Vernici Caldart, S.R.L. v. Prolink Materials LLC

• Court: District Court, S.D. California
• Decided: October 11, 2023
• Docket: 3:23-cv-01629
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VERNICI CALDART, S.R.L., Case No.: 23-cv-01629-AJB-AHG

12 Plaintiff, ORDER GRANTING EX PARTE 13 MOTION FOR AN ORDER vs. ALLOWING SERVICE UPON 14 PROLINK MATERIALS, LLC 15 PROLINK MATERIALS LLC, THROUGH THE SECRETARY OF STATE OF CALIFORNIA 16 Defendant. 17 (Doc. No. 3) 18 19 Before the Court is Vernici Caldard, S.R.L.’s (“Plaintiff”) ex parte motion for an 20 ordering allowing service upon Prolink Materials, LLC (“Defendant” or “Prolink”) through 21 the Secretary of State of California. (Doc. No. 3.) In support of its request, Plaintiff filed a 22 declaration detailing its efforts at effectuating service on Defendant. (Doc. No. 3-1.) For 23 the reasons set forth below, the Court GRANTS the motion. 24 I. BACKGROUND 25 On September 5, 2023, Plaintiff filed the Complaint in this action to recognize and 26 domesticate a December 5, 2022 Italian Order of Payment (the equivalent of an American 27 court judgment) it obtained against Defendant in a court in Monza, Italy. (Doc. No. 3-1 at 28 1–2.) According to Plaintiff, Defendant “is a Virginia limited liability company that has 1 been doing business in California and is duly qualified with the Secretary of State for the 2 transaction of intrastate business in California.” (Id. at 2.) 3 The California Secretary of State Website lists Patrick Joseph Walsh (“Walsh”) as 4 Defendant’s Agent for Service of Process. (Id.) Walsh is also believed to be Defendant’s 5 Chief Executive Officer and President, as well as its last remaining employee. (Id.) 6 On September 12, 2023, Plaintiff’s process server attempted service at the Poway, 7 California address listed for Walsh on the California’s Secretary of State website. (Id.) The 8 process server found the building vacant, and according to a neighbor, it had been vacant 9 for at least three months. (Id. at 13.) 10 On September 18, 2023, Plaintiff’s process server attempted service at the Vienna, 11 Virgina address listed as Defendant’s principal address on the California’s Secretary of 12 State website. (Id. at 15.) The process server found that an elderly couple has lived in that 13 address since the 1990s and has never heard of either Defendant or Walsh. (Id.) 14 Unable to serve Defendant at the two addresses listed on the California Secretary of 15 State’s website, Plaintiff conducted additional research—including directory, internet, and 16 social media searches—to find a valid address for Defendant and Walsh. (Id. at 2–3.) 17 Plaintiff’s efforts were to no avail. (Id. at 3.) This ex parte application for substitute service 18 via the California Secretary of State follows. (Doc. No. 3.) 19 II. LEGAL STANDARD 20 Federal Rule of Civil Procedure (“Rule”) 4(h)(1)(A) allows for service on a 21 corporation in the manner prescribed by Rule 4(e)(1) for serving an individual. Fed. R. Civ. 22 P. 4(h)(1)(A). Rule 4(e)(1), in turn, provides that a plaintiff may serve process by 23 “following state law for serving a summons in an action brought in courts of general 24 jurisdiction in the state where the district court is located or where service is made[.]” Fed. 25 R. Civ. P. 4(e)(1). 26 Relevant here, under California law, when a plaintiff cannot with “reasonable 27 diligence” locate a defendant’s designated agent or any other person authorized to receive 28 service, California Corporations Code § 1702(a) permits an application for a court order 1 that service be made by hand delivery of the summons and complaint to the California 2 Secretary of State. 1 The statute provides, in pertinent part: 3 [I]f the agent designated cannot with reasonable diligence be found at the address designated for personally delivering the process, . . . and it is shown 4 by affidavit to the satisfaction of the court that process against a domestic 5 corporation cannot be served with reasonable diligence upon the designated agent by hand in the manner provided in [Cal. Civ. Proc. Code §§ 415.10, 6 415.20(a), or 415.30(a)] or upon the corporation in the manner provided in 7 [Cal. Civ. Proc. Code §§ 416.10(a), (b), or (c) or 416.20(a)], the court may make an order that the service be made upon the corporation by delivering by 8 hand to the Secretary of State, or to any person employed in the Secretary of 9 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 10 such service. 11 Cal. Corp. Code § 1702(a). 12 As referenced above, California Code of Civil Procedure §§ 415.10, 415.20, and 13 415.30 provide the rules for personal service, substitute service, and service by mail, 14 whereas §§ 416.10 and 416.20 provide the rules for service on a corporation. In addition 15 to delivery to a designated agent, § 416.10 provides that a summons may be served on a 16 corporation “[t]o the president, chief executive officer, or other head of the corporation, a 17 vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a 18 controller or chief financial officer, a general manager, or a person authorized by the 19 corporation to receive service of process.” Cal. Civ. Proc. Code § 416.10(b). 20 “[A]s a condition precedent to the issuance of an order for such substituted service,” 21 a plaintiff’s affidavit must establish that “the corporation cannot be served with the exercise 22 of due diligence in any other manner provided by law.” Batte v. Bandy, 165 Cal. App. 2d 23 527, 535 (1958). 24 25 26

27 1 The Court recognizes that Plaintiff cites California Corporations Code § 2111 in support of its motion but considering the textual similarity between §§ 2111 and 1702(a), the Court 28 1 III. DISCUSSION 2 Upon review of the affidavit in support of Plaintiff’s request for alternative service, 3 the Court finds that Plaintiff has demonstrated that substitute service upon Defendant via 4 the California Secretary of State is appropriate because the corporation cannot be served 5 with the exercise of due diligence in any other manner provided by law. See Cal. Corp. 6 Code § 1702(a); Batte 165 Cal. App. 2d at 535. 7 First, § 415.10 permits service “by personal delivery . . . to the person to be served.” 8 Cal. Civ. Proc. Code § 415.10. Here, Plaintiff’s process server attempted to serve Walsh, 9 Defendant’s registered agent for service, at the Poway, California address listed on the state 10 website, but found the building vacant and was told it had been so for at least three months. 11 (Doc. No. 3-1 at 2.) The process server also attempted to serve Defendant at its registered 12 principal address in Vienna, Virginia, but found it to be the home of an elderly couple who 13 have resided there since the 1990s and has never heard of Defendant or Walsh. (Id.) 14 In addition, Plaintiff conducted an extensive search to find a valid address at which 15 to serve Defendant or Walsh. Plaintiff’s counsel detailed in her declaration that the search 16 included the following: 17 a. Searching through Prolink’s social media; b. Attempting to find Walsh on social media; 18 c. Conducting a widespread internet search for both Prolink and Walsh; 19 d. Reviewing Prolink’s website; e. Reviewing Prolink’s two filed Statements of Information with the 20 California 21 f. Secretary of State; and g. Calling Prolink’s business phone number and attempting to reach every 22 individual 23 h. listed on the directory multiple times a day on multiple occasions.

24 (Id. at 3.) 25 Counsel explained that on September 21, 2023, one of her colleagues successfully 26 reached one of the employees listed on Defendant’s telephonic directory but was informed 27 that he had not been employed by Defendant for over a year, that the appropriate person to 28 1 contact was Walsh, and that he did not have Walsh’s current contact information because 2 Walsh had recently changed it all. (Id.) 3 Based on the foregoing, the Court finds Plaintiff’s unsuccessful attempts at personal 4 service and locating a valid address for Defendant and Walsh are sufficient to show process 5 cannot be accomplished with reasonable diligence by personal delivery under § 415.10. 6 See Bein v. Brechtel-Jochim Grp., Inc., 6 Cal. App. 4th 1387, 1392 (1992) (“[T]wo or three 7 attempts at personal service at a proper place should fully satisfy the requirement of 8 reasonable diligence and allow substituted service to be made.”). 9 Second, § 415.20(a) permits alternative service by first “leaving a copy of the 10 summons and complaint during usual office hours in his or her office or, if no physical 11 address is known, at his or her usual mailing address . . . with the person who is apparently 12 in charge thereof” and then “mailing a copy of the summons and complaint by first-class 13 mail, postage prepaid to the person to be served at the place where a copy of the summons 14 and complaint were left.” Cal. Civ. Proc. Code § 415.20(a). As discussed above, when 15 attempting to serve the business address or Walsh’s address, Plaintiff’s process server 16 discovered there was no business or Walsh there. (Doc. No. 3-1 at 2.) Thus, Plaintiff has 17 demonstrated service cannot be accomplished according to § 415.20(a). 18 Third, § 415.30(a) permits service of the summons and complaint by mail with a 19 return envelope, prepaid postage. Cal. Civ. Proc. Code § 415.30(a). Plaintiff has 20 sufficiently shown that Defendant cannot be served under this section because the 21 registered address for Defendant’s agent for service has been vacant for at least three 22 months and the registered principal address for Defendant is not a business address, but 23 rather, the home of an elderly couple who have no knowledge of Defendant or Walsh. 24 (Doc. No. 3-1 at 2.) The Court thus finds Plaintiff has demonstrated service cannot be 25 accomplished according to § 415.30(a). 26 Fourth, § 416.10 permits service on a corporation by serving the registered agent for 27 service of process or specified officers of the corporation. Cal. Civ. Proc. Code § 416.10(a); 28 id. § 416.10(b) (authorizing service to “the president, chief executive officer, or other head | the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant 2 || treasurer, a controller or chief financial officer, a general manager, or a person authorized 3 ||by the corporation to receive service of process”). As previously noted, Walsh is 4 || Defendant’s registered agent for service of process, and Plaintiff's counsel attests that he 5 believed to be Defendant’s Chief Executive Officer and President, as well as its last 6 ||remaining employee. (Doc. No. 3-1 at 2.) Accordingly, as analyzed above, Plaintiff has 7 demonstrated that despite the exercise of reasonable diligence, it cannot effectuate service 8 under § 416.10.? 9 Fifth, § 416.20(a) prescribes service on a corporation that “has forfeited its charter 10 || or right to do business” or “dissolved.” Cal. Civ. Proc. Code § 416.20(a). Counsel attests 11 || that Defendant “is duly qualified with the Secretary of State for the transaction of intrastate 12 || business in California.” (Doc. No. 3-1 at 2.) There is no indication that Defendant has 13 ||formally dissolved or forfeited its charter or right to do business. The Court thus finds 14 || service under this section inapplicable here. 15 CONCLUSION 16 For the foregoing reasons, the Court is satisfied that Plaintiff is entitled to proceed 17 || via alternative service. Accordingly, Plaintiff's ex parte motion to serve Defendant Prolink 18 || Materials, LLC through the California Secretary of State is GRANTED. (Doc. No. 3.) 19 || Plaintiff is directed to file proof of such service no later than December 4, 2023. 20 IT IS SO ORDERED. 21 Dated: October 11, 2023 © ¢ 22 Hon, Anthony J.Battaglia 23 United States District Judge 24 25 26 |!2 The Court does not analyze service under § 416.10(c) because it applies only “[i]f the 27 || corporation is a bank.” Cal. Civ. Proc. Code § 416.10(c). Defendant is not a bank. (Doc. 28 No. 1, Compl. at 2 (Defendant “manufactures and distributes high performance coatings for composites, plastics, and metals.”’).)