Navigators Specialty Insurance Company v. SVO Building One, LLC ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NAVIGATORS SPECIALTY Case No. 22-cv-07102-JSC INSURANCE COMPANY, 8 Plaintiff, ORDER DENYING MOTION FOR 9 SERVICE THROUGH SECRETARY v. OF STATE 10 SVO BUILDING ONE, LLC, Re: Dkt. No. 12 11 Defendant. 12 13 Plaintiff moves to serve Defendant through the Secretary of State under Federal Rule of 14 Civil Procedure 4, California Civil Code § 416.10(d), and California Corporations Code § 1702(a). 15 After carefully considering the arguments and briefing submitted, the Court concludes that oral 16 argument is unnecessary. See Civ. L.R. 7-1(b). The motion is DENIED without prejudice because 17 Plaintiff has failed to show reasonable diligence under California Code of Civil Procedure 18 415.30(a). The hearing scheduled for March 9, 2023 is VACATED. 19 BACKGROUND 20 Plaintiff is an insurance company formed in New York with its principal place of business 21 in Connecticut. (Dkt. No. 1 ¶ 1.) Defendant is a limited liability company with one member, 22 Nicholas Laag. (Id. ¶ 3.) Laag is believed to be a California citizen. (Id.) He is also listed as 23 Defendant’s Chief Executive Officer. (Dkt. No. 13-2.) Plaintiff filed this suit seeking 24 reimbursement for costs associated with defending an underlying lawsuit against Defendant and 25 for declaratory relief regarding the parties’ contractual relationship. (Dkt. No. 1-1 ¶ 29, 46.) 26 Plaintiff first attempted to serve Defendant’s registered agent, Jennifer Przygrodzka, at an 27 address in McClellan, California on December 23, 2022. (Dkt. Nos. 12-2; 13-2.) The address 1 process server noted “Subject not known, company not known.” (Id.) Plaintiff then attempted 2 service upon the address listed as Defendant’s principal business office: 3140 Peacekeeper Way, 3 Suite 101A, McClellan, CA 95652. (Dkt. No. 12-3.) The process server noted “Building under 4 reconstruction, one construction workers [sic] around, non-operational.” (Id.) 5 Finally, Plaintiff attempted to serve Laag at the address he listed with the California 6 Secretary of State: 110 Pacific Avenue in San Francisco, California. A process server staked out 7 this residential location on three occasions between January 20, 2023 and January 22, 2023. (Dkt. 8 No. 12-4.) Laag’s name is on a call box at that address, but he did not answer when buzzed. (Id.) 9 The process server watched the building for one to two hours on three occasions at varied times of 10 day, but did not see anyone enter or exit the building. (Id.) Three vehicles close to the building 11 were investigated but deemed unassociated with Laag. (Id.) Because Plaintiff has yet to 12 successfully serve Defendant, Plaintiff brings this motion to serve Defendant through the 13 California Secretary of State. 14 DISCUSSION 15 I. Service of Process Rules 16 Pursuant to Rule 4(e) of the Federal Rules of Civil Procedure, a plaintiff may serve process 17 by “following state law for serving a summons in an action brought in courts of general 18 jurisdiction in the state where the district court is located or where service is made[.]” Fed. R. Civ. 19 P. 4(e)(1). Pursuant to Rule 4(h), a corporation must be served according to Rule 4(e) or “by 20 delivering a copy of the summons and of the complaint to an officer, a managing or general agent, 21 or any other agent authorized by appointment or by law to receive service of process....” Fed. R. 22 Civ. P. 4(h)(1)(A)-(B). Pursuant to section 1702(a) of the California Corporations Code, 23 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 24 diligence be found at the address designated for personally delivering the process, or if no agent has been designated, and it is shown by 25 affidavit to the satisfaction of the court that process against a domestic corporation cannot be served with reasonable diligence upon the 26 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 27 of the Code of Civil Procedure or upon the corporation in the manner make an order that the service be made upon the corporation by 1 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 2 or deputy, one copy of the process for each defendant to be served, together with a copy of the order authorizing such service. 3 Cal. Corp. Code § 1702(a) (emphasis added). Sections 415.10, 415.20, and 415.30 of the 4 California Code of Civil Procedure provide the rules for personal service and service by mail. 5 Sections 416.10 and 416.20 of the California Code of Civil Procedure provide the rules for service 6 on a corporation. 7 In addition to delivery to a designated agent, section 416.10 provides that a summons may 8 be served on a corporation “[t]o the president, chief executive officer, or other head of the 9 corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a 10 controller or chief financial officer, a general manager, or a person authorized by the corporation 11 to receive service of process.” Cal. Civ. Proc. Code § 416.10(b). “[A]s a condition precedent to the 12 issuance of an order for such substituted service,” a plaintiff's affidavit must establish that “the 13 corporation cannot be served with the exercise of due diligence in any other manner provided by 14 law.” Batte v. Bandy, 165 Cal. App. 2d 527, 535 (1958). 15 II. Application 16 The Court is satisfied Plaintiff attempted to serve Defendant’s principal office address and 17 Defendant’s designated agent with reasonable diligence. Because both addresses listed in 18 McClellan appear defunct, Defendant’s failure to serve those addresses via mail was reasonable. 19 However, Plaintiff has identified a valid address associated with Defendant’s CEO, Laag, who can 20 be served under § 416.10. Plaintiff has not shown reasonable diligence has not made any attempt 21 to serve the CEO’s address by mail under § 415.30(a). See Judicial Council’s Comment, Cal Civ. 22 Code § 415.30 (noting § 415.30 provides a means to serve individuals listed in § 416.10); see also 23 Dist. Council 16 N. Cal. Health & Welfare Tr. Fund v. Prods. Serv. & Labor, No. 20-cv-2063- 24 JCS, Docket Number 12 at 2 (N.D. Cal. June 23, 2020) (denying motion to serve through 25 Secretary of State for failure to conduct service on agent by mail). Thus, the Court cannot deem 26 the requirements under California Corporations Code § 1702 met.1 27 1 CONCLUSION 2 The motion is DENIED without prejudice because Plaintiff has failed to show reasonable 3 diligence under California Code of Civil procedure 415.30(a). The hearing scheduled for March 4 || 9,2023 is VACATED. The deadline for Plaintiff to serve Defendant is extended to May 12, 2023. 5 IT IS SO ORDERED. 6 This Order disposes of Docket Number 12. 7 Dated: March 6, 2023 8 9 re JEYCQUELINE SCOTT CORKEY 10 United States District Judge 11 12 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 were inadequate because Plaintiff's process server viewed his address on three consecutive days 2g || tather than at varied times. See id. at 2 (finding service attempts diligent where attempts were made at different times of day over a span of two months).