Judge: Stephanie M. Bowick, Case: 23STCV04614, Date: 2024-11-12 Tentative Ruling
DEPARTMENT 19 LAW AND MOTION RULINGS
If you desire to submit on a tentative ruling, you may do so by e-mailing Dept. 19 before 08:00 a.m. on the day of the motion hearing. The e-mail address for submitting is SMCDept19@lacourt.org. The heading on your e-mail must contain the case name and number, and that you submit. For example, "Smith v. Jones BC551124, submit". The message should indicate your name, contact information, and the party you represent.
PLEASE NOTE, The above e-mail address is only to inform the Court of your submission on the tentative ruling. All other inquiries or correspondence will not receive a response.
Case Number: 23STCV04614 Hearing Date: November 12, 2024 Dept: 19
PLAINTIFF’S MOTION
FOR ORDER TO SERVE SECRETARY OF STATE THE SUMMONS AND COMPLAINT IS GRANTED
TENTATIVE RULING
After consideration of the briefing filed and oral argument at the hearing, Plaintiff Kerie Hernandez’s Motion for an Order Allowing Service of Summons and Complaint on Building Lives, LLC By Serving The Secretatary [sic] of State or in the Alternative, Finding That Defendant Has Appeared In This Matter Through Counsel and Setting an OSC As To Why Defendant’s Default Should Not Be Entered And/Or Ordering Said Defendant To Respond To The Complaint is GRANTED as follows:
The Court GRANTS Plaintiff’s request for an order allowing Plaintiff to serve Defendant Building Lives, LLC “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… together with a copy of the order authorizing such service.” (Corp. Code, § 1702(a).)
STATEMENT OF THE CASE
This is an employment dispute action. Plaintiff Kerie
Hernandez (“Plaintiff”) brings suit against Defendant Building Lives, LLC
(“Defendant”) alleging the following causes of action:
1. Disability Discrimination;
2. Failure to Accommodate;
3. Failure to Engage in the Interactive
Process;
4. Retaliation in Violation of Government
Code § 12940 (h) (FEHA);
5. Retaliation and Wrongful Termination
in Violation of Labor Code § 1102.5;
6. Failure to Prevent Discrimination and
Retaliation;
7. Constructive Discharge;
8. Wrongful Termination in Violation of
FEHA;
9. Wrongful Termination in Violation of
Public Policy;
10. Hostile Work Environment;
11. Intentional Infliction of Emotional
Distress;
12. Violation of Labor Code §§ 226.7,
512(a) (Unpaid Meal Period Premiums); and
13. Violation of Labor Code § 226.7
(Unpaid Rest Period Premiums.
Plaintiff filed the instant Motion for an Order Allowing Service of Summons and Complaint on Building Lives, LLC By Serving The Secretatary [sic] of State or in the Alternative, Finding That Defendant Has Appeared In This Matter Through Counsel and Setting an OSC As To Why Defendant’s Default Should Not Be Entered And/Or Ordering Said Defendant To Respond To The Complaint (the “Motion”).
GROUNDS FOR MOTION
Pursuant to Code of Civil Procedure section 416.10, subdivision (d) and Corporations Code section 1702, subdivisions (a) and (d), Plaintiff moves for an order allowing it to effectuate service of process on Defendant by way of service upon the California Secretary of State.
In the alternative, Plaintiff requests that the Court find that Defendant appeared in the matter through counsel and for either (1) the issuance of an Order to Show Cause as to why Defendant’s default should not be entered; or (2) an order deeming Defendant to have been served and for a responsive pleading to be filed within ten (10) days.
DISCUSSION
Code of Civil Procedure section 416.10, subdivision (d) provides that “[a] summons may be served on a corporation by delivering a copy of the summons and the complaint” by the following method:
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(d).)
Corporations Code section 1702, subdivision (a) provides as follows:
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, § 1700(a).)
The Court considers as evidence the declaration of Abraham Mathew attached to the Motion.
After consideration of the declaration of Abraham Mathew, the Court is satisfied that Defendant’s agent could not, with reasonable diligence, be served with process in the manner provided by Code of Civil Procedure section 415.10, section 415.20, subdivision (a), section 415.30, section 416.10, subdivisions (a), (b), or (c), and/or section 416.20.
Plaintiff provides sufficient evidence that the address designated for such service is 5302 Valley Ridge Ave., Windsor Hills, CA 90043, (Abraham Mathew Decl., ¶¶ 5-6, Exs. B-C), but that a process server hired by Plaintiff could not with reasonable diligence effectuate service of the Summons and Complaint on Defendant at that address. (Id. at ¶¶ 4, 7, Ex. A.)
Accordingly, the Court GRANTS Plaintiff’s Motion for an
order allowing Plaintiff to serve Defendant “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… together
with a copy of the order authorizing such service.”
Plaintiff is to submit a proposed Order within 5 days.