United States District Court, E.D. California
December 30, 2015, plaintiff Scott Johnson brought suit
against defendants Wen Zhi Deng, Cheng Fa Fang, Yan An Liang,
Ying Feng Xu, and Rai Rocklin Investments, LLC (Rai Rocklin).
See generally ECF No. 1. Plaintiff alleges
defendants violated the Americans with Disabilities Act of
1990, 42 U.S.C. § 12101, et seq., and the Unruh
Civil Rights Act, California Civil Code sections 51-53.
Id. All defendants other than Rai Rocklin have
appeared. Plaintiff has tried unsuccessfully to effect
service on defendant Rai Rocklin on several different
occasions. See Application, ECF No. 19 at 2-3. On
June 16, 2016, plaintiff filed the pending ex parte
application seeking to effect service by delivering by hand a
copy of the summons and the Complaint to the Office of the
California Secretary of State as provided by California
Corporations Code section 17701.16(c), formerly section
17061(c)(1). Plaintiff and defendants who have appeared in
this action all have requested in their status report of June
17, 2016, ECF No. 20, an additional ninety (90) days to allow
for their application for alternate service to be decided,
for service on the California Secretary of State’s
office, and for Rai Rocklin to respond to the complaint and
participate in settlement. As explained below,
plaintiff’s application and the parties’ request
for an additional stay of ninety days both are GRANTED.
Corporations Code section 17701.16(c) permits service on
limited liability companies by hand-delivery to the
California Secretary of State of a copy of the process
papers, together with a court order authorizing such service.
A court may enter an order authorizing such service “if
the designated agent [for the LLC] 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. . .” Cal. Corp. Code § 17701.16(c). The
court interprets “reasonable diligence” in
section 17701.16(c) to require the same efforts to serve by
other means as California Code of Civil Procedure section
determining whether a plaintiff has exercised
“reasonable diligence” for purposes of section
415.50, a court must examine the affidavit presented to see
whether the plaintiff “took those steps a reasonable
person who truly desired to give notice would have taken
under the circumstances.” Donel, Inc. v.
Badalian, 87 Cal.App.3d 327, 333 (1978); see also
Watts v. Crawford, 10 Cal.4th 743, 749 n.5 (1995)
(“The term ‘reasonable diligence’ . . .
denotes a thorough, systematic investigation and inquiry
conducted in good faith by the party or his agent or
attorney.”). Because of due process concerns, service
under section 415.50 must be allowed “only as a last
resort.” Id.; see also Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)
(discussing due process and notice to a party).
“‘Before allowing a plaintiff to resort to
service by [section 415.50], the courts necessarily require
him to show exhaustive attempts to locate the defendant, for
it is generally recognized that service by publication rarely
results in actual notice.’” Watts, 10
Cal.4th at 749. The fact that a plaintiff has taken one or a
few reasonable steps does not necessarily mean that
“all myriad . . . avenues” have been properly
exhausted to warrant service by [section 415.50].
Donel, 87 Cal.App.3d at 333.
the California Secretary of State website listed the agent
for service of process of Rai Rocklin as Leela C. Rai.
Exhibit 1, ECF No. 19-3. The address for the agent is listed
as 1880 Franklin Road, Yuba City, California 95993.
Id. Plaintiff’s counsel directed a registered
process server to serve the summons and the Complaint on
Leela C. Rai at the Yuba City address. Potter Decl. ¶ 3,
ECF No. 19-1. Plaintiff also directed a registered process
server to serve the summons and the Complaint for defendants
at the business itself and another possible service address
of 1415 South George Washington Boulevard, Yuba City,
California 95993. Exhibit 2, ECF No. 19-4. There was no
answer on the first attempt at service on April 15,
2016at 1415 S. George Washington. Id.
On the second attempt on the same day, a man who identified
himself as the brother of Leela C. Rai advised the server
that Ms. Rai had passed away. Id. The process server
further avers that records of the Sutter County Clerk’s
office show Leela C. Rai had passed away on April 3, 2015.
Id. On April 21, 2016, plaintiff made another
attempt to serve Rai Rocklin, this time at 1880 Franklin Road
in Yuba City. The residents of 1880 Franklin Road refused to
accept service, stating they did not know Leela C. Rai.
Id. Plaintiff searched the State Board of
Equalization, Fictitious Business Name filings, property
records, corporate filings, and address listings, but failed
to locate alternative service addresses for Rai Rocklin
Investments, LLC, or its agent for service. Id.
¶ 5; see also Application at 4.
after learning of the death of Rai Rocklin’s agent for
service, plaintiff persisted and consulted myriad other
sources to locate a new agent for service. Plaintiff has
adequately demonstrated that process cannot be served on Rai
Rocklin with reasonable diligence, given Leela C. Rai’s
death and the lack of designation of a new agent.
Accordingly, the court is satisfied that plaintiff is
entitled to effect service by delivering by hand a copy of
the summons and the Complaint to the Office of the California
Secretary of State as provided by California Corporations
Code section 17701.16(c).
plaintiffs application to effect service on Rai Rocklin
through service on the California Secretary of the State and
the parties’ request to extend the stay for an
additional ninety days both are GRANTED.
 The affidavit of service recorded
April 15, 2015 as the first attempt at service, ECF No. 19-4.
The court presumes the correct date is April 15, 2016, given
that plaintiff’s complaint was filed December 30, 2015