Escobedo v. Buffet Concepts, Inc. et al

Filing 9

ORDER DENYING PLAINTIFF'S APPLICATION TO SERVE DEFENDANT HALLAIAN BROTHERS, LLC BY SERVING THE CALIFORNIA SECRETARY OF STATE WITHOUT PREJUDICE, signed by Magistrate Judge Stanley A. Boone on 01/03/2025. IT IS HEREBY ORDERED that Plaintiff's request to serve Defendant Hallaian Brothers, LLC in this action by service on the Secretary of State is DENIED without prejudice. The Court grants Plaintiff a thirty (30) day extension of time to effect service of process on Defendant Hallai an Brothers, LLC. Any proof of service, renewed motion for service by alternative means, or additional request for extension of time supported by good cause shall be filed within thirty (30) days of the date of entry of this order. (Deputy Clerk JN)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE ESCOBEDO,
Plaintiff,

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ORDER DENYING PLAINTIFF’S
APPLICATION TO SERVE DEFENDANT
HALLAIAN BROTHERS, LLC BY
SERVING THE CALIFORNIA
SECRETARY OF STATE WITHOUT
PREJUDICE

v.

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Case No. 1:24-cv-01153-KES-SAB

BUFFET CONCEPTS, INC., et al.,
Defendants.

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(ECF No. 8)

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Currently before the Court is Plaintiff’s application to serve Defendant Hallaian Brothers,

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LLC by serving the California Secretary of State, filed on December 24, 2024. (ECF No. 8.)

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For the following reasons, the Court denies Plaintiff’s application without prejudice.

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I.

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BACKGROUND
On September 27, 2024,

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Plaintiff initiated this action alleging violations of the

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Americans with Disabilities Act (“ADA”) and related California law against Defendants Buffet

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Concepts, Inc. 1 and Hallaian Brothers, LLC. (ECF No. 1.) The same day, summonses were

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issued for each Defendant. (ECF No. 2.)

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Defendant Hallaian Brothers, LLC is a California limited liability company which

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purportedly owns the real property where the business subject to the alleged ADA violations is

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located. (ECF No. 8 at 2.) The statement of information filed with the Secretary of State of

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California on May 3, 2023, indicates that the agent for service of process for Hallaian Brothers,

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On November 19, 2024, Plaintiff filed proof of service on Defendant Buffet Concepts, Inc. (ECF No. 5.) On
December 19, 2024, the Clerk of Court entered default against Defendant Buffet Concepts, Inc. (ECF No. 7).

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LLC is Frank M. Hallaian. (ECF No. 8-2 at 2-3.) The address listed in the statement of

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information for both Defendant Hallaian Brothers, LLC and Mr. Hallaian is 7589 N. Wilson,

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Suite 104 in Fresno, California 93711. The statement of information also identifies Jo Ann Lee

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Hallaian as a manager or member of Defendant Hallaian Brothers, LLC and provides a separate

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address on N. San Rafael in Fresno, California.

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Plaintiff asserts by declaration that he attempted to serve Defendant Hallaian Brothers,

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LLC seven times through its registered agent, Mr. Hallaian. Five unsuccessful attempts to

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personally serve Mr. Hallaian were made at various times on five consecutive weekdays between

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November 8 and November 14, 2024 at the address listed on the statement of information. For

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each attempt, the process server noted the door was locked and the business was closed. (ECF

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No. 8-2 at 5.) Over one month later, on December 18, 2024, Plaintiff’s process server made an

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unsuccessful attempt to serve Mr. Hallaian at a gated residential address, which was discovered

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by Plaintiff’s counsel through a public records search. (ECF No. 8-1 at 2-3; ECF No. 8-2 at 9.)

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The process server spoke to a female via a callbox and was informed that Mr. Hallaian was not at

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home and that all legal documents should go to the office address listed on the statement of

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information. (Id.) Although not documented on any affidavit by the process server, Plaintiff

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represents by declaration that the process server made an additional attempt to serve Mr.

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Hallaian at the office following the unsuccessful attempt at Mr. Hallaian’s residence. (ECF No.

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8-1 at 3.)

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Plaintiff also made five attempts to personally serve Ms. Hallaian at the address listed on

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the statement of information. (Decl. ¶ 8-2 at 7.) Out of five attempts on different days at

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different times, the process server made contact with someone inside the residence on the second

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attempt, at which time the process server was informed that Ms. Hallaian was out of town and

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would return on Wednesday or Thursday. The following three attempts were unsuccessful as

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there was no response at the door and no vehicles at the residence. (ECF No. 8-1 at 2; ECF No.

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8-2.)

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II.

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DISCUSSION
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Rule 4 of the Federal Rules of Civil Procedure provides that proper service of a limited

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liability corporation can be made “in the manner prescribed by Rule 4(e)(1) for serving an

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individual.” Fed. R. Civ. P. 4(h)(1)(A). Rule 4(e)(1) provides that service may be made by

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“following state law for serving a summons in an action brought in courts of general jurisdiction

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in the state where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1).

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Section 17701.16(b) of the California Corporations Code provides that an LLC may be

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served by “[p]ersonal service of a copy of any process against the limited liability company…by

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delivery (1) to any individual designated by it as agent....” Cal. Corp. Code § 17701.16(b).

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However,

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“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. Service in this manner shall be deemed
complete on the 10th day after delivery of the process to the Secretary of State.

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Cal. Corp. Code § 17701.16(c).

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In determining whether a plaintiff has exercised “reasonable diligence,” a court must

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examine the affidavit presented to see whether the plaintiff “took those steps a reasonable person

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who truly desired to give notice would have taken under the circumstances.” Donel, Inc. v.

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Badalian, 87 Cal.App.3d 327, 333 (1978); see also Watts v. Crawford, 10 Cal.4th 743, 749 n.5

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(1995) (“The term ‘reasonable diligence’... denotes a thorough, systematic investigation and

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inquiry conducted in good faith by the party or his agent or attorney.”). The fact that a plaintiff

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has taken one or a few reasonable steps does not necessarily mean that the myriad of avenues

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have been properly exhausted to warrant service by section 415.50. Donel, 87 Cal. App. 3d at

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333.

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The Court will consider in turn whether Plaintiff has “shown by affidavit” that process

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against Defendant Hallaian Brothers, LLC “cannot be served with reasonable diligence upon”
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the registered agent, Mr. Hallaian, in the manner provided by Sections 415.10, 415.20(a), or

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415.30 of the California Code of Civil Procedure. See Cal. Corp. Code § 17701.16(c).

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First, section 415.10 of the California Code of Civil Procedure provides for service of the

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summons and complaint by personal delivery to the person to be served. Here, Plaintiff made six

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attempts to personally serve Mr. Hallaian at the address provided by the statement of

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information. (ECF No. 8-1 at 2-3.) Plaintiff made the attempts on various weekdays during

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business hours. Further, Plaintiff engaged in additional research of public records, successfully

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located Mr. Hallaian’s gated residence, and attempted to effectuate personal service there. The

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Court finds Plaintiff has sufficiently shown by affidavit that process cannot be accomplished

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with reasonable diligence by personal delivery to Mr. Hallaian.

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Additionally, section 415.20(a) provides for substitute service, where “a summons may be

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served by leaving a copy of the summons and complaint during usual office hours in his or her

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office…with the person who is apparently in charge thereof….”

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415.20(a). As noted, Plaintiff attempted service at Mr. Hallaian’s office address at 7589 N.

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Wilson, Suite 104 in Fresno, California 93711 on five different weekdays at various times. The

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door was locked, and the business was purportedly closed, thus precluding substitute service on a

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person apparently in charge of the office. (ECF No. 8-2 at 5.) Additionally, Plaintiff represents

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by declaration that the process server made a sixth attempt to serve Mr. Hallaian at the office on

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an unspecified date after the unsuccessful December 18, 2024 attempt at Mr. Hallaian’s

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residence. (ECF No. 8-1 at 3.) Plaintiff also attempted to serve the only other listed member or

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manager of the LLC, Ms. Hallaian, on five separate occasions at her residence. (ECF No. 8-2 at

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7.) The Court finds Plaintiff has sufficiently shown by affidavit that substitute service pursuant

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to section 415.20(a) could not be accomplished through reasonable diligence.

Cal. Civ. Proc. Code §

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The third method of service referenced in section 17701.16(c) of the California Code of

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Corporations is Section 415.30(a) of the California Code of Civil Procedure, which provides for

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service by mail. Service under section 415.30 “is deemed complete on the date a written

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acknowledgement of receipt of summons is executed, if such acknowledgement thereafter is

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returned to the sender.” Cal. Code. Civ. Proc. § 415.30(c). Here, neither Plaintiff’s motion nor
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his process server’s affidavit mentions any attempt of service by mail. Plaintiff therefore fails to

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“show[] by affidavit to the satisfaction of the court that process against a limited liability

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company…cannot be served with reasonable diligence upon the designated agent by hand in the

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manner provided in…subdivision (a) of Section 415.30 of the Code of Civil Procedure.” Cal.

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Corp. Code § 17701.16(c); see Floyd v. Saratoga Diagnostics, Inc., No. 20-CV-01520-LHK,

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2020 WL 3035799, at *3 (N.D. Cal. June 5, 2020) (denying Plaintiff’s motion to authorize

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alternative service on an entity defendant via the California Secretary of State because Plaintiff

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failed to adequately establish by affidavit his attempts to substantiate service by mail pursuant to

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section 415.30(a).) Accordingly, the Court finds that Plaintiff has not demonstrated by affidavit

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that service under 415.30(a) cannot, with reasonable diligence, be made on Defendant Hallaian

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Brothers, LLC.

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Based on the foregoing, the Court denies without prejudice Plaintiff’s application to serve

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Defendant Hallaian Brothers, LLC by serving the California Secretary of State.

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Plaintiff adequate time to cure the deficiencies identified herein, the Court will grant Plaintiff an

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extension of time to file a motion that includes an affidavit that shows that service by mail under

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section 415.30 cannot be effectuated with reasonable diligence.

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III.

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ORDER

To allow

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request to serve Defendant

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Hallaian Brothers, LLC in this action by service on the Secretary of State is DENIED without

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prejudice. The Court grants Plaintiff a thirty (30) day extension of time to effect service of

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process on Defendant Hallaian Brothers, LLC. Any proof of service, renewed motion for service

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by alternative means, or additional request for extension of time supported by good cause shall

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be filed within thirty (30) days of the date of entry of this order.

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IT IS SO ORDERED.
Dated:

January 3, 2025

STANLEY A. BOONE
United States Magistrate Judge

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