Judge: Virginia Keeny, Case: 22VECV00172, Date: 2022-08-24 Tentative Ruling

Case Number: 22VECV00172    Hearing Date: August 24, 2022    Dept: W

DOUGLAS EMMETT 1998, LLC v. EMPIRE DIAMOND CORPORATION, et al.

MOTION FOR ORDER AUTHORIZING SERVICE OF SUMMONS AND COMPLAINT ON SECRETARY OF STATE

Date of Hearing:  August 24, 2022                       Trial Date: None set

Department:  W                                                        Case No.: 22VECV00172

Moving Party: Plaintiff Douglas Emmett 1998, LLC

Responding Party:  None

BACKGROUND

Plaintiff Douglas Emmett 1998, LLC alleges that, on or about May 22, 2001, Plaintiff leased office premises located at 15910 Ventura Boulevard, Suite 812, Encino, CA 91436 to Defendant Empire Diamond Corporation pursuant to a written office lease.  The lease was subsequently amended to extend the terms of the original lease through September 30, 2023.  Plaintiff alleges Defendant unilaterally abandoned possession of the leased premises on July 7, 2020, prior to the expiration of the lease.  While Plaintiff was ultimately able to procure a replacement tenant, Plaintiff alleges it sustained damages due to Defendant’s default under the lease by failing to pay rent, additional rent, and late charges and interest due.

On February 3, 2022, Plaintiff filed a complaint against Defendant for breach of lease.

Plaintiff now moves for a court order authorizing Plaintiff to serve the summons and complaint on the Secretary of State.

[Tentative] Ruling

Plaintiff Douglas Emmett 1998, LLC’s Motion for Order Authorizing Service of Summons and Complaint on Secretary of State is DENIED.

LEGAL STANDARD

Corporations Code section 1702 provides the following:

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, § 1702(a).)

CCP section 416.10 provides that a summons may be served on a corporation by delivering a copy of the summons and complaint (1) to the person designated as agent for service of process; (2) 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(a), (b).)

DISCUSSION

According to Plaintiff’s counsel, Defendant does not have an agent for service of process designated with the California Secretary of State and there is no registration of Defendant with the California Secretary of State.  (Motion, Brackins Decl., ¶ 3.)  Plaintiff’s counsel declares that Plaintiff has conducted a diligent search to locate some officer, director or managing agent of Defendant’s upon which service of process can be effectuated, and that such investigation failed to reveal any such person within the State of California.  (Id., ¶ 4.)  Plaintiff’s counsel indicates that there is an office in New York and Plaintiff has written to that office twice with no response.  (Id.)

The Court finds Plaintiff has failed to sufficiently demonstrate reasonable diligence in attempting to serve Defendant.  While Plaintiff’s counsel declares Defendant does not have an agent for service of process designated with the California Secretary of State and, in fact, has not registered with the California Secretary of State, Plaintiff fails to submit any documentary evidence corroborating these statements, such as the results of a business entity search with the California Secretary of State. 

Additionally, while Plaintiff’s counsel has indicated a search was conducted to locate an officer, director, or managing agent of Defendant’s, Plaintiff has failed to set forth any facts showing what efforts were taken to attempt to locate an officer, director, or managing agent and an address for such person where they can be served.  Without such details, the Court cannot find any of Defendant’s agents cannot be served with reasonable diligence pursuant to CCP sections 415.10, 415.20, 415.30, or 416.10. 

The Court notes that the lease agreement was signed by Defendant’s vice president, Alexander Brod.  (Motion, Brackins Decl., ¶ 2, Ex. A.)  Plaintiff has not submitted any evidence showing Brod is no longer Defendant’s vice president or officer and/or cannot be served with reasonable diligence.  A review of the amendments to the lease agreement attached to the complaint show that Brod was still an officer of Defendant’s as of December 20, 2017.  (Complaint, Ex. D.)

Based on the foregoing, the motion is denied without prejudice.