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Gambord v. Westside Gas, Inc.

United States District Court, N.D. California, San Jose Division

June 26, 2017

RICHARD GAMBORD, Plaintiff,
v.
WESTSIDE GAS, INC., et al., Defendants.

          ORDER GRANTING MOTION TO SERVE VIA THE CALIFORNIA SECRETARY OF STATE [Re: ECF 18]

          BETH LABSON FREEMAN United States District Judge.

         Plaintiff Richard Gambord (“Gambord”) sued Defendants Westside Gas, Inc. (“Westside Gas”) and Tornessa, Inc. d/b/a as Classic Vapor Dry Cleaners, alleging violations of the American Disabilities Act among other claims. First Am. Compl., ECF 16. Before the Court is Gambord's motion to serve Westside Gas via service on the California Secretary of State because the agent for service of process cannot with reasonable diligence be located. Mot., ECF 18. The motion is unopposed. After reviewing the motion and the exhibits in support thereof, the Court grants the application for reasons stated below.

         I. BACKGROUND

         Gambord filed an initial complaint and summons was issued as to Westside Gas on January 19, 2017. Compl., ECF 1; Summons, ECF 5. Multiple attempts for service on Westside Gas by Gambord's counsel and his staff ensued.

         Christopher Joseph Peoples (“Peoples”) was identified to be the agent for Westside Gas, and the complaint was sent to County Process Services, Inc., a registered process server (“County Process”) on January 24, 2017, to effect service on Peoples. Best Decl. ¶ 2, ECF 18-1. Based on the Secretary of State's website as of January 17, 2017, the entity and address to effect service on Westside Gas are “Christopher Joseph Peoples, at 645 Quail Run Road, Aptos, California.” Id. ¶¶ 2, 4; Ex. A to Best Decl.

         The effort of multiple professional process servers was unsuccessful throughout the period of January 25, 2017 to March 29, 2017. Best Decl. ¶ 4. County Process conducted seventeen attempts, at various times and days to serve Peoples. Id. No one answered the door or was observed at the residence address. Id.

         As of March 2, 2017, another inquiry was made with the California Secretary of State's Office website on the agent for service of process for Westside Gas. Id. ¶ 5. It was discovered that on February 26, 2017, Peoples, the CFO of Westside Gas, filed a Statement of Information which now identifies the entity address as 15966 N. 80th Street in Scottsdale, Arizona. Ex. B to Best Decl.

         On March 2, 2017, County Process was directed to effect service on Peoples at this new address. Best Decl. ¶ 6. From March 15, 2017 and March 30, 2017, County Process conducted eleven attempts, at various dates and times, including a three hour and twenty five minute stakeout. Id. No one answered the door and the building was found locked. Id.; Ex. C to Best Decl.

         On April 3, 2017, Gambord's counsel and his staff located two additional addresses associated with Peoples, at 740 Rosecrans Street in San Diego, California, and 8229 N. 54th Street in Paradise Valley, Arizona. Best Decl. ¶ 7. From April 3, 2017 to April 9, 2017, One Legal Process Service (“One Legal”), one of the process servers, conducted seven attempts, at various times and days to serve Peoples on behalf of Westside Gas at 740 Rosecrans Street in San Diego, California. Id. Again, no one answered the door even though on three separate dates, multiple vehicles were parked in the driveway. Id.; Ex. D to Best Decl.

         As to the address at 8229 N. 54th Street in Paradise Valley, Arizona, One Legal conducted five attempts to serve Peoples at that address from April 5, 2017 to April 17, 2017. Best Decl. ¶ 8. No one answered the door and no one was seen at the residence. Id.

         On March 21, 2017, Gambord's counsel and staff requested County Process to obtain a change of address or boxholder information from the United States Post Office for the address of 645 Quail Run Road, Aptos, California. Best Decl. ¶ 10. The post office report, dated April 10, 2017, indicates a change of address with the new address to be 740 Rosecrans Street, San Diego, California 92106. Id.; Ex. E to Best Decl.

         On April 18, 2017, One Legal was directed to effect service on Peoples at 740 Rosecrans Street in San Diego, California, again despite having attempted to effect service at that location earlier that month unsuccessfully. Best Decl. ¶ 11. One Legal was also instructed to conduct stakeouts at the residence. Id. On May 19, 2017, a three hour stakeout, from 6 a.m. to 9 a.m. was conducted. Id. Two vehicles were observed at the residence, no movement was observed, and there was no answer at the door. Id. From May 25, 2017 to May 30, 2017, four additional attempts at various times were made. Id. On June 3, 2017, a three hour stakeout, from 12 p.m. to 3 p.m. was conducted. Id. Two vehicles were parked at the residence. During the stakeout, a female was contacted at the residence, identifying herself as the wife of the agent for service, Peoples. Id. She stated that he was on a business trip in Arizona, and that she was not affiliated with the company. Id.; Ex. F to Best Decl.

         II. LEGAL STANDARD

         Fed. R. Civ. Proc. 4(h)(1)(A) allows service of process to corporations and other business entities in the same ways permitted by Rule 4(e), [1] including all methods allowed by state law. California law allows for five basic methods of service: 1) personal delivery to the party, see Cal. Civ. Proc. Code § 415.10; 2) delivery to someone else at the party's usual residence or place of business with mailing after (known as “substitute service”), see Id. § 415.20; 3) service by mail with acknowledgment of receipt, see Id. ยง 415.30; 4) service on persons ...


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