United States District Court, E.D. California
sued a California limited liability company and ten unnamed
individuals, claiming defendants' parking lot does not
comply with the Americans with Disabilities Act
(“ADA”). Compl., ECF No. 1. Plaintiff filed this
action on July 10, 2016, but has yet to properly serve
defendant MCM, LLC. Plaintiff twice sought continuances, ECF
Nos. 4, 6, and has filed a list of thirty-two unsuccessful
service attempts on defendant MCM's agent Cindy Yang.
See Exs. A & B, ECF No. 6. After more time
passed with no service, the court ORDERED plaintiff to show
cause why this case should not be dismissed. Order, ECF No.
9. Plaintiff timely responded with the instant ex parte
application seeking to hand deliver a copy of the summons and
the Complaint to the Office of the California Secretary of
State. See Application, ECF No. 10 (citing Cal.
Corp. Code § 17701.16(c), formerly denominated §
17061(c)(1)). As explained below, the court GRANTS
Corporations Code section 17701.16(c) permits service on
limited liability companies by hand-delivery to the
California Secretary of State a copy of the process papers,
together with a court order authorizing such service. A court
may authorize 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” to require the same
efforts to serve by other means as required by California
Code of Civil Procedure section 415.50. See Johnson v.
4885 Granite, LLC, No. 215-cv-02698-KJM-EFB, 2016 WL
3538382, at *1 (E.D. Cal. June 29, 2016).
determining whether plaintiff was reasonably diligent for
section 415.50 purposes, a court must examine the
plaintiff's affidavit to see if he “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.”). Due process concerns command that service
under section 415.50 be treated “only as a last
resort.” Donel, 87 Cal.App.3d at 332; 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 “the myriad . . . avenues” have been
properly exhausted to warrant service by [section 415.50].
Donel, 87 Cal.App.3d at 333.
plaintiff has shown reasonable diligence in attempting to
serve MCM, LLC. The California Secretary of State website
listed the agent for service of process for MCM as Cindy
Yang. Ex. 1, ECF No. 10-3. The address for the agent is
listed as 18405 Capistrano Way, Morgan Hill, CA 95307 and
17755 Calle Mazatan, Morgan Hill, CA 95037-5172. Id;
Masanque Decl. ¶ 7, ECF No. 10-1; Application at 3.
Plaintiffs counsel also pursued alternative addresses on a
national investigative database that searches county property
records, voting lists, utilities, Uniform Commercial Code
filings, Secretary of State entity files, employer records,
professional affiliation records, and lists of possible
relatives and probable associates. Masanque Decl. ¶ 6.
Plaintiffs counsel found one such alternate address for Ms.
Yang: 20640 Third St. #250, Saratoga, CA 95070. See
Application at 3. Plaintiffs counsel directed a registered
process server to serve the summons and the Complaint on Ms.
Yang at all three addresses. Id. at 4; Masanque
Decl. ¶¶ 8, 9. During each attempt, the servicer
noted no activity and no answer. Application at 4; Masanque
Decl. ¶¶ 9, 10, 11. Plaintiff also mailed copies of
the summons and Complaint to each address. See
Attachments 4-10, ECF No. 10. As noted, plaintiff s
declarations and exhibits in support of his second
continuance request listed thirty-two specific service
attempts on these three addresses combined, each of which
produced no answer. See generally Exs. A & B,
ECF No. 6.
the court finds plaintiff has adequately demonstrated that
process cannot be served on MCM, LLC or its agent with
reasonable diligence, given the repeated attempts on three
separate addresses with no activity and no response.
Accordingly, the court is satisfied that plaintiff is
entitled to effect service on MCM, LLC 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). The court GRANTS
plaintiffs application, ECF No. 10, and DISCHARGES the
pending order to show cause, ECF No. 9.