Indian Hills Holdings, LLC v. Frye

• Court: District Court, S.D. California
• Decided: November 18, 2020
• Docket: 3:20-cv-00461
• Status: Unknown

Opinion

1 | NCV 18 □□ | 2 sf Se 3 Benner AY 4 6

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || INDIAN HILLS HOLDINGS, LLC, a ) Case No.: 3:20-cv-00461-BEN-AHG California limited liability company, ) Plaintite ) ORDER DENYING MOTION FOR 13 , ) PUBLICATION 14 | ECF No. 5 15 || CHRISTOPHER FRYE, an individual; [ECF Nos} CONSTRUCTION & DESIGN □ ) 16 || PROFESSIONALS, CORP., an Arizona ) 7 domestic for profit (business) corporation; ) and DOES 1-10, 18 || □ Defendants. ) 19 ) 20 INTRODUCTION 21 Plaintiff INDIAN HILLS HOLDINGS, LLC, a California limited liability 22 ||company (“Plaintiff”) alleges that Defendant CHRISTOPHER FRYE, an individual 23 ||(“Mr. Frye”), and CONSTRUCTION & DESIGN PROFESSIONALS CORP., an 24 || Arizona corporation (“CDP”) (collectively, “Defendants”) took Plaintiff's money in 25 || exchange for promising to provide Plaintiff with goods. See generally ECF No. 1. It is 26 || further alleged that Plaintiff never received the goods, and Defendants have not refunded 27 ||the money Plaintiff gave Defendants. Jd. Before the Court is Plaintiffs Motion for Service by Publication of the Summons . -1- .

(the “Motion”). ECF No.5. | □ 2 The motion was submitted on the papers without oral argument pursuant to Civil 3 Local Rule 7.1(d)(1} and Rule 78(b) of the Federal Rules of Civil Procedure. ECF No. 6. 4 || After considering the papers submitted, supporting documentation, and applicable law, > Court DENIES Plaintiff's Motion without prejudice and GRANTS Plaintiff a final 6 ninety-day (90) day extension of time to effectuate service and/or re-file a Motion with a 7 || further showing of reasonable diligence. The Court denies Plaintiff’s Motion because as 8 Hl to Mr. Frye, the declaration in support of the Motion fails to (1) show reasonable diligence ? attempting to serve Defendants or (2) include the statutorily required non-attorney 10 || declaration stating that a cause of action exists against the party to be served. As to CDP, 1! Court denies the Motion because a corporation cannot be served by publication. 12 Instead, Plaintiff must seek to serve CDP by serving the Secretary of State. □ 13 BACKGROUND 14 A. Statement of Facts . 15 Plaintiff alleges that in November 2019, it entered into contracts to purchase 16 || Cultivation “Adult” Extreme Cubes for $182,000.00. ECF No. 1 at 3:12-4:9. Plaintiff alleges it “provided the $182,000.00 to Defendants as full payment in accordance with 18 |) the terms of the Agreement for the purchase of the Items.” ECF No. 1:11-13. However, Plaintiff alleges that it never received the goods, and “Defendants have failed to refund 20 || or reimburse Plaintiff for the full amount of the Agreement tendered by Plaintiff.” ECF 21 1 at 6:24-25. 22 Plaintiff also alleges that: (1) Defendant Christopher Frye “is an individual and 23 || citizen of the state of Arizona,” ECF No. 1:20-21, and (2) Defendant Construction & 24 |)Design Professionals Corp. (“CDP”) is a domestic for-profit corporation, “with its 25 principal place of business at 3271 North Axtell Road, Florence, Arizona 85132,” and 26 || Mr. Frye “is the agent for service of process registered with the Arizona Secretary of State 27 with an address of 3271 North Axtell Road, Florence, Arizona 85132.” 28 22.

| B. Procedural History 2 On March 11, 2020, Plaintiff filed a complaint against Defendants alleging claims 3 for relief for: (1) breach of written contract; (2) fraud; and (3) unjust enrichment. ECF No. 4 1. 5 On March 11, 2020, the Clerk of the Court issued the summons in this case. ECF 6 No. 2. . 7 On May 3, 2020, Plaintiff filed a Proof of Service, pursuant to which Rose Drogitis 8 | declared that on March 30, 2020 at 3:50 p.m., by delivering a “copy thereof’ to 9 Christopher Frye at 3271 North Axtell Road, Florence, Arizona 85132, he served (1) CDP 10 and (2) Christopher Frye as an individual via certified mail with return receipt requested. ECF No. 3, 4. In other words, Plaintiff attempted to serve both Defendants by certified 12 |) mail, and by mailing only one, rather than two, copies of the complaint. □ On May 30, 2020, Plaintiff filed this Motion for Service by Publication, 14 accompanied by the Declaration of Dan Heilbrun in support thereof. ECF No. 5, 15 =LEGALSTANDARD 16 A plaintiff may effectuate service of process of the summons and complaint in any 17 judicial district of the United States pursuant to either: (1) the law of the state in which 18 |! the district court is located or (2) the methods approved by Rule 4 of the Federal Rules of 19 |! Civil Procedure (“Rule 4”), FED. R. Civ. P. 4(e). Under Rule 4, service may be made by 20 || delivering a copy of the summons and complaint to (a) the individual personally, (b) the. 21 || person’s dwelling “or usual place of abode[, leaving them] with someone of suitable age 22 || and discretion who resides there,” or (c) “an agent authorized by appointment or by law 23 receive service of process.” Jd. Rule 4(h) further provides that a corporation may be 24 || served “in the manner prescribed by Rule 4(e)(1) for serving individuals. FED. R. □□□□ P. 25 ||4(f). There is no provision in the Federal Rules of Civil Procedure authorizing service of 26 summons by publication. As such, an individual seeking to serve a defendant by 27 || publication of the summons must look to the provisions in Rule 4(e)(1) allowing for 28 || service of process to be effectuated under state law in order to do so. See, e.g., FED. R. -3.

lew. Pp. 4(e). 2 Where service is made under Rule 4(e), “in the manner specified in the state statute, 3 || we are governed by the decisions of the Supreme Court of California as to the scope and 4 meaning of the California statute.” Mech. Contractors Ass’n of Am., Inc. v. Mech. > Contractors Ass'n of N. Cal., Inc., 342 F.2d 393, 398-400 (9th Cir. 1965) (upholding © | service under California law on a New York corporation that had not been qualified to 7 business in California but had, nonetheless, been doing business there, and service of 8 process had been made by serving California’s Secretary of State, who was then required 9 by statute to mail the process, by registered mail, to the company in New York). 10 California law also allows courts to look to both California laws governing service of process as well as the law of the place where the defendant is located. See, e.g., CAL. CIV. 12 || Proc. CODE § 413.10(b) (providing that in the case of a defendant outside the State of 13 California, “a summons shall be served . . . as provided in this chapter or as prescribed by 14 Il the law of the place where the person is served”). | oe I5 Article 3 of California’s Code of Civil Procedure (“CCP”), governing “Manner of 16 || Service of Summons, provides for various means of service, including. but not limited to: 17 (1) personal delivery, CAL. CIv. PROC. CODE § 415.10; (2) leaving the summons and 18 complaint with a person found at the office, dwelling, or house, id. at § 415.20; (3) □□□□□□□ 19 by Notice and Acknowledgement of Receipt, id, at § 415.30; (4) service by mail on 20 || persons outside the state, provided the return receipt is returned, id. at § 415.40; and (5) 21 service by publication, id. at § 415.50. See also Ariz. R. Cw. P. 4.1(d) (providing that 22 || under the Arizona Rules of Civil Procedure, an individual may be served by delivering a 23 |\copy of the summons and complaint to the: (1) individual personally; (2) individual’s 24 || dwelling or abode with someone of suitable age who resides there; or (3) agent authorized 25 appointment or law to receive service of process for the individual). Section 415.50 26 || of the CCP (“Section 415.50"), governing service by publication, provides that “[a] 27 |lsummons may be served by publication if], inter alia,] upon affidavit it appears to the 28 satisfaction of the court in which the action is pending that the party to be served cannot -A..

|| with reasonable diligence be served in another manner specified in this article.” In other 2 words, parties must use service by Section 415.50 as a last resort if the other methods of 3 || service (e.g., personal delivery, substituted service, service by mail) have failed. 4 Under Article 4, addressing “Persons Upon Whom Summons May be Served,” > |iSection 416.10 of the California Corporations Code (“Section 416.10’), lists 6 “Corporations Generally” as a “person upon whom summons may be served.” That 7 section provides that “[a] summons may be served on a corporation by delivering a copy 8 || of the summons and the complaint” to either: (1) a designated agent; (2) an officer, 9 manger, or other “person authorized by the corporation to receive service of process”; (3) 10 || to a cashier or assistant cashier if the corporation is a bank; or (4) to the Secretary of State 11 || if authorized by, inter alia, Corporations Code section 2111 (“Section 2111”). CAL. CIv. 12 |! Proc. CODE § 416.10. Section 2111, which governs service on foreign corporations!, in 13 turn, provides that service on the California Secretary of State may be made where none 14 || of the officers or agents of the corporation may be found after a reasonably diligent search 15 | or “if no agent has been designated.” CAL. CORP. CODE § 2111. Failure to obtain a 16 || certificate of qualification? to do business in California or update the listing for an agent 17 |lfor service of process qualifies as a scenario warranting service on the California 18 I Secretary of State. As such, because Defendant CDP failed to designate an agent for 19 —_—— eM — 1 The Corporations Code defines a “foreign corporation” as “any corporation other than a domestic corporation.” CAL. CORP. CODE § 171. As such, Defendant CDP, as an 21 || Arizona corporation, qualifies as a foreign corporation. 2 Any foreign corporation wishing to transact business within the State of California must first obtain a certificate of qualification from the Secretary of State. CAL. CIv. PROC. 23 ||CODE. § 2105{a). In order to obtain that certificate, the foreign corporation must file a form, signed by a corporate officer stating, inter alia, (1) “[t]he name of an agent upon whom process directed to the corporation may be served within this state” and (2) “[iJts |[itrevocable consent to service of process directed to it upon the agent designated and to 26 service of process on the Secretary of State if the agent designated or the agent’s successor is no longer authorized to act or cannot be found at the address given.” CAL. □□□□ PROC. 27 CoDE. § 2105(a).. “The purpose of the certificate of qualification is to facilitate service of process and to protect against state tax evasion.” The Capital Gold Grp., Inc. v. Nortier, 176 Cal. App. 4th 1119, 1132 (2009). . 25.

I service of process in California, service on the California Secretary of State would be 2 appropriate, 3 A. Service by Publication oe 4 Under California law, “[c]onsistent with the notions of fair play and due process, > || substituted service by publication is ‘a last resort’ when ‘reasonable diligence to locate a person in order to give him notice before resorting to the fictional notice afforded by 7 || publication’ has been exercised.” Calvert v. Al Binali, 29 Cal. App. Sth 954, 963 (2018). 8 || “Personal service remains the method of choice under the statutes and the constitution,” 9 “[w]hen substituted or constructive seivice is attempted, strict compliance with the

. 10 letter and spirit of the statutes is required.” Calvert, 29 Cal. App. 5th at 963 (citing Olvera 11 lly, Olvera, 232 Cal. App. 3d 32, 41 (1991). 12 Section 415.50 governs service of an individual by publication. Under Section 13 415,50, a plaintiff may serve a summons by publication only “if upon affidavit it appears. 14 |/to the satisfaction of the court in which the action is pending that the party to be served 15 || cannot with reasonable diligence be served in another manner” and that either (1) “[a] 16 |! cause of action exists against the party upon whom service is to be made or... she is a WW necessary or proper party to the action” or (2) “[t]he party to be served has or claims an 18 || interest in real or personal property in this state that is subject to the jurisdiction of the 19 court.” CAL. Civ. PROC. CODE § 415.50 (a). 20 B. Service on the Secretary of State 21 “Section 416.10 [of California’s Code of Civil Procedure] governs service of process 22 |i upon corporations generally.” Gibble v. Car—Lene Research, Inc., 67 Cal. App. 4th 295, 23 (1998); see also Rose v. Seamless Fin. Corp. Inc., No. 11CV240 AJB KSC, 2013 WL 24 || 1285515, at *6 (S.D. Cal. Mar. 26, 2013) (citing Gibble). California’s Code of Civil 25 || Procedure (the “CCP”) along with its Corporations Code jointly vest the courts with the 26 || authority to issue an order that service may be made upon the Secretary of State where: (1) 27 ||a plaintiff proves he or she is unable to personally serve a corporate defendant because the 28 || designated agent for service or process cannot with reasonable diligence be found at the -6-

I address designated for personally delivering the process and (2) it is shown by affidavit or 2 || declaration to the Court that process cannot be served with reasonable diligence in any 3 Il other way. CAL, CODE CIV. PROC. § 416.10; CAL. CORP. CODE §§ 1702 and 2111. 4 |lTv. DISCUSSION 5 The Court concludes that, as outlined below, it should deny Plaintiff's Motion 6 |! because: (1) Plaintiff never requested a hearing date for its Motion; (2) Plaintiff failed T |lto show reasonable diligence in attempting to serve individual defendant Mr. Frye; and 8 (3) Plaintiff cannot serve CDP, a foreign corporation, by publication. 9 A. Plaintiff Did Not Request a Hearing Date. 10 Although an Application for Publication of the Summons may be made without a 11 |) hearing in the superior court, Local Rule 7.1 requires that a hearing date must be requested 12 || from the clerk of the judge to whom a case is designed “for any matters on which a ruling 13 required.” §.D. Cal. Civ. R. 7.1(b); see also id. at subdivision (f) (requiring a motion to 14 |/include the “hearing date and time”). Here, Plaintiff never requested a hearing date, and 15 such, the Motion should have been rejected. S.D. Cal. Civ. R. 7.1(e)(7) (providing that 16 ||“[t]he clerk’s office is directed not to file untimely motions and responses... without the 17 || consent of the judicial officer assigned to the case”), 18 B. ‘Plaintiff Has Not Met the Requirements for Serving an Individual by Publication, 19 50 The Declaration of Daniel P. Heilbrun,? Plaintiffs counsel of record, states that 3217 N. Axtell, Florence, AZ 85132 is the address for Christopher Frye as well as CDP’s agent 22 □ 23 ||__—#—_—____—_—__. . 3 The Court notes that Mr. Heilbrun’s declaration is signed “under the laws of the State of California.” Compare 28 U.S.C. § 1746(2) (setting forth the requirements for a 25 ||sworn declaration) with Nownejad v. Farmers Ins., No. CV 13-6507 PSG (JCX), 2014 WL 12591258, at *3 (C.D. Cal. Sept. 18, 2014) (finding that an attestation in a declaration stating, “I declare under penalty of perjury under the laws of the State of California that 27 foregoing is true and accurate” is substantially similar to the attestation required under 28 U.S.C. § 1746(2)); Brantley v. Boyd, No. 07-6139 SC, 2011 WL 1225630, at *3 (N.D. Cal. Apr. 1, 2011) (same). -7-

L |) for service process based on current information obtained from the California’ [sic] 2 Secretary of State. ECF No. 5 at 5-9, Mr. Heilbrun also declares that “[s]ervice was 3 attempted on March 17, 18, 19, 20, 2020 by Advanced Attorney Services, yet no one is at 4 address given.” Jd. at 5:10-11. The declaration shows that the address is a gated 5 residence, there was no answer at the door on any of the attempts, there were no vehicles 6 parked at the residence, and on one occasion, there was a package. addressed to Cora 7 Musgrave. ECF No. 5-1 at 6. On March 30, 2020, following the four attempts at personal 8 service, Mr. Heilbrun attempted to serve by acknowledgement as well as via U.S. Certified 9 Mail, return receipt requested, on both defendants to the address of 3217 N. Axtell,° 10 Florence, AZ 85132. ECF No. 5 at 5:12-13. The Court notes that the Proof of Service for 11 || this Motion lists an attorney for both defendants, Karen A. O’Neil, as having been served. 12 No. 5-2 at 2. For the reasons outlined below, the Court finds Plaintiff has failed to show reasonably diligent efforts to serve the individual defendant. 14 1. Plaintiff Has Not Shown Reasonably Diligent Efforts. 15 Section 415.50 requires the plaintiff to show to the court that “the party to be served 16 || cannot with reasonable diligence be served in another manner.” CAL. CIv. PROC. CODE § 17 |) 415.50 (a); see also Cal. Judicial Council Com., West Ann. Code Civ. Proc. (1973 ed.) § 18 | 415.50 (providing that “{t]he first step in service by publication is the filing ofa prescribed || □ 5 The Court notes that while the declaration states that this information is from the || California Secretary of State, the actual exhibit itselfis from the Arizona Secretary of State. 21 || The Court takes judicial notice, sua sponte, of the fact that CDP has no registration with 59 the California Secretary of State. See, e.g., Fed. R. Evid. 201(c)(1) (allowing courts to take judicial notice sua sponte), L’Garde, Inc. v. Raytheon Space and Airborne Sys., 805 23 ||F.Supp.2d 932, 937-38 (C.D. Cal. 2011) (taking judicial notice of records from the 74 California Secretary of State website). The Court notes that Mr. Heilbrun’s declaration references attempts at 3217 N. 25 Axtell, Florence, AZ 85132 while the Declaration of Due Diligence, Arizona Secretary of State exhibit, and complaint all reference defendants as being located at 3271 N. Axtell, Florence, AZ 85132. The Proof of Service submitted with Mr. Heilbrun’s declaration alsa 27 || lists his address as 3217 N. Axtell, Florence, AZ 85132. Any further motions to this Court 28 should. address whether this was a typographical error, and at which address service was. in effect, attempted. -8.

| || affidavit showing in detail . . . probative facts indicating a sincere desire and a thorough 2 || search to locate the defendant, including the dates thereof and any attempts to serve the 3 |) defendant by another method of service”). This requirement stems from “notions of fair 4 play and justice embodied in the concept of due process of law,” which “require an > || exercise of reasonable diligence to locate a person in order to give him notice before 6 resorting to the fictional notice afforded by publication.” Donel, Inc. v. Badalian, 87 Cal. 7 App. 3d 327, 332 (1978). The Judicial Council comments to Section 415.50 are 8 || instructive in elaborating the showing required for a trial court to find that a party has ? |\ exercised reasonable diligence in trying to locate the party to be served: 10 UW The term ‘reasonable diligence’ takes its meaning from the former law: | it denotes a thorough, systematic investigation and inquiry conducted 12 in good faith by the party or his agent or attorney. A number of honest B attempts to learn defendant’s whereabouts or his. address by inquiry of □ relatives, friends, and acquaintances, or of his employer, and by 14 || investigation of appropriate city and telephone directories, the voters’ 15 register, and the real and personal property index in the assessor’s office, near the defendant’s last known location, are generally 16 | sufficient. These are likely sources of information, and consequently 7 must be searched before resorting to service by publication. 18 || Kott v. Super. Crt, 45 Cal. App. 4th 1126, 1137-38 (1996) (citing Cal. Judicial Council 19 |}Com., West Ann. Code Civ. Proc. (1973 ed.) § 415.50, pp. 561-563.) 20 || Reasonable diligence has been held to require “[t]wo or three attempts to personally 21 || serve a defendant at a proper place.” Rodriguez v. Cho, 236 Cal. App. 4th 742, 750 (2015). 92 ||In addition to attempting personal service, courts also require attempts to serve the 73 || defendant by at least one other method. See, e.g., Donel, Inc. v. Badalian, 87 Cal. App. 3d 94 |1327, 334 (1978) (holding that where an attorney only employed one method to locate 2 95 ||defendant, the attorney had not exercised reasonable diligence as a matter of law prior to 26 applying to the court for permission to serve by publication); accord Stafford v. Mach, 64 97 ||Cal. App. 4th 1174, 1183 (1998), as modified on denial of reh’g (July 8, 1998) (upholding 4g ||service of process where “a process server .. . made six attempts at personal service at . 9.

1 || Mach's residence,” and “[o]n the sixth attempt... the server ‘announced drop service’ and 2 the papers with him” while mailing the summons and complaint to the same address 3 two days later). Other attempts may include “[a] number of honest attempts to learn 4 || defendant’s whereabouts or his address” by means of (1) “inquiry of relatives,” and (2) “investigation of appropriate city and telephone directories, [voter registries, and assessor’s 6 office property indices situated near the defendant’s last known location].” Watts v. 7 || Crawford, 10 Cal. 4th 743, 749, n. 5 (1995) (noting that “[t]hese are likely sources of 8 information, and consequently must be searched before resorting to service by 9 publication”); see also Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795 (1983) 10 (holding that notice by publication is not reasonably calculated to provide actual notice to 11 || defendants whose whereabouts are known, and.thus, “could be notified by more effective 12 || means such as personal service or mailed notice”); Mullane v. Central Hanover Bank & 13 Trust Co., 339 U.S. 306, 315 (1950) (reiterating that “when notice is a berson’s due, process 14 || which is a mere gesture is not due process”); Flores v. Kmart Corp., 202 Cal.App.4th 1316, 15 |11330 (2012) (finding that “[i]f a creditor’s identity is known or reasonably ascertainable, 16 service by publication does not comply with the Fourteenth Amendment due process clause 17 || notice requirement—actual notice is constitutionally required”). 18 For example, in Giorgio v. Synergy Mgmt. Grp., LLC, 231 Cal. App. 4th 241, 248- 19 49 (2014), the California Court of Appeal affirmed the trial court’s conclusion that the 20 || complaint could not be served personally or by mail where the plaintiff (1) conducted a 21 search for any addresses associated with the defendant; (2) performed a search online and 22 || was able to locate another address associated with the defendant; (3) attempted to serve the 23 || defendant by mail at the newly located address “but received a “Return to Sendet 24 || Unclaimed’ envelope from the United States Postal Service”; (4) verified with the United 25 || States Postal Service that the defendant still received mail at the newly located address: 26 || and (5) unsuccessfully attempted personal service seven times, using two different process 27 || services, at the newly located address. 28 Here, the Court notes that Mr. Heilbrun’s declaration discusses: (1) four attempts at -10-

| personal service at one location and (2) attempts at service by certified mail with no return 2 receipt being returned. However, Mr. Heilbrun’s declaration does not advise whether: (1) 3 received anything in the mail advising that the mailings were “Returned to Sender 4 Unclaimed,” Giorgio, 231 Cal. App. 4th at 248-49; (2) performed online searches to locate Defendants’ address, such as seeking out Defendants’ website, see id. (upholding service 6 or process where the plaintiff, among other efforts, conducted a search online for addresses 7 associated with the defendant); or (3) investigated appropriate directories, Watts, 10 Cal. 8 || 4th at 749,n. 6. Even if the efforts were, in fact, reasonably diligent, Mr. Beilbrun’s does ? \Inot declaration provide sufficient facts for the. Court to arrive at that conclusion. 10 Regardless, this is of little consequence to this Motion because, as discussed below, Mr. |! Beilbrun’s declaration failed to meet the other requirements of Section 415.50. 12 2. Plaintiff Has Failed to Provide an Affidavit Showing the Court That a 13 Cause of Action Exists. 14 Under California law, service by publication is permitted only where “upon affidavit 15 |\it appears to the satisfaction of the court in which the action is pending that . . . [a] cause 16 action exists against the party upon whom service is to be made or he or she is a 17 ||/necessary or property party to the action.” CAL. CODE Clv. Proc. § 415.50(a){1). This is 18 || because “[flor the purpose of service by publication, the existence of a cause of action isa 19 jurisdictional fact.” Harris v. Cavasso, 68 Cal. App. 3d 723, 726 (1977) (providing that 20 ||“[t]here must be an affidavit containing a statement of some fact which would be legal 21 |levidence, having some appreciable tendency to make the jurisdictional fact appear, for the Judge to act upon before he has any jurisdiction to make the order”). “In other words, Section 415.50(a)(1) requires that the plaintiff provide independent evidentiary 44 support, in the form of a sworn statement of facts, for the existence of a cause of action 25 ||against each defendant whom service by publication is requested.” Rose, 2013 WL 96 ||1285515 at*3. 7 Here, Mr. Heilbrun’s declaration contains no facts whatsoever as to what facts, if 99 |jany, could support a cause of action against Defendants as is required by Section 415.50.

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1 See, e.g., Rose v. Seamless Fin. Corp. Inc., No. 11CV240 AJB KSC, 2013 WL 1285515, 2 Wat *3 (S.D. Cal. Mar. 26, 2013) (rejection the plaintiff's Motion for Publication of the 3 || summons as deficient where they simply reiterated service attempts and were “devoid of 4 any facts from which the trial court could draw the conclusion that a cause of action existed 5 against [any of the] defendants”). A review of Plaintiff’s complaint reveals that it alleges 6 || three claims for relief for: (1) breach of contract; (2) fraud; and (3) unjust enrichment. See 7 generally ECF No. 1. Without addressing whether those claims plead a claim for relief 8 | under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court examines the 9 allegations pled, swa sponte, to evaluate whether a cause of action may, in fact, exist due the fact that the declaration in support of the Motion failed to address that issue. _ As to the first claim for relief, Plaintiffs complaint attached the contract at issue to 12 || the complaint. FED. R, CIV. P, 10(C) (explaining that “[a] copy of a written instrument 13 || that is an exhibit to a pleading is a part of the pleading for all purposes”); see also Petrie v. 14 Elee. Game Card, Inc., 761 F.3d 959, 964 (9th Cir. 2014) (affirming the lower court’s 15 consideration of exhibits attached to a complaint on a motion to dismiss). Thus, “[a] copy 16 || of a written instrument that is an exhibit to a pleading is a part of the pleading for all 17 | purposes.” . Coto Settlement y. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). The 18 contract attached to the complaint is not a fully executed contract. Because this is a 19 || diversity jurisdiction case,® we apply the law of the forum state. Estate of Darulis v. 20 || Garate, 401 F.3d 1060, 1062 (9th Cir. 2005) (providing that “[i]t is well-settled that in 21 diversity cases federal courts must apply the choice-of-law rules of the forum state”). Thus, 22 || under California choice-of-law rules, the Court applies California state law. See Hurtado 23 Super. Crt., 11 Cal.3d 574, 580, 581 (1974) (citations omitted). Further, the Contract 24. \litself, which is signed by Mr. Frye,’ on behalf of CDP, provides that the agreement “shall 6 Plaintiff alleged jurisdiction pursuant to 28 US.C. section 1332, alleging that Defendants reside in Arizona, and as such, “there is diversity of citizenship in an amount 27 || exceeding $75,000.00.” ECF No. 1:5-8. 28 7 A court may take judicial notice of the fact that a contract was signed. □□ □□□ Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir, 2001) (holding that although the district ~12-

| be construed under and in accordance with the laws of the State of California.” ECF No. 2 |)1-2 at 5. 3 Under California law, the California Commercial Code applies to any contract for 4 Wlthe sale of goods. See, e.g., CAL. COM, CODE § 2102 (“Unless the context otherwise tequires, “this division applies to transactions in goods”). Plaintiff alleges that in 6 November 2019, they entered into contracts to purchase Cultivation “Adult” Extreme 7 Cubes for $182,000.00, ECF No. 1 at 3:12-4:9, which qualify as goods. See CAL. COM. 8 || Cope § 2105(1) (defining “goods” as: “all things Gncluding specially manufactured 9 goods) which are movable at the time of identification to the contract for sale other than 10 money in which the price is to be paid, investment securities (Division 8) and things action”), Thus, the California Commercial Code applies to this case. □ 12 Section 2201 of the California Commercial Code requires contracts for the sale of 13 goods “for the price of $500 or more” to (1) be in writing “sufficient to indicate that a 14 || contract for sale has been made between the parties” and (2) “signed by the party against 15 |) whom enforcement is sought.” CAL. CoM. CODE § 2201(1); see also CAL. COM. CODE § 16 1201(b)(37) (noting that “‘signed’ includes using any symbol executed or adopted with 17 present intention to adopt or accept a writing”). Here, according to Plaintiff's complaint, 18 contract was for $182,000.00. As such, the contract exceeded $500 and needed to be 19 lin writing, signed by the party to be bound, or Defendants.. However, the contract appears 20 ||to be signed by the party Plaintiff seeks to bind (e.g., Mr. Frye, on behalf of CDP).* 21 || —————-—_. court could take judicial notice of “the fact that [a document] was signed,” it erred in taking “judicial notice of disputed facts stated in public records”), overruled on other 23 || grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir, 2002); see also Wilbur y 54 ||”: Locke, 423 F.3d 1101, 1112 (9th Cir. 2005), abrogated on other grounds by Levin vy. || Commerce Energy, Inc., 360 U.S. 413 (2010) (taking judicial notice of a consummated 25 ||agreement in the form of an executed compact). Here, without taking judicial notice of the validity of the contract, the Court takes judicial notice of the fact that the contract attached to the Complaint is not a fully executed a contract; however, it is signed by the party to be 27 ||bound, or Mr. Frye, although it is not dated. 2g 8 Even if Mr. Frye had not signed the Contract, the Court finds that the contract would likely be enforceable although it makes no ruling in this regard. There are several -13-

| \\However, the contract states that Plaintiff was required to pay $50,0000.00 upon 2 executing the agreement and pay the remaining balance of $132,000.00 when Plaintiff 3 || received the goods. As a result, the condition precedent for Plaintiff making payment of 4 lithe balance of $132,000.00 (e.g., receipt of the goods) never occurred, and Plaintiff's 5 payment of that balance without first having received the goods seem curious at best. 6 Recovery of the balance of $132,000.00 may be better suited for recovery under the fraud 7 \Iclaim. Regardless, it would appear that a claim for relief for breach of contract exists 8 only with respect to the Court’s evaluation of that issue under Section 415.50. 9 Plaintiff's second claim for relief pleads fraud. “{C]laims sounding in fraud are 10 . . □ 11 ||exceptions to the Statute of Frauds requirement set forth in section 2201, where “[a] D contract which does not satisfy the requirements of subdivision (1) but which is valid in other respects is enforceable,” because (1) “the goods are to be specially manufactured for 13 buyer and are not suitable for sale to others in the ordinary course of the seller’s 14 business and the seller . . . has made either a substantial beginning of their manufacture or commitments for their procurement”; (2) “the party against whom enforcement is sought 15 \jadmits .. . in court that a contract for sale was made”; and/or (3) payment for the goods 16 has already been made and accepted. CAL. COM. CODE § 2201(3). Here, by interpreting the evidence in Defendants’ favor, the first exception would 17 ||not apply because the Contract, which Plaintiff attached to the Complaint, states that “[t]he 18 finished goods Inventory is of a type, quantity, and quality usable and salable in the ordinary course of business.” ECF No. 1-2 at 2, §5(e). Further, because Defendants have 19 ||mot appeared, no responsive pleadings have been filed, and as such, the Court is unaware of any court documents in which Defendant admits that a contract for sale has been made. ‘|| Thus, the second exception does not apply. However, it would appear that, assuming the 21 || truth of Plaintiff's allegations, the third exception would apply as Plaintiff alleges that “[iln reliance and in conformity with the Agreement at issue, Plaintiff provided $182,000.00 to Defendants as full payment in accordance with the terms of the Agreement for the purchase 23 items.” ECF No. 1 at 5:11-13. However, the Court also notes that the Contract attached D4 to the Complaint provides that “a balance of $132,000.00” shall be paid on the Closing Date, when the inventory, equipment, and fixtures are transferred to a location in Santa 25 ||Monica. ECF No. 1-2 at 2, §4. Thus, without ruling on the validity of the contract or the 26 agreement between the parties, the Court notes that the agreement attached to the complaint would appear to indicate that full payment was not due until Plaintiff received the goods. 27 || See also CAL. COM. CODE § 2310(a) (providing that unless the contract provides otherwise. “[pjayment is due at the time and place at which the buyer is to receive the goods ever though the place of shipment is the place of delivery”). -14.

1 subject to the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil 2 Procedure, which requires that a plaintiff alleging fraud ‘must state with particularity the 3 || circumstances constituting fraud.’” Goldstein v. Gen. Motors LLC, 445 F. Supp. 3d 1000, 4 1/1010 (S.D. Cal. 2020); see also Fed. R. Civ. P. 9(b) (requiring that “[iJn alleging fraud or

5 mistake, a party must state with particularity the circumstances constitute fraud or 6 mistake”), In order to meet Rule 9’s heightened pleading standard, “the circumstances 7 constituting the alleged fraud [must] be specific enough to give defendants notice of the 8 particular misconduct so that they can defend against the charge and not just deny that they 9 done anything wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 10 2009) (internal quotations omitted). Thus, pleading claims for relief for fraud require “an 11 |! account of the time, place, and specific content of the false representations as well as the 12 |l identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 13 || 764 (9th Cir. 2007) (per curiam) (internal quotation marks omitted) ; see also Vess v. Ciba- 14 |! Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (“Averments of fraud must be 15 accompanied by the who, what, when, where, and how of the misconduct charged.”) 16 (internal quotation marks omitted). The Court concludes that Section 415.50 requires a 17 declaration in support of Plaintiff's Motion for Publication to include evidence as to the 18 existence of a fraud claim for relief against Defendants and how or why they are a necessary 19 || party to the action. Plaintiff included no such evidence. Currently, while the complaint may show a claim for fraud exists, Plaintiff ‘must submit a declaration regarding the 21 || aforementioned missing allegations should Plaintiff desire to seek to serve Mr. Frye by 22 publication in the future. 23 || ‘As to the third claim for relief, the Court notes that while “California does not 24 recognize unjust enrichment as a claim for relief,” see Astiana v. Hain Celestial □□□□□□□□□□□ 25 F.3d 753, 762 (9th Cir. 2015) (citing Durell v. Sharp Healthcare, 183 Cal. App. 4th 26 1350, 1370 (2010)), federal courts have declined dismissal of such a claim for relief on the 27 |\basis that it may constitute a plausible claim for quasi-contractual relief, Jordan v. 28 || Wonderful Citrus Packing LLC, No. 118CV00401AWISAB, 2018 WL 4350080, at *3 -1[45-

' lp. Cal: Sept. 10, 2018). As such, it would appear that while a claim for unjust 2 enrichment may exist under the complaint, Plaintiff should include facts pertaining to this 3 |) claim as well in any declaration Plaintiff may later submit to the Court. 4 Finally, an affidavit in support of a request for service by publication “must state 5 facts based on knowledge and not on mere hearsay.” 4 Witkin, Cal. Procedure (Sth ed. 6 2019) Actions § 1037. “A number of decisions carrying out this idea say that the test of 7 Il the sufficiency of the affidavit is whether it could be the foundation of an indictment for 8 perjury if false.” Jd Affidavits by a plaintiff's attorney have been held insufficient to 9 |) meet the jurisdictional requirement for a court to issue an order for publication. See, e.g., 10 || Columbia Screw Co. v. Warner Lock Co., 138 Cal. 445, 447-48 (1903) (holding that a 1] declaration by a plaintiffs attorney concerning an indebtedness “stated upon information 12 || received by me received from plaintiff by me” was not a written declaration under oath 13 that a cause of action existed against the defendant; thus, the court lacked jurisdiction to 14 || make the order for publication, and the judgment should be reversed); Harris v. Cavasso, 15 Cal. App. 3d 723, 726 (1977) (providing that “the affidavit filed by plaintiffs’ attorney 16 || is devoid of any facts from which the trial court could draw the conclusion that a cause of 17 || action existed against defendants”). Even a verified complaint has been held insufficient 18 |! to meet this jurisdictional requirement. See Harris v. Cavasso, 68 Cal. App. 3d 723, 726 19 | (1977) (noting that “[c]ontrary to plaintiffs’ assertion, the verification of the complaint by 20 |i plaintiffs’ counsel on his information and belief is no substitute for the sworn statement 21 facts which section 415.50 requires of the affiant”). Further, affidavits with mere 22 |lconclusions do not satisfy the jurisdictional requirement either. See, e.g., Islamic 23 || Republic of Iran v. Pahlavi, 160 Cal. App. 3d 620, 627 (1984) (holding that service was 24 improper where, inter alia, the affidavit in support of the application for publication for 25 || publication consisted of “a medley of conclusions and political declamation and certainly 26 || fails to formulate a comprehensible cause of action”). “Unless the affidavit contains some 27 ||such evidence tending to establish every material jurisdictional fact, the Judge has no 28 || legal authority to be satisfied, and, if he makes the order, he acts without jurisdiction, and_ -16-

1 all proceedings based upon it are void.” Harris v. Cavasso, 68 Cal. App. 3d 723, 726-27 2 (1977) (citing 2 Witkin, Cal. Procedure (2d ed. 1970) Actions, s 639, pp. 1431—1432.) 3 Here, a declaration by Plaintiff's attorney, rather than Plaintiffs agent or 4 representative, which contains no averments whatsoever as to what facts, if any, could 5 support a cause of action against Defendants fails to meet the requirements of Section 6 415.50. See, e.g., Rose, 2013 WL 1285515 at *3; see also Harris, 68 Cal. App. at 726. 7 C. A Corporation Cannot be Served by Publication. . 8 “It is elementary that substituted service upon a foreign corporation may be made ? only in the manner and form authorized by statute.” Tri-State Mfg. Co. v. Super. Crt. for 10 Los Angeles Cty., 224 Cal. App. 2d 442, 444 (1964). “An indispensable requisite is an affidavit showing that the corporation sought to be served is subject to California jurisdiction and that personal service of process cannot be had.” Tri-State, 224 Cal. App. 13 2d at 444, Unlike with an affidavit in support of service by publication, an affidavit in support of service on the California Secretary of State may be submitted by the plaintiff's Ob attorney, Henry R. Jahn & Son, Inc. v. Super. Crt. In & For San Mateo Cty,, 49 Cal. 2d 16 855, 858 (1958) (noting that “t]he statute does not provide that the affidavit [for service M7 on the Secretary of State] cannot be made by the plaintiffs attorney”) (interpreting section 18 6501 of the Corporations Code). 19 The proper method for serving defendants generally is found in Article 3, “Manner 20 of Service of Summons.” Section 415.40, entitled “Service on Person Outside State,” 21 addresses serving parties outside California and provides that “{a] summons may be served 22 on a person outside this state in any manner provided by this article or by sending a copy 23 of the summons and of the complaint to the person to be served by first-class mail, postage 24 prepaid, requiring a return receipt.” CAL. Civ. PROC. CODE § 415.40. However, section 29 417.20, entitled “Service outside state; manner,” falling under Article 5, covering “Proof 26 of Service,” requires that “[p]roof that a summons was served on a person outside this state 77 || shall be made . .. . if service is made by mail pursuant to Section 415.40 [... by] includfing 28

. -17-

Ly .] evidence satisfactory to the court establishing actual delivery to the person to be served, 2 by a signed return receipt or other evidence.” CAL. Civ. PROC. CODE § 417.20; see also 3 Stamps v. Super. Crt, 14 Cal. App. 3d 108, 110 (1971) (holding that “[t]he trial court 4 deemed erroneously that the service described was adequate to comply with the law” where > 1 service of process “was sent by airmail, return receipt requested, but the return receipt was 6 || returned bearing the notice “unclaimed,” and as a result, “there was no “signed receipt or T || other evidence’ of delivery”). The Judicial Council Comments to Section 415.40 provide: 8 |/“The person or persons to be served under this section are.enumerated in Sections 416.10 9 through 416.90.” An examination of Section 416.10 shows that it covers “Corporations 10 Generally” and falls under Article 4, addressing “Persons Upon Whom Summons May be i] Served,” but not Article 3, which addresses the manner of service. 12 Section 416.10, in turn, provides that a plaintiff may serve a summons “on a 13 corporation by delivering a copy of the summons and the complaint by any of the 14 following methods” to: (1) “the person designated as agent for service of process”; (2) 13 president, chief executive officer, or other head of the corporation, a vice president, 16 lla secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief 17 financial officer, a general manager, or a person authorized by the corporation to 18 receive service of process,” (3) “[i]f the corporation is a bank, to a cashier or assistant 19 |) cashier,” and/or (4) “li]f authorized by any provision in 20 || Section 1701, 1702, 2110, or 2111 of the Corporations Code (or Sections 3301 to 3303, 21 |linclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on 22 ||December 31, 1976, with respect to corporations to which they remain applicable),” 23 || which provide for service on the Secretary of State.”? CAL. CODE CIV. Proc. § 416.10. 24 25 || 06 Sections 1701 and 1702 of the Corporations Code govern service of process on ¢ domestic, California corporation, and assuch, do not apply. See CAL. CORP. CODE §§ 1701: 27 111702. Similarly, Sections 3301 to 3303 govern social purpose corporations, and as such 28 do not apply to this case. Sections 6500 to 6504 of the Corporations Code were repealec effective January 1, 1977, and thus, likewise do not apply to this case. However, thes« -18.

I Thus, a plaintiff may serve the summons on a corporation by delivering it to the Secretary 2 of State if authorized by one of the listed provisions of the Corporations Code. In this 3 || case, the only provisions applicable to a CDP, as a foreign corporation,’ are sections 2110 4 land 2111 of the Corporations Code. 5 Section 2110 provides that valid service on a foreign corporation may be made by 6 | hand delivery of a copy of any process to (1) an officer of the corporation, general manager 7 this state, or assistance cashier if the corporation is a bank or (2) a designated individual 8 or corporate agent for service of process, CAL. CORP. CODE § 2110. Section 2111 of the 9 Corporations Code, however, provides for service of process upon the Secretary of State: 10 If the agent designated for the service of process is a natural person - and cannot be found with due diligence at the address stated in the designation . . . and if no one of the officers or agents of ‘the 12 corporation specified in Section 2110 can be found after diligent B search and it is so shown by affidavit to the satisfaction of the court, then the court may make an order that service be made by personal 14 delivery to the Secretary of State... 15 ||CAL. CorP. CODE § 2111; see also ARIZ. R. Clv. P. 4.1(/)(1) (providing that “[i]f a 16 domestic corporation does not have an officer or an agent within Arizona on whom 17 ||process can be served, the corporation may be served by depositing two copies of the 1g ||Summons and the pleading being served with the Arizona Corporation Commission”). 19 Because section 2110 sets forth the various ways to serve a foreign corporation, 99 publication is not among the many statutes included, the Legislature must have 91 ||intended to exclude publication as a means for service on foreign corporations. See, □□□□□ 99 ||N.LRB. v. SW Gen., Inc., 1378. Ct. 929, 940 (2017) (noting that under the “interpretative 73 ||canon, expressio unius est exclusio alterius, ‘expressing one item of [an] associated 24 25 ||statutes were repealed and re-enacted as current sections 2100, ef seg., of California’s 26 Corporations Code. 0 The Corporations Code defines a “foreign corporation” as “any corporation other 27 a domestic corporation.” CAL. CORP. CODE § 171. As such, based on Plaintiff's allegations in the complaint, Defendant CDP, as an Arizona corporation, ECF No. 1 at 2:18-19, qualifies as a foreign corporation. -19.

I group or series excludes another left unmentioned”); see also Leatherman v. Tarrani Cty. 2 |! Narcotics Intelligence & Coordination Unit, 507 US. 163, 168 (1993) (citing to the

3 maxim expressio unius est exclusio alterius and noting that “the Federal Rules do address 4 in Rule 9(b) the question of the need for greater particularity in pleading certain actions, > do not include among the enumerated actions any reference to complaints alleging 6 municipal liability under § 1983,” and as such, only amending the Federal Rules could 7 bring such claims under the purview of Rule 9). Further, “[t]he meaning of a statute may 8 not be determined from a single word or sentence; the words must be construed in context, 9 provisions relating to the same subject matter must be harmonized to the extent 10 possible.” Lungren v. Deukmejian, 45 Cal.3d 727,735 (1988). “An interpretation that 11 || renders related provisions nugatory must be avoided; each sentence must be read not in 12 |/isolation but in the light of the statutory scheme.” People ex rel. Allstate Ins. Co. v.. 13 Weitzman, 107 Cal. App. 4th 534, 544 (2003), as modified on denial of reh’g (Apr. 24, 14 2003) (internal citations omitted). Thus, under the canons of statutory interpretation, 13 || courts must interpret statutory provisions in a way that would not make other provisions 16 || meaningless or superfluous. Bare v. Barr, No. 17-73269, 2020 WL 5541393, at *11 (9th 17 || Cir. Sept. 16, 2020); see also Cal. v. Azar, 911 F.3d 558, 569-70 (9th Cir. 2018), cert. 18 || denied sub nom. Little Sisters of the Poor Jeanne Jugan Residence v. California, 139 S. 19 2716 (2019) (providing that courts must “interpret [the] statut[e] as a whole, giving 20 |\effect to each word and making every effort not to interpret a provision in a manner 21 ||that renders other provisions of the same __ statute inconsistent, meaningless 22 |! or superfluous”); see also Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir. 23 |11991). Here, if corporations could be served by publication, then, the separate provisions 24 governing for service on the Secretary of State might be meaningless or unnecessary. 25 Section 2111 falls under Chapter 21 of the Corporations Code, governing “Foreign 26 Corporations,” and provides that if no agent has been designated by a foreign corporation. 27 |\then, “the court may make an order that service be made by personal delivery to the 28 || Secretary of State.” CAL. CORP. CODE g 2111.. Although both Section 416.10 ofthe Code | -20-

of Civil Procedure and Section 2111 of the Corporations Code both use the permissive term 2 “may,”!! the Court finds that the Legislature intended substituted service for corporations 3 be performed by service on the Secretary of State, rather than by publication, due to: (1) 4 |l the California Legislature’s enactment of (a) section 416.10, a specific statute addressing 5 corporations, and (b) section 2111, a specific statute addressing service of process on foreign corporations by serving the California Secretary of State, along with (2) the fact 7 || that most caselaw allowing service by publication of a corporation precedes the enactment 8 |lof these statutes. This aligns with California authority indicating that service by 9 publication should be a last resort. Calvert, 29 Cal. at 963 (2018). Further, under manner 10 |! of service, a party can only use publication if the defendant cannot be served with 11 || reasonable diligence by another manner specified, and service upon the California 12 Secretary of State is another manner specified. CAL. CIv. PROC. CODE § 415.50; ARIZ. R: ca. P. 4.1(&)(1). 14 McKendrick v. Western Zinc Mining Co. (1913) 165 Cal. 24, 26-27 provides one 13 of the more detailed discussions of serving a corporation by publication. In McKendrick, 16 || which preceded the enactment of section 2011 of the Corporations Code, the California 17 || Supreme Court affirmed the denial of a motion to vacate default judgment and/or open 18 □ 19 = Abatti v. Imperial Irrigation Dist,, 52 Cal. App. 5th 236, 279 (2020), as modified on 50 denial of reh’g (Aug. 5, 2020), review filed (Aug. 24, 2020) (“Both sections use the term ‘may,’ not ‘shall’ or ‘must,’ and... [t]hus, these statutory provisions permit, but do not 21 ||require, compliance”); see also Carver v. Lehman, 558 F.3d 869, 875 (9th Cir. 2009) (“The statute, using classically permissive language, states that a “person convicted of a sex |loffense . . . may become eligible, in accordance with a program developed by the 23 || department, for transfer to community custody status in lieu of earned release time”); see also Kentucky Dep’t of Corr. v. Thompson, 490 U.S, 454, 464-65 (1989) (providing that the language of a statute that stated “[v]isitors may be excluded” contained “language [that] 25 not mandatory”). Here, Section 416.10 provides that a summons may be served on a 26 corporation through one of four methods, and one of those methods, provides that “[i]f authorized by any provision in Section 1701, 1702, 2110, or 2111 of the Corporations Code 27 ||(or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of. the 08 Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable), as provided by that provision.” -21-

| || the default of a defendant mining company served by publication. 165 Cal. at 26-27. The 2 court examined the question of whether a domestic corporation was properly served by 3 publication after submission of “an affidavit to the effect that there is no president or other 4 || head of the corporation, no secretary, no cashier and no managing agent of the corporation > || within the state of California; that these officers had departed from the state and cannot 6 || after due diligence be found within the state of California.”. Jd. at 26. “The first question 7 presented by the appeal . . . [was] the claim that the law does not authorize the publication 8 || of summons in the case of a domestic corporation.” Jd. at 26. The Court noted that the 9 pertinent section of the CCP authorizing service by publication—section 412,” which 10 repealed Section 30 of the Civil Practice Act and is now today’s section 415.50— II authorized service by publication where the person cannot be found within the state after 12 || due diligence, and that the reference to “person” applied to domestic corporations. Jd. at 13 |126-27. The court also found that concluding the word persons did not include 14 corporations would mean that in some cases, corporations would not be able to be served

13 Veven though they were necessary parties to an action. /d. at 28. Today’s statute, Section 16 415.50, mirrors former section 412 of the CCP and refers to whether “the party to be 17 |lserved cannot with reasonable diligence be served in another manner specified in this 18 | article”; however, the current statute uses the word “party” rather than “person.” □ 19° The McKendrick court upheld service of process on a corporation by publication 20 a principal reason, which makes that case inapplicable to this case: At the time of 21 || McKendrick, there was no statute in effect authorizing service on a corporation by serving 22 Secretary of State, so if service could not be made by publication, some corporations 23 Enacted in 1872, section 412 of the Code of Civil Procedure was repealed and 25 replaced in 1969 by Section 415.50, which authorizes service by publication. The 96 McKendrick case also discussed section 411 of the Code of Civil procedure, which was likewise enacted in 1872 and repealed in and replaced in 1969 by section 416.10, et □□□□□ 27 of the Code of Civil Procedure, which provides the methods by which a summons may 4g || be served upon a corporation. 22.

would never be able to be served, /d. at 28. Thus, the court reasoned that “[a] corporation 2 is often a necessary or proper party to a civil action in which constructive service is 3 proper,” and if a foreign corporation doing business in the state failed to designate an 4 agent, “then, ... it would be a nonresident person upon whom the service by publication > || could be made as upon natural persons.” Jd. at 28. As such, the court declined to apply 6 maxim expression unius, held the term “person,” as used in section 412, should be 7 given its generic meaning, and as a result, service was not invalidated by the fact that the 8 || defendant was a domestic corporation. /d. at 28. The McKendrick decision was from 1913, but in 1931, the California Legislature 10 enacted Civil Code, section 406a, which provided “that a foreign corporation doing 11 || business in the state must by a writing filed with the Secretary of State name some person 12 its agent upon whom process may be served, and on failure, summons in civil actions 13 may be served upon the Secretary of State.” Liguid Veneer Corp. v. Smuckler, 90 F.2d 14 || 196, 200 (9th Cir. 1937); see also Ti aylor v. Navigazione Libera Triestina, 95 F.2d 907, 15 (9th Cir. 1938) (providing that “[t]he California statute provides that service on a 16 foreign corporation doing business in the state can be made by service on 17 |\ the Secretary of State”) (citing Civil Code of California, Sec. 406a, as amended by St. 18 Cal. 1933, p. 1418). “Prior to the enactment of sections 405-406a, St.1931, pp. 1830- 19 || 1832, a foreign corporation had no locus in this state,” and “Injo. statute required it to 20 designate, by a written statement duly filed in the office of the secretary of state, the 21 || location of its principal place of business in the state.” Bohn v. Better Biscuits, Inc., 26 22 App. 2d 61, 64-65 (1938). : 23 In 1947, Civil Code, section 406a was repealed and replaced by Corporations Code, 24 || §§ 6500-6504, which was later repealed and replaced by Corporations Code § 2111 on 25 January 1, 1977. Thus, at the time of the McKendrick opinion in 1913, no statute in 26 || California authorized service on a corporation by service upon the Secretary of State. As Liquid Veneer appears to be the first and oldest California case to authorize service on the California Secretary of State based on statutory authorization. | -23-

Ta result, that case is not only inapposite but was likely superseded by statute—namely, 2 ll California Civil Code, sections 406-406a, which were later repealed and replaced by 3 Corporations Code, §§ 6500-6504, which were then repealed and replaced by current 4 Corporations Code, § 2111. . 5 Further, section 411 of the Code of Civil Procedure, governing service on a 6 corporation, was repealed and replaced by Section 416.10 in 1969, and Section 2111 of 7 Corporations Code, which governs service on the Secretary of State for foreign 8 corporations, was enacted in 1975 . Most cases applying California law and granting an 9 application for publication of summons on a corporation precede the enactment of Section 10 || 416.10 and Section 2111. See, e.g., Watts v. D. & B. Oil Co., 63 Cal. App. 2d 742, 746- (1944) (noting that section 411 of the Code of Civil Procedure was amended in 1941, 12 “making service of process upon the Secretary of State mandatory in most cases as the only means of achieving legal service upon a domestic corporation”) (emphasis added); 14 |! Olender v. Crystalline Min. Co., 149 Cal. 482, 485 (1906) (providing that “the act of March 15 17, 1899, above referred to, evidently substitutes the service upon the Secretary of State 16 for the service by publication formerly prescribed by the Code in cases where a defendant 17 |/has no agent here”) distinguished by Watts v. D. & B. Oil Co., 63 Cal. App. 2d 742, 746— 18 || 47 (1944); Douglass v. Pac. Mail SS. Co., 4 Cal. 304, 305 (1854) (affirming service by 19 publication on a corporation by holding the corporations are included as non-residents 20 || under the statute in effect at the time covering service of process by publication).. 21 The Court finds that the two cases the Court located from 2000 and 2015 conflict 22 || with California’s statutory law along with the weight of authority on this issue. First, in 23 In re Ass'n of Volleyball Professionals, 256 B.R. 313, 319 (Bankr. C.D. Cal. 2000), 24 || declined to follow on other grounds in In re State Line Hotel, Inc., 323 B.R. 703, 710 25 ||(B.A.P. 9th Cir. 2005), vacated and remanded, 242 F. App’x 460 (9th Cir. 2007), the 26 || Bankruptcy Court in the Central District of California allowed the plaintiff to effect service 27 || of the claim objection on a non-responding presumed corporation by publication pursuant 28 ||to section 415.50. The court reasoned that “[sluch service is provided for by Rule 4(h)(1) -24.

| || of the Federal Rules of Civil Procedure, through its incorporation by reference of the 2 |! California law on service by publication”). Id In another case, Murray & Murray v. Raissi 3 || Real Estate Development, LLC (2015) 233 Cal. App. 4th 379, 382-83, 389, the trial court 4 granted the plaintiff permission to serve the defendant limited liability company by > publication, and afterwards, the plaintiff secured a default judgment. /d. at 381-83. 6 However, the California Court of Appeal reversed the lower court’s judgment denying the 7 || motion to set aside the default judgment, not on the basis that a corporate entity cannot be 8 Il served by publication, but rather, on the basis that the law firm had never attempted to mail 9 anything to the addresses at which it could not personally serve the client. It stated that “a 10 mailing address is not ‘unknown’ to a plaintiff merely because personal service could not 11 effected at that address.” Ia. ‘at 383. The Court finds that the Murray court did not 12 directly address the propriety of serving a corporation by publication; rather, it examined 13 whether the evidence in support of the application for publication met the statutory 14 requirements. Further, this Court disagrees with the Jn re Asss’n of Volleyball case as to 15 the propriety of allowing a plaintiff to serve a corporate defendant by publication. 16 Additionally, the California Code of Civil Procedure also allows for service of 17 process on a defendant outside the State of California “as prescribed by the law of the place 18 || where the person is served.” CAL. Civ. PROC. CODE § 413.10(b). Under the Arizona Rules 19 of Civil Procedure, an individual may be served by delivering a copy of the summons and 20 |/complaint to the: (1) individual personally; (2) individual’s dwelling or abode with 21 || someone of suitable age who resides there; or (3) agent authorized by appointment or law 22 receive service of process for the individual. Ariz. R. CIv. P. 4.1(d). “If a domestic 23 corporation does not have an officer or an agent within Arizona on whom process can be 24 || served, the corporation may be served by depositing two copies of the summons and the 25 pleading being served with the Arizona Corporation Commission.” Ariz. R. Crv. P. 26 |/4.1G)(1). Only “[i]f a party shows that the means of service provided in Rule 4.1(c) 27 || through 4.1(j) [service on the Corporation Commission] are impracticable,” may the court 28 |/order service in another manner. ARIZ. R. Crv. P. 4.1(k)(1). Thus, the Court finds it -25-

| persuasive that the Arizona Rules of Civil Procedure prohibit serving a corporation by 2 publication unless service on the Secretary of State has been attempted first. 3 Finally, the Court likewise questions whether one contract with Plaintiff suffices to 4 establish minimum contacts with the State of California for this Court to exercise personal 5 jurisdiction over Defendants. See, e.g., Kourkene v. Am. BBR, Inc., 313 F.2d 769, 773 6 (9th Cir. 1963) (holding that the district court did not err in granting the motion to quash 7 service made upon the defendant through the California Secretary of State where the 8 || defendant foreign corporation: (1) maintained its principal place of business in 9 Philadelphia, Pennsylvania; (2) had never qualified to do business in California; (3) had 10 never “maintained any office, records, agents, employees, distributors or representatives lin California”; (4) had never “manufactured or produced any product or commodity for 12 sale within California”; and (5) had never “shipped or sold any such product or 13 commodity within California” and “[a]t the most, the evidence reveals a few isolated 14 | activities on the part of appellee in California”). Thus, any future declarations in support 15 || of a motion for publication should address this issue as well as include whether Plaintiff 16 met all of the requirements of Rule 4 in order to recover the expenses of service of process. 17 |\ See Fep. R. Civ. P. 4(d)(1) (providing that if a defendant fails to sign and return a form 18 waiving service of process, “the court must impose on the defendant the (1) “expenses 19 later incurred in making service” and (2) reasonable expenses, including attorney’s fees, 20 | of any motion required to collect those service expenses”). . 21 In sum, because California requires business entities, both domestic and foreign, to 22 |lbe served by service upon the California Secretary of State, the Court also denies 23 || Plaintiff's Motion as to CDP. 24 dD. The Court Declines Dismissal Without Prejudice.

2 Rule 4(m) provides that “[i]f a defendant is not served within 90 days after the 26 complaint is filed, the court—on motion or on its own after notice to the plaintiff-—-must 27 dismiss the action without prejudice against that defendant or order that service be made 28 ~26-

1 |) within a specified time.” FED. R. CIv. P. 4(m); see also S.D. Cal. Civ. R. 4.1(a)-(b) 2 (providing that “[slervice of process ... must be performed in accordance with Rule 4, 3 | Fed. R. Civ. P.,” but if “[o]n the one hundredth (100th) day following the filing of the 4 complaint, or on the fourteenth (14th) day following an extension of time to serve, 5 proof of service has not yet been filed, the clerk will prepare an order to show cause with 6 || notice to plaintiff why the case should not be dismissed without prejudice”). However, 7 the plaintiff shows good cause for the failure, the court must extend the time for service 8 || for an appropriate period.” FED. R. Civ. P. 4(m). In the present case, ninety (90) days after the complaint was filed was June 9, 2020. 10 ll As such, because Plaintiff filed its Motion before that ninety (90) day deadline, the Court 11 does not see cause to dismiss the action. However, Plaintiff must exercise more diligence 12 || than what has been exercised in the past. 13 CONCLUSION 14. For the above reasons, the Court DENIES Plaintiff's Motion without prejudice and 15 ||GRANTS Plaintiff a final ninety-day (90) day extension of time to effectuate service 16 || and/or re-file a Motion with a further showing of reasorpble diligence, IT IS SO ORDERED, : 18) DATED: November /t 2020 / os ( L 19 ON ROGER T. BENJTEZ 20 United States District Judge 21 |

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