SOFTNICE, INC. v. GLOBAL INTELLI BIZ, INC.
Case No.: 1-13-CV-248457
DATE: May 29, 2014
TIME: 9:00 a.m.
DEPT.: 3

As an initial matter the Court on its own motion takes judicial notice of the Nov. 7, 2013 Order of the Court (Hon. McKenney) granting Plaintiff’s ex parte request “for good cause shown” to serve Defendant via service on the California Secretary of State and the ex parte application and supporting documents filed by Plaintiff on Nov. 7, 2013 pursuant to Evid. Code §452(d). The ex parte application documents are not noticed as to the truth of their contents but to demonstrate the evidence put before the Court (Hon. McKenney) when it authorized service on Defendant via the Secretary of State. The Court also takes judicial notice on its own motion of the Proof of Service of Summons and Complaint filed Dec. 2, 2013 present in the Court file showing that service of both the complaint and a copy of the Nov. 7, 2013 Order was made on Defendant via personal service on the Secretary of State at it’s offices in Sacramento, CA on Nov. 15, 2013 pursuant to Evid. Code §452(d).

Defendant’s motion to quash service on the ground that service was improper is DENIED as service via the Secretary of State was proper as expressly authorized by the Court’s Nov. 7, 2013 Order granting Plaintiff’s ex parte application.

CCP §416.10 (“Service on corporation”) states in pertinent part as follows: “A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods: . . . (d) If authorized by any provision in Section 1701, 1702, 2110, or 2111 of the Corporations Code . . .” Emphasis added.

Corporations Code §1702(a) in turn states in pertinent part as follows: “[I]f the agent designated [for service of process] cannot with reasonable diligence be found at the address designated for personally delivering the process . . . and it is shown by affidavit to the satisfaction of the court that process against a domestic corporation cannot be served with reasonable diligence upon the designated agent by hand . . . the court may make an order that the service be made upon the corporation by delivering by hand to the Secretary of State . . . one copy of the process for each defendant to be served, together with a copy of the order authorizing such service. Service in this manner is deemed complete on the 10th day after delivery of the process to the Secretary of State.” Emphasis added.

It is undisputed that Defendant’s Agent for Service of Process is Deepak Rao. It is undisputed that the address for Defendant’s Agent for Service of Process is 2763A Mauricia Avenue, Santa Clara, CA. In support of its Nov. 7, 2013 ex parte application, Plaintiff submitted to the Court, among other documents, two “Affidavits of Reasonable Diligence” from its process servers attesting that unsuccessful attempts at personal service were made at this address on 7/05/13, 7/06/13, 7/07/13, 7/09/13, 7/12/13, 7/13/13 and 7/14/13 and again on 8/20/13, 8/21/13, 8/24/13, 8/27/13, 8/28/13, 9/01/13, 9/04/13, 9/09/13 and 9/13/13. This was a sufficient showing for the Court (Hon. McKenney) to grant the ex parte application. As personal service on the Secretary of State pursuant to the Court’s Nov. 7, 2013 Order was made on Nov. 15, 2013, service on Defendant was deemed made and complete 10 days later on Nov. 25, 2013.

Where a corporation’s previously designated agent for service of process cannot be found at the address given, service on the Secretary of State is permissible and when made constitutes personal service and relief from default judgment is not available on the asserted basis that the corporation was not served. See Koski v. U-Haul Co. (1963) 212 Cal App 2d 640 (applying former corporations code §3302, the predecessor to current Corp. Code §1702, and former CCP §473a, the predecessor to current CCP §473.5.) See also Coates Capitol Corp. v. Superior Court of Alameda County (1967) 251 Cal App 2d 125 (also applying predecessor statutes; authorized service through Secretary of State provides effective method of obtaining personal service on corporation whose officers and agents could not be found after due diligence).

The decision in Tunis v. Barrow (1986) 184 Cal App 3d 1069, cited by Defendant in its Reply, does not alter the outcome of the motion to quash. The Tunis court, while reversing the trial court’s denial of relief from default as to the individual defendants, upheld the denial as to the corporate defendants who were properly served via service on the Secretary of State pursuant to Corp. Code §1702. Id. at 1079-1080.