Free Motion for Miscellaneous Relief - District Court of California - California

Case 3:08-cv-00089-WQH-JMA

Document 11

Filed 06/30/2008

Page 1 of 4

1 Marcus J. Jackson (SBN 205792) Attorney at Law 2 [email protected] 751 Center Dr., Suite 108-456 3 San Marcos, CA 92069 Phone: (760) 291-1755; Fax: (760) 432-6109 4 Paul R. Kiesel (SBN 119854) 5 [email protected] Patrick DeBlase (SBN 167138) 6 [email protected] Michael C. Eyerly (SBN 178693) 7 [email protected] KIESEL BOUCHER LARSON LLP 8 8648 Wilshire Boulevard Beverly Hills, California 90211 9 Phone: (310) 854-4444; Fax: (310) 854-0812 10

David M. Arbogast (SBN 167571)[email protected] Jeffrey K. Berns (SBN 131351) [email protected] ARBOGAST & BERNS LLP 19510 Ventura Boulevard, Suite 200 Tarzana, California 91356 Phone: (818) 961-2000; Fax: (818) 867-4820

11 Attorney for Plaintiff, FRANCENA D. PENCE and all others Similarly Situated 12 13 14 15 16 FRANCENA D. PENCE, individually and on behalf of all others similarly situated; 17 Plaintiff, 18 v. 19 UNION FIDELITY MORTGAGE, INC., 20 and DOES 1 through 10, INCLUSIVE, 21 22 23 24 25 TO THE HONORABLE COURT: Plaintiff FRANCENA D. PENCE, applies ex parte for an order directing that service of Defendants. CASE NO.: 08 CV 0089 WQH (JMAx) EX PARTE APPLICATION TO SERVE THE CALIFORNIA SECRETRARY OF STATE AND SUPPORTING POINTS AND AUTHORITIES . UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

26 summons be made on Defendant UNION FIDELITY MORTGAGE, INC., a California corporation, 27 by personal delivery to the California Secretary of State, or to any person employed in the California 28 1. EX PARTE APPLICATION TO SERVE CALIFORNIA SECRETARY OF STATE 08 CV 0089 WQH (JMAx)

Case 3:08-cv-00089-WQH-JMA

Document 11

Filed 06/30/2008

Page 2 of 4

1 Secretary of State's office in the capacity of assistant or deputy secretary, one copy of the Summons 2 and Complaint in the above-entitled action, together with a copy of the Court's Order authorizing 3 such service. 4 This application is made on the ground that service of the Summons and Complaint cannot

5 be effected as provided in California Code of Civil Procedure Sections 415.10, 415.20(a), 415.30(a), 6 416.10(a)-(c) or 416.20(a). 7 8 9 I. 10 11 12 Rule 4(h)(1)(A) of the Federal Rules of Civil Procedure allows service on a corporation "in THIS COURT IS EMPOWERED TO ORDER SERVICE ON THE CALIFORNIA SECRETRARY OF STATE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(h)(1)(A) AND CALIFORNIA CORPORATIONS CODE SECTION 1702. MEMORANDUM OF POINTS AND AUTHORITIES

13 the manner proscribed by Rule 4(e)(1)." Rule 4(e)(1) states that service may be made by "following 14 state law for serving summons in an action brought in courts of general jurisdiction in the state 15 where the district court is located or where service is made." 16 17 18 19 20 21 22 23 24 25 26 California Corporations Code §1702(a). 27 28 2. EX PARTE APPLICATION TO SERVE CALIFORNIA SECRETARY OF STATE 08 CV 0089 WQH (JMAx) "If an agent for the purpose of service of process has resigned and has not been replaced or if the agent designated cannot with reasonable diligence be found at the address designated for personally delivering the process, or if no agent has been designated, 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 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 or upon the corporation in the manner provided in subdivision (a), (b) or (c) of Section 416.10 or subdivision (a) of Section 416.20 of the Code of Civil Procedure, the court may make an order that the service be made upon the corporation 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 such service. Service in this manner is deemed complete on the 10th day after delivery of the process to the Secretary of State." California Corporations Code Section 1702 states:

Case 3:08-cv-00089-WQH-JMA

Document 11

Filed 06/30/2008

Page 3 of 4

1

As detailed in the supporting Declaration of Marcus Jackson, Esq. , Defendant is no longer

2 located at the address listed with the California Secretary of State and furthermore Defendant cannot 3 be located despite Plaintiff's due diligence in attempting to locate the company. See Declaration of 4 Marcus Jackson, Esq. in Support of Ex Parte Application to Serve Secretary of State at ¶¶2-4. 5 Therefore, Plaintiff's only means of effecting service is to serve the Secretary of State pursuant to 6 California Corporations Code Section 1702. Thereafter Plaintiff will be able to obtain discovery 7 from the Secretary of State's office concerning the identities of the officers and directors of 8 Defendant and subpoena records from these individuals that will support Plaintiff's allegations and 9 claim for class damages. 10 11 II. 12 CONCLUSION. For all the foregoing reasons, Plaintiff respectfully requests that the Court grant her ex parte

13 application and order service upon the California Secretary of State. 14 15 16 17 DATED: June 30, 2008 18 19 20 21 22 23 24 25 26 27 28 3. EX PARTE APPLICATION TO SERVE CALIFORNIA SECRETARY OF STATE 08 CV 0089 WQH (JMAx) /s/ Marcus Jackson 751 Center Dr., Suite 108-456 San Marcos, CA 92069 Phone: (760) 291-1755 Fax: (760) 432-6109 David M. Arbogast, Esq. Jeffrey K. Berns, Esq. ARBOGAST & BERNS LLP 19510 Ventura Boulevard, Suite 200 Tarzana, California 91356. Phone: (818) 961-2000 Fax: (818) 867-4820 Paul R. Kiesel, Esq. Patrick DeBlase, Esq. Michael C. Eyerly, Esq. KIESEL BOUCHER LARSON LLP 8648 Wilshire Boulevard Beverly Hills, California 90211 Phone: (310) 854-4444 Fax: (310) 854-0812 MARCUS JACKSON, ESQ.

Case 3:08-cv-00089-WQH-JMA

Document 11

Filed 06/30/2008

Page 4 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Attorneys for Plaintiff FRANCENA D. PENCE and all others Similarly Situated

4. EX PARTE APPLICATION TO SERVE CALIFORNIA SECRETARY OF STATE 08 CV 0089 WQH (JMAx)