Johnson v. MCM, LLC

Filing 11

ORDER signed by District Judge Kimberly J. Mueller on 5/16/2017 ORDERING that the court GRANTS plaintiff's 10 Application and DISCHARGES the pending 9 order to show cause. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSON,

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No. 2:16-cv-01572-KJM-EFB

Plaintiff,
v.

ORDER

MCM, LLC, a California Limited Liability
Company; and Does 1-10,
Defendants.

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Plaintiff sued a California limited liability company and ten unnamed individuals,

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claiming defendants’ parking lot does not comply with the Americans with Disabilities Act

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(“ADA”). Compl., ECF No. 1. Plaintiff filed this action on July 10, 2016, but has yet to properly

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serve defendant MCM, LLC. Plaintiff twice sought continuances, ECF Nos. 4, 6, and has filed a

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list of thirty-two unsuccessful service attempts on defendant MCM’s agent Cindy Yang. See Exs.

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A & B, ECF No. 6. After more time passed with no service, the court ORDERED plaintiff to

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show cause why this case should not be dismissed. Order, ECF No. 9. Plaintiff timely responded

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with the instant ex parte application seeking to hand deliver a copy of the summons and the

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Complaint to the Office of the California Secretary of State. See Application, ECF No. 10 (citing

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Cal. Corp. Code § 17701.16(c), formerly denominated § 17061(c)(1)). As explained below, the

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court GRANTS plaintiff’s application.

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California Corporations Code section 17701.16(c) permits service on limited

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liability companies by hand-delivery to the California Secretary of State a copy of the process

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papers, together with a court order authorizing such service. A court may authorize such service

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“if the designated agent [for the LLC] cannot with reasonable diligence be found at the address

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designated for personal delivery of the process, and it is shown by affidavit to the satisfaction of

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the court that process against a limited liability company or foreign limited liability company

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cannot be served with reasonable diligence upon the designated agent . . .” Cal. Corp. Code

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§ 17701.16(c). The court interprets “reasonable diligence” to require the same efforts to serve by

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other means as required by California Code of Civil Procedure section 415.50. See Johnson v.

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4885 Granite, LLC, No. 215-cv-02698-KJM-EFB, 2016 WL 3538382, at *1 (E.D. Cal. June 29,

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2016).

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In determining whether plaintiff was reasonably diligent for section 415.50

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purposes, a court must examine the plaintiff’s affidavit to see if he “took those steps a reasonable

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

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

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n.5 (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.”). Due process concerns

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command that service under section 415.50 be treated “only as a last resort.” Donel, 87 Cal. App.

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3d at 332; see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)

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(discussing due process and notice to a party). “‘Before allowing a plaintiff to resort to service by

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[section 415.50], the courts necessarily require him to show exhaustive attempts to locate the

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defendant, for it is generally recognized that service by publication rarely results in actual

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notice.’” Watts, 10 Cal. 4th at 749. The fact that a plaintiff has taken one or a few reasonable

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steps does not necessarily mean that “the myriad . . . avenues” have been properly exhausted to

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warrant service by [section 415.50]. Donel, 87 Cal. App. 3d at 333.

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Here, plaintiff has shown reasonable diligence in attempting to serve MCM, LLC.

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The California Secretary of State website listed the agent for service of process for MCM as

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Cindy Yang. Ex. 1, ECF No. 10-3. The address for the agent is listed as 18405 Capistrano Way,
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Morgan Hill, CA 95307 and 17755 Calle Mazatan, Morgan Hill, CA 95037-5172. Id.; Masanque

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Decl. ¶ 7, ECF No. 10-1; Application at 3. Plaintiff’s counsel also pursued alternative addresses

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on a national investigative database that searches county property records, voting lists, utilities,

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Uniform Commercial Code filings, Secretary of State entity files, employer records, professional

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affiliation records, and lists of possible relatives and probable associates. Masanque Decl. ¶ 6.

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Plaintiff’s counsel found one such alternate address for Ms. Yang: 20640 Third St. #250,

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Saratoga, CA 95070. See Application at 3. Plaintiff’s counsel directed a registered process

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server to serve the summons and the Complaint on Ms. Yang at all three addresses. Id. at 4;

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Masanque Decl. ¶¶ 8, 9. During each attempt, the servicer noted no activity and no answer.

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Application at 4; Masanque Decl. ¶¶ 9, 10, 11. Plaintiff also mailed copies of the summons and

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Complaint to each address. See Attachments 4-10, ECF No. 10. As noted, plaintiff’s declarations

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and exhibits in support of his second continuance request listed thirty-two specific service

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attempts on these three addresses combined, each of which produced no answer. See generally

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Exs. A & B, ECF No. 6.

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In sum, the court finds plaintiff has adequately demonstrated that process cannot

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be served on MCM, LLC or its agent with reasonable diligence, given the repeated attempts on

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three separate addresses with no activity and no response. Accordingly, the court is satisfied that

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plaintiff is entitled to effect service on MCM, LLC by delivering by hand a copy of the summons

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and the Complaint to the Office of the California Secretary of State as provided by California

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Corporations Code section 17701.16(c). The court GRANTS plaintiff’s application, ECF No. 10,

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and DISCHARGES the pending order to show cause, ECF No. 9.

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IT IS SO ORDERED.

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This resolves ECF Nos. 9 and 10.

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DATED: May 16, 2017.

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UNITED STATES DISTRICT JUDGE

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