Judge Stephen Morgan, Case 20AVCV00921 2022-08-09 Tentative Ruling

Judge: Stephen Morgan, Case: 20AVCV00921, Date: 2022-08-09 Tentative Ruling

Department A14 Tentative Rulings

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

Case Number: 20AVCV00921 Hearing Date: August 9, 2022 Dept: A14

Background

This is a personal injury action. Plaintiff Mohamed Elbeih (“Plaintiff”) alleges that on or about January 20, 2019 at 5:30 am, Plaintiff was in his car at the intersection of SR-138 and Longview Road, waiting for the light to turn green. Plaintiff was rear ended by a freight tractor driven by Defendant Philip Decoud (“Decoud”) and sustained injuries and damages. Plaintiff further alleges that Defendant HJS Transport, LLC (“HJS” and collectively “Defendants”) is the owner of the freight tractor and the employer of Decoud.

On December 29, 2020, Plaintiff filed its Complaint against Defendants, alleging four causes of action for: (1) Negligence, (2) Motor Vehicle Negligence, (3) Negligence Per Se under CVC §22350, and (4) Negligent Entrustment.

On March 29, 2022, Decoud filed his Answer.

On June 17, 2022, Plaintiff filed this Motion for Order Permitting Service on the Secretary of State on Behalf of HJS (“Motion for Substituted Service”).

No Opposition has been filed. All opposition papers must be filed and served at least nine court days before the hearing. (Cal. Code Civ. Proc. § 1005(b).) The hearing is set for August 09, 2022. Should an Opposition be filed, it is now untimely.

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Analysis

Standard for Substituted Service on the Secretary of State – Corporations Code section 1702(a) provides:

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.

“The court order must be based upon a factual showing (by declaration) that process cannot be served with reasonable diligence upon (i) the corporation’s designated agent (i.e., because the agent resigned and was not replaced or cannot be found at the designated address or if no agent was appointed); and (ii) the corporation by any other authorized method. [Corps. C. § 1702(a).]” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2020) ¶ 4:148.)

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Discussion

Application – Plaintiff presents that he has attempted to serve HJS with the Summons and Complaint several times, but is unable to locate HJS for service. Plaintiff moves the Court for an order permitting substituted service on the Secretary of State of California on behalf of HJS.

Plaintiff includes the declaration of its counsel, Angelo F. Campano (“Campano”), which states that the attempts to personally serve HJS in three different locations were all unsuccessful. (Decl. Campano, ¶ 6.) The declaration includes a list of the attempts of the process server to serve HJS:

02/22/22 3:35pm 9227 Haven Avenue Suite 330, Rancho Cucamonga, CA 91370. NO ANSWER. There is a Four Clover Homes Inc. One lady who claimed had been there for years said she did not know the subject. Did not find the name of the subject on the directory. (Registered address for agent for service of process.)
02/24/22 11:22 am 3867 Quartzite Lane, San Bernardino, CA 92408. NO ANSWER. No noise, no cars at the driveway, door locked, no curtains at the windows. (Registered address for the company, manager, and CEO per California Secretary of State.)
02/24/22 11:52 am 1658 Doral Drive, Upland, CA 91784. NO ANSWER. No access, jump the wall and rang the bell 6 times, nobody came to the door, dog barking inside. (Business address on U.S. Department of Transportation licensing and insurance information.)
02/25/22 8:30 am 3867 Quartzite Lane, San Bernardino, CA 92408. NO ANSWER. No cars at the driveway, light of the front porch on, rang the doorbell 6 times and nobody came to the door in 10 minutes. (Registered address for the company, manager and CEO per California Secretary of State.)
02/25/22 9:07 am 1658 Doral Drive, Upland, CA 91784. NO ANSWER. Rang the doorbell 6 times, wait 10 minutes, nobody came to the door, dog barking inside. (Business address on U.S. Department of Transportation licensing and insurance information.)
02/28/22 6:03 pm 3867 Quartzite Lane, San Bernardino, CA 92408. NO ANSWER. No noise, no cars at the driveway, property locked, no curtains at the windows, no lights on except the light at the front porch. Went different times of the day, appears nobody lives there. (Registered address for the company, manager, and CEO per California Secretary of State.)
02/28/22 6:41 pm 1658 Doral Drive, Upland, CA 91784. NO ANSWER. Gate not locked, rang the bell 6 times, nobody came to the door in 7 minutes, dog barking inside, light on the front porch was on. (Business address on U.S. Department of Transportation licensing and insurance information.)
03/03/22 6:36 pm 1658 Doral Drive, Upland, CA 91784. NO ANSWER. A lady (34 yrs, 5’7ft, 135lbs, black hair, brown eyes, AA) said nobody on that house under that name, the company HJS was also not familiar to her. (Business address on U.S. Department of Transportation licensing and insurance information.)

This is also evidenced by Campano’s declaration Exhibit C, a true and correct copy of efforts to serve HJS personally.

Campano states that Plaintiff could neither leave copies of the summons and complaint where service was attempted nor attempt to serve by notice and acknowledgement, because each location claimed to the process server to not be affiliated with or know HJS. (Decl. Campano ¶ 11,12.)

Cal. Corp. Code § 1702 requires a declaration showing that “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.” (Cal. Corp. Code § 1702(a).) The listed sections include the following manners of service: personal delivery, leaving a copy at the office or home address of the person to be served, mail or, for a corporation, to an agent for service of process, president, CEO, or other head of the corporation, vice president, secretary or assistant secretary, treasurer or assistant treasurer, controller or CFO, general manager, or person authorized by the company to receive service of process. If a corporation is dissolved or forfeited its charter, a summons may be served to a person who is trustee of the corporation and of its stockholders or members. (Cal. Code Civ. Proc. § 416.20.)

Here, Plaintiff tried to serve the two addresses on Secretary of State Statement of Information, one is the business address of HJS as well as the address of the CEO and manager Dena Sorouri, another address is for the appointed agent for service of process, Donnie Jones. (Motion for service, Exh. D.) Plaintiff also tried to serve HJS’s business address showed on U.S. Department of Transportation Licensing and Insurance Information and U.S. Department of Transportation Company Snapshot. (Application to Allow Publication, Exh. C, D.) All the listed attempts failed as the three addresses appears vacant. Plaintiff could not serve by leaving a copy of the summons and complaint in his or her office with the person who is apparently in charge thereof, because two ladies appeared claimed to not be affiliated with HJS. (Decl. Campano ¶ 11,12.) HJS is still active with the

California Secretary of State, it is not in good standing only with the Franchise Tax Board; thus, HJS is not dissolved, and Plaintiff don’t need to serve trustees of the company and members. (Decl. Campano ¶ 8.)

Therefore, the Court finds that process cannot be served with reasonable diligence upon (i) the corporation’s designated agent (i.e., because the agent resigned and was not replaced or cannot be found at the designated address or if no agent was appointed); and (ii) the corporation by any other authorized method.

Accordingly, the Motion for Substituted Service on the Secretary of State is GRANTED.

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Conclusion

Plaintiff Mohamed Elbeih’s Motion for an Order Permitting Service on the Secretary of State on Behalf of Defendant HJS Transport, LLC is GRANTED.