Judge: Theresa M. Traber, Case: 24STCV02602, Date: 2024-05-30 Tentative Ruling

Case Number: 24STCV02602    Hearing Date: May 30, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     May 30, 2024             TRIAL DATE: NOT SET

CASE:                         Audrey Witte, et al. v. Hotel Nue Holdings, LLC, et al.

CASE NO.:                 24STCV02602           

MOTION FOR ORDER AUTHORIZING SERVICE OF PROCESS FOR S3D PARTNERS, LLC ON THE CALIFORNIA SECRETARY OF STATE

MOVING PARTY:               Plaintiffs Audrey White and Kevin Stack

RESPONDING PARTY(S): No response on eCourt as of 5/24/24.

CASE HISTORY:

·         01/31/24: Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of contract and wage and hour violations. Plaintiffs allege that Defendants failed to properly pay Plaintiffs’ wages.

Plaintiffs move for an order authorizing service of process for S3D Partners, LLC on the California Secretary of State.

TENTATIVE RULING:

            Plaintiffs’ Motion for Order Authorizing S3D Partners LLC to be Served with Process via Service on the California Secretary of State is GRANTED.

DISCUSSION:

            Plaintiffs move for an order authorizing service of process for S3D Partners, LLC on the California Secretary of State.

            Plaintiffs bring this motion under Corporations Code section 17701.16(c), which provides:

If an agent for service of process has resigned and has not been replaced or if the designated agent cannot with reasonable diligence be found at the address designated for personal delivery of the process, and it is shown by affidavit to the satisfaction of the court that process against a limited liability company or foreign limited liability company 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, the court may make an order that the service shall be made upon a domestic limited liability company or upon a registered foreign limited liability company 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 the service. Service in this manner shall be deemed complete on the 10th day after delivery of the process to the Secretary of State. 

(Corp. Code § 17701.16(c).) 

Whether Agent Resigned or Cannot Be Found with Reasonable Diligence 

The Declaration of Attorney Chaka C. Okadigbo indicates that his office hired InfoTrack US Inc., otherwise known as OneLegal, to serve process on S3D Partners, LLC via Jayesh Kumar, its designated agent for service of process according Defendant’s current Statement of Information filed with the Secretary of State. (Declaration of Chaka C. Okadigbo ISO Mot. ¶¶ 3-4; Exh. A.) OneLegal dispatched a registered process server to serve Defendant’s agent for service of process at the address listed in Defendant’s records with the Secretary of State, but after two attempts to do so, the process server was informed by another individual that Mr. Kumar no longer resides at that address. (Id. Exh. B.)

Accordingly, Plaintiffs have satisfied their burden to show, by affidavit, that Defendant’s agent for service of process could not be found with reasonable diligence. 

Whether Service Can be Made with Reasonable Diligence

As noted, Plaintiff was unable to serve Defendant’s agent by personal service (Code Civ. Proc. § 415.10) with reasonable diligence. (Okadigbo Decl. Exh. B.) The declarations of due diligence by Plaintiff’s registered process server also indicate that no one answered the door on any of his attempts at service. (Id.) As no individuals residing at the property were ever located, Plaintiffs’ process server had no opportunity to attempt substitute service. Thus, Plaintiffs have satisfied their burden to show that Defendant could not be served with reasonable diligence by personal service or substitute service. 

As to mail with acknowledgment of receipt, Plaintiff’s counsel declares that his office mailed a notice and acknowledgment and receipt to Defendant pursuant to Code of Civil Procedure section 410.30(a) on February 9, 2024 and has not received the acknowledgment and receipt to date. (Okadigbo Decl. ¶¶ 7-8.) Thus, Plaintiffs have also satisfied their burden to show that Defendant could not be served with reasonable diligence by mail with acknowledgment and receipt. 

CONCLUSION:

            Accordingly, Plaintiffs’ Motion for Order Authorizing S3D Partners LLC to be Served with Process via Service on the California Secretary of State is GRANTED.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  May 30, 2024                         ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.