United States District Court, S.D. California
DANIEL CANFIELD and REGAN SMITH, individually and on behalf of all others similarly situated, Plaintiffs,
AXIOM DEBT LLC, a California limited liability company, Defendant.
ORDER GRANTING PLAINTIFFS' MOTION FOR ALTERNATE
SERVICE [DOC. NO. 4]
MICHAEL M. ANELLO, UNITED STATES DISTRICT JUDGE
October 20, 2019, Plaintiffs Daniel Canfield and Regan Smith
(“Plaintiffs”) filed this putative class action
against Defendant Axiom Debt LLC (“Defendant”)
alleging violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227. See
Complaint. To date, Defendant has not appeared in this
action. On October 31, 2019, Plaintiffs filed a motion to
permit alternate service on Defendant via the California
Secretary of State. See Doc. No. 4. For the reasons
set forth below, the Court GRANTS
Rule of Civil Procedure 4 provides that proper service of a
limited liability company (“LLC”) may be made
“in the manner prescribed by Rule 4(e)(1) for serving
an individual.” Fed.R.Civ.P. 4(h)(1)(A). Rule 4(e)(1)
provides that service may be made by “following state
law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is
located or where service is made.” Fed.R.Civ.P.
17701.16(b) of the California Corporations Code
provides that an LLC may be served by “[p]ersonal
service of a copy of any process against the limited
liability company . . . by delivery (1) to any individual
designated by its agent, or (2) if the designated agent is a
corporation, to any person named in the latest certificate of
the corporate agent . . . .” Cal. Corp. Code §
If the designated agent 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 .
. . cannot be served with reasonable diligence upon the
designated agent by hand in the manner provided in Section
415.10, subdivision (a) of Section 415.20, or subdivision (a)
of Section 415.30 of the Code of Civil Procedure, the court
may make an order that the service shall be made upon a
domestic limited liability company . . . by delivering by
hand to the Secretary of State, or to any person employed in
the Secretary of 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 the service.
Cal. Corp. Code § 17701.16(c).
415.10 of the California Code of Civil Procedure provides for
service of a summons by personal delivery to the person to be
served. Cal. Civ. Proc. Code § 415.10. Section 415.20(a)
provides for service by leaving a copy of the summons and
complaint at the office of the person to be served, or if no
address is known, the mailing address for the person to be
served. Cal. Civ. Proc. Code § 415.20(a). Thereafter, a
copy must be mailed by first-class mail to the person to be
served at the place where a copy of the summons and complaint
were left. Cal. Civ. Proc. Code § 415.20(a). Lastly,
Section 415.30(a) provides for service by mail. See
Cal. Civ. Proc. Code § 415.30(a).
have interpreted “reasonable diligence” in
section 17701.16(c) to require the same efforts to serve by
other means as in California Civil Procedure Code Section
415.50. See Hopson v. Nove Plaza, LLC,
No. 17-cv-1746-AWI-SAB, 2018 WL 2357122, at *2 (E.D. Cal. May
22, 2018); Johnson v. 4885 Granite, LLC, No.
15-cv-2698-KJM-EFB, 2016 WL 3538382, at *1 (E.D. Cal. June
29, 2016). “In 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.'” Johnson,
2016 WL 3538382, at *1 (quoting Donel, Inc. v.
Badalian, 150 Cal.Rptr. 855, 859 (Ct. App. 1978));
see also Watts v. Crawford, 896 P.2d 807, 811 n.5
(Cal. 1995) (“The term ‘reasonable diligence'
. . . denotes a thorough, systematic investigation and
inquiry conducted in good faith by the party or his agent or
attorney.”). “The fact that a plaintiff has taken
one or a few reasonable steps does not necessarily mean that
the myriad of avenues have been properly exhausted to warrant
service by section 415.50.” Hopson, 2018 WL
2357122, at *2 (citing Donel, 150 Cal.Rptr. at 859).
contend that they have not been able to locate and serve
Defendant's designated agent at the address registered
for personal service. See Doc. No. 4 at 3.
Plaintiffs claim that on October 23, 2019, their process
server attempted to serve Defendant's registered agent at
the address listed on the California Secretary of State's
website, 440 S. Melrose Dr., Suite 208, Vista, CA 92081.
See id.; see also Doc. No. 4-1 (hereinafter
Javitch Decl.”) ¶ 3-4. The process server informed
Plaintiffs' counsel that the address was invalid.
See Doc. No. 4 at 3. Plaintiffs then attempted to
serve the address listed on Defendant's website
(axiomdebt.com), which is the same for the registered agent,
except for the suite number. See Id. The website
indicates that the company's suite number is Suite 207,
as opposed to 208. See Id. The process server
attempted to serve Suite 207, but that address was also
invalid. See Javitch Decl. ¶¶ 5, 8. The
process server returned the proof of non-service.
See Doc. No. 3. Plaintiffs assert, “It appears
that Axiom is intentionally using fake addresses to conceal
its business activity.” Doc. No. 4 at 5. As a result,
Plaintiffs seek leave to serve Defendant via the California
Secretary of State. See Id. at 6.
to Section 17701.16(c) of the California Corporations Code,
before service can be made via the Secretary of State, the
plaintiff must demonstrate that: (1) “the designated
agent cannot with reasonable diligence be found at the
address designated for personal delivery of the
process;” and (2) the plaintiff shows by affidavit that
the LLC “cannot be served with reasonable diligence
upon the designated agent by hand in the manner provided in
Section 415.10, subdivision (a) of Section 415.20, or
subdivision (a) of Section 415.30 of the Code of Civil
Procedure[.]” Cal. Corp. Code § 17701.16(c).
Plaintiffs have satisfied the first requirement and have
demonstrated that the designated agent cannot be found at the
address designated for personal delivery of the process.
See Javitch Decl. ¶¶ 3-8. In fact, the
process server indicated that the address is invalid. See
Id. With respect to the second requirement, although
Plaintiffs do not mention attempting service by hand or mail,
the Court is satisfied based upon counsel's declaration
that Defendant cannot be served with reasonable diligence in
the manner prescribed in Sections 415.10, 415.20(a), or
415.30(a) of California's Code of Civil Procedure.
Because both addresses listed on the California Secretary of
State's website and Defendant's website are invalid,
Plaintiffs cannot serve the registered agent by hand or by
mail. See Cal. Civ. Proc. Code §§ 415.10,
learning that the address listed on the California Secretary
of State's website was invalid, Plaintiffs took
additional steps to find an alternate address for service.
After finding a different address on Defendant's website,
Plaintiffs learned that the new address was also invalid.
Plaintiffs have not been able to identify any other address
for the designated agent for service of process. Accordingly,
the Court ...