United States District Court, N.D. California, San Francisco Division
ORDER DENYING THE PLAINTIFFS' MOTION TO SERVE THE
DEFENDANTS THROUGH THE CALIFORNIA SECRETARY OF STATE RE: ECF
BEELER, UNITED STATES MAGISTRATE JUDGE
a trademark-infringement and breach-of-contract case
concerning three trademarks related to Blue in Style's
blue sparkling wine, Blanc de Bleu. Blue in Style and its
parent, Bronco Wine Company, allege that their former
business partners, ES/EX Corporation, Premium Vintage
Cellars, and Koh Ohsedo (ES/EX and Premium Vintage's only
officer and director), breached an agreement to convey their
rights in the Blanc de Bleu brand and infringed related
trademarks.After unsuccessfully seeking a waiver of
service from Mr. Ohsedo, the plaintiffs ask to serve the
corporate defendants through California's Secretary of
Rule of Civil Procedure 4(h)(1)(A) allows service of process
on corporations and other business entities by any method
permitted by the law of the state in which the district court
is located or in which service is made. See Fed. R.
Civ. P. 4(h)(1)(A), 4(e)(1). Under California law, a court
may authorize service on a corporation through the Secretary
of State if (1) the corporation's agent for service has
resigned and has not been replaced, and (2) the plaintiff
shows by affidavit that process “against [the] domestic
corporation cannot be served with reasonable
diligence.” Cal. Corp. Code § 1702(a). The second,
“reasonable diligence” requirement may be
satisfied by showing that process cannot be served (i) on the
corporation's designated agent by hand under California
Civil Code sections 415.10, 415.20(a), or 415.30(a), or (ii)
on the corporation itself under Civil Code sections
416.10(a)-(c) or 416.20(a). Id.
the plaintiffs submit counsel's declaration establishing
that “the agents for service of process for Defendants
ES/EX Corporation and Premium Vintage Cellars, Inc. have
resigned and have not been replaced.” They have thus
satisfied the first requirement for service through the
Secretary of State.
they have not satisfied the second. The plaintiffs do not
demonstrate, by affidavit, that ES/EX and Premium Vintage
cannot be served with reasonable diligence. Of course, it
appears that they could not serve the corporations'
“designated agent” because they currently have
none (the agent resigned earlier this year). But the
plaintiffs have not shown that they cannot with reasonable
diligence serve the corporate defendants by other statutorily
identified means - for example, under section 416.10(b).
section provides that a corporation may be served by delivery
of process to “the president, chief executive officer,
or other head of the corporation, a vice president, a
secretary or assistant secretary, a treasurer or assistant
treasurer, a controller or chief financial officer, a general
manager, or a person authorized by the corporation to receive
service of process.” Cal. Civ. Code § 416.10(b).
plaintiffs allege that Mr. Ohsedo is the sole officer and
director of both ES/EX and Premium Vintage. Indeed, as of
October 2014, Mr. Ohsedo was listed as the CEO, CFO,
secretary, and sole director of both corporate
defendants. The plaintiffs' counsel emailed Mr.
Ohsedo at two email addresses the he “has used or
copied . . . in recent unrelated communications with [the]
Plaintiffs.” Counsel requested that Mr. Ohsedo
“waive service on behalf of all Defendants” and
attached the waiver, complaint, and other related
documents. Counsel mailed the same to Mr.
Ohsedo's “U.S. home address, ” a Foster City,
California address listed on the corporations' state
filings. Mr. Ohsedo did not respond to the email
and the mail was returned as unclaimed. He also did
not respond to counsel's follow-up email sent six weeks
efforts to get Mr. Ohsedo to waive service do not show that
the plaintiffs cannot by reasonable diligence serve ES/EX and
Premium Vintage through Mr. Ohsedo as their CEO, CFO, or
secretary. See Cal. Civ. Code § 416.10(b). In
fact, because the plaintiffs do not request an order
authorizing alternative service on Mr. Ohsedo, it appears
that they intend to serve him individually (or at least try
to), and thus may be able to serve him in his capacity as a
corporate officer, too. The plaintiffs must establish by
affidavit that this cannot be done before the court can
authorize service under Corporations Code section 1702.
See Gibble v. Car-Lene Research, Inc., 67
Cal.App.4th 295, 311 (1998) (“Indeed, a careful reading
of Corporations Code section 1702 suggests that a party
serving process upon any corporation that has failed to
designate an agent for service of process should, and
arguably must, first attempt service upon both the
officers and agents enumerated in subdivisions (b) and (c) of
section 416.10 . . . .”) (emphasis in original).
court therefore denies without prejudice the plaintiffs'
motion to serve ES/EX and Premium Vintage through the
California Secretary of State. See Gofron v. Picsel
Techs., Inc., No. C 09-04041 CW, 2010 WL 4807096, at *1
(N.D. Cal. Nov. 19, 2010) (denying without prejudice motion
to seive corporation through the California Secretary of
State where plaintiffs' affidavit did not show reasonable
diligence under section 416.10(b)).
allow time to complete seivice, the court giants in part the
plaintiffs' motion to extend the seivice deadline. The
court extends the date 30 days from the current deadline
(June 5, 2017), not the full 90 days requested. If, despite
reasonable diligence, the plaintiffs need more time, they may
request it as the new deadline approaches.
See Compl. - ECF No. 1,
¶ 1. Record citations refer to material in the
Electronic Case File (“ECF”); pinpoint citations
are to the ECF-generated page ...