

II. ANALYSIS

A. Legal Standard

California Corporations Code § 1702(a)

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..

B. Discussion

Here, Plaintiff contends that although the general procedure under Code of Civil Procedure § 416.10 is to serve the corporate entity through its registered agent for service of process, it has been unable to complete service in this way. Plaintiff also notes that the corporate defendant’s agent for service of process is in fact publicly listed as having a “not good” standing on the website for the secretary of state. As such, Plaintiff has concluded that the corporate defendant does not have an agent for service of process – thus, turning to California corporations code.

Plaintiff notes in the attached declaration of Max Anikstein (Ankstein Decl.”), that service on Eurotech was attempted on four occasions from May 25, 2023 until June 18, 2023. (Ankstein Decl., ¶ 5.) Plaintiff also notes that its attorney offices have conducted research concerning who was the agent for Eurotech, and was unsuccessful. (Ankstein Decl., ¶ 6.) After attempts to serve Defendant Corporation as well as attempts to find a new address for their agent, Plaintiff is now requesting this Court allow it to serve Eurotech via secretary of state. Because Plaintiff has included an affidavit detailing service attempts, exhibits in support of such, and has included a proposed order, this Court GRANTS Plaintiff’s request.

III. CONCLUSION

For the foregoing reasons, this Court GRANTS Plaintiff’s Motion for Order Directing Service of Summons on Defendant Corporation by Delivery of Process to Secretary of State, on or before January 18, 2024.

Plaintiff is ordered to provide notice.