1 RICHARD N. SIEVING, ESQ. (SB #133634) LUKE G. PEARS-DICKSON, ESQ. (SB #296581)
2 THE SIEVING LAW FIRM, A.P.C. 100 Howe Avenue, Suite 220N
3 Sacramento, California 95825 Telephone: (916) 444-3366
4 Facsimile: (916) 444-1223
5 Attorneys for DefendantlCross-DefendantlCross-Complainant JELD-WEN, inc., an Oregon Corporation dba SUMMIT WINDOW
6 & PATIO DOOR (erroneously sued herein as separate entities "SUMMIT WINDOW & PATIO DOOR" and "Doe 3: Jeld-Wen, Inc.
7 dba Summit Window & Patio Door")
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
CILKER APARTMENTS, LLC, Case No. 1-13-CV-258281
Plaintiff,
v.
WESTERN NATIONAL 15 CONSTRUCTION, et al.
JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S EX PARTE APPLICATION FOR ORDER DIRECTING SERVICE OF SUMMONS ON MULTI-BUILDING STRUCTURES, INC. BY DELIVERY OF PROCESS TO SECRETARY OF STATE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF·
1 6 Defendants. __________________________ ~I
17 AND ALL RELATED CROSS-ACTIONS.
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Telephonic Appearance Date: June 9, 2015 Time: 3:00 p.m. Dept.: One (1) Judge: Hon. Peter H. Kirwan
TO THE COURT, ALL PARTIES AND THEIR RESPECTIVE COUNSEL OF
RECORD:
PLEASE TAKE NOTICE that on the above-referenced date and time, or as soon
thereafter as the matter may be heard in Department One of the above-entitled Court
located at 191 N. First Street, San Jose, CA 95113, DefendantlCross-DefendantlCross
ComplainantJELD-WEN, inc., an Oregon Corporation dba SUMMITWINDOW & PATIO
DOOR (erroneously sued herein as separate entities "SUMMIT WINDOW & PATIO
-lE SIEVING LAW FIRM, A.P.C. 100 Howe Ave., Suite 220N Sacramento, CA 95825
(916) 444·3366
1 [2015_06_02-cilker (ex parte app for svc on mbsi via sos).app.wpd (lpd:slb)]
JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S EX PARTE APPLICATION FOR ORDER DIRECTING SERVICE OF SUMMONS ON MUL TIBUILDING STRUCTURES, INC. BY DELIVERY OF PROCESS TO SECRETARY OF STATE; MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT THEREOF
E-FILEDJun 8, 2015 2:49 PM
David H. YamasakiChief Executive Officer/Clerk
Superior Court of CA, County of Santa ClaraCase #1-13-CV-258281 Filing #G-73402
By P. Jauregui, Deputy
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HE SIEVING LAW FIRM, A.P.c. 100 Howe Ave., Suite 220N Sacramento, CA 95825
(916) 444·3366
DOOR" and "Doe 3: Jeld-Wen, Inc. dba Summit Window & Patio Door) (hereinafter
"JELD-WEN") will, pursuant to California Rules of Court 3.1200, et seq. and Santa Clara
County Superior Court Local Rule 7(f), appear ex parte and apply for an Order directing
the process in this action be served on Cross-Defendant MULTI-BUILDING
STRUCTURES, INC. ("MBS") by personally delivering to the Secretary of State of
California copies of JELD-WEN's Summons, Cross-Complaint and related documents
together with one copy of the Order herein requested. This Ex Parte Application is
brought pursuant to Code of Civil Procedure §416.10(d) and Corporations Code §1702
(a).
Pursuant to California Rule of Court 3.1202(a), the names, addresses, and
telephone numbers of any attorney known to JELD-WEN to be an attorney for any party
in this matter, or if no such attorney is known, the names, addresses and telephone
numbers of any party known to JELD-WEN who has appeared in this action are listed
in Exhibit "A" attached hereto.
Pursuant to California Rule of Court 3.1202(b), JELD-WEN hereby states that on
July 22 and 29, 2014, Plaintiff CILKER APARTMENTS, LLC (hereinafter "Plaintiff") filed
an Application for Order to Publish Summons and Alternative Request to Serve
Summons on Secretary of State on behalf of MBS. In addition, an Application to serve
the Secretary of State on behalf of MBS was previously filed by Defendant WESTERN
NATIONAL CONSTRUCTION (hereinafter "WESTERN"). This Court granted Plaintiff's
Application on August 20,2014 and WESTERN's Application on September 2,2014.
This Ex Parte Application is and will be based on this Application, the
accompanying Memorandum of Points and Authorities and Declaration of Luke G.
Pears-Dickson, the complete Court file and records in this action, and upon such
evidence as may be presented at the hearing on this Application.
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JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S EX PARTE APPLICATION FOR ORDER DIRECTING SERVICE OF SUMMONS ON MULTIBUILDING STRUCTURES. INC. BY DELIVERY OF PROCESS TO SECRETARY OF STATE; MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT THEREOF
E-FILED: Jun 8, 2015 2:49 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73402
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HE SIEVING LAW FIRM, A.P.C. TOO Howe Ave., Suite nON Sacramento, CA 95825
(916) 444-3366
DATED: June 8, 2015 THE SIEVING LAW FIRM, A.P.C.
By:~~J4--lJKE(f. PEAR -DICKSON
Attorney for Defendant/CrossDefendant/Cross-Complainant JELD-WEN, inc., an Oregon Corporation dba SUMMIT WINDOW & PATIO DOOR (erroneously sued herein as separate entities "SUMMIT WINDOW & PATIO DOOR" and "Doe 3: Jeld-Wen, Inc. dba Summit Window & Patio Door")
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
JELD-WEN, inc.'s (hereinafter "JELD-WEN") Cross-Complaint for Indemnification,
Apportionment of Fault, Declaratory Relief, Third Party Tort of Another, Breach of
Contract and Implied Contractual Indemnity was filed and Summons was duly issued on
October 1 0,2014. The FirstAmendment to JELD-WEN's Cross-Complaint to Substitute
True Names of Fictitiously Named Cross-Defendants wherein Cross-Defendant MUL TI
BUILDING STRUCTURES, INC. (hereinafter "MBS") was named as MOE 2 was filed on
May 11,2015. (Declaration of Luke G. Pears-Dickson ("Decl. of Pears-Dickson") at 114.)
MBS was a corporation organized and existing under the laws of the State of
California and authorized to do business in California, with its principal place of business
in this state located at 32971 Mission Blvd., Suite 210, Fremont, CA 94539. (Oed. of
Pears-Dickson at 115.) MBS is a suspended corporation. (Id.; see California Secretary
of State Business Entity Detail printout for MBS, attached as Exhibit "A" to Decl. Of
Pears-Dickson, filed and served concurrently herewith.)
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3 [2015_06_02-cilker (ex parte app for svc on mbsi via sos).app.wpd (Ipd:slb)]
JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S EX PARTE APPLICATION FOR ORDER DIRECTING SERVICE OF SUMMONS ON MUL TIBUILDING STRUCTURES, INC. BY DELIVERY OF PROCESS TO SECRETARY OF STATE; MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT THEREOF
E-FILED: Jun 8, 2015 2:49 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73402
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II.
STATUTORY SUPPORT
California Rules of Court, Rule 3.1204(b) states the following, in pertinent part:
An ex parte application must be accompanied by a declaration regarding notice stating: (1) The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 3.1203, the applicant informed the opposing party where and when the application would be made; (2) That the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party; or (3) That, for reasons specified, the applicant should not be required to inform the opposing party.
11 Further, California Rules of Court Rule 3.1202(c) requires that "[a1n applicant
12 must make an affirmative factual showing in a declaration containing competent
13 testimony based on personal knowledge of irreparable harm, immediate danger, or any
14 other statutory basis for granting relief ex parte."
15 Finally, Corporations Code §1702 (a) provides in pertinent part:
16 If an agent for the purpose of service of process has resigned and has not been replaced or if the agent
1 7 designated cannot with reasonable diligence be found at the address designated for personally delivering the process, or
18 if no agent has been designated, and it is shown by affidavit to the satisfaction of the court that process against a
1 9 domestic corporation cannot be served with reasonable diligence upon the designated agent by hand in the manner
20 provided in Section 415.10, subdivision (a) of Section 415.20 or subdivision (a) of Section 415.30 of the Code of
21 Civil Procedure or upon the corporation in the manner provided in subdivision (a), (b) or (c) of Section 416.10 or
22 subdivision (a) of Section 416.20 of the Code of Civil Procedure, the court may make an order that the service be
23 made upon the corporation by delivering by hand to the Secretary of State, or to any person employed in the
24 Secretary of State's office in the capacity of assistant or deputy, one copy of the process for each defendant to be
25 served, together with a copy of the order authorizing such service. Service in this manner is deemed complete on the
26 10th day after delivery of the process to the Secretary of State.
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HE SIEVING LAW FIRM, A.P.C. 100 Howe Ave., Suite 220N Sacramento, CA 95825
4 [2015_06_02-cilker (ex parte app for svc on mbsi via sos).app.wpd (Ipd:slb)]
JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S EX PARTE APPLICATION FOR ORDER DIRECTING SERVICE OF SUMMONS ON MUL TIBUILDING STRUCTURES, INC. BY DELIVERY OF PROCESS TO SECRETARY OF STATE; MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT THEREOF (916) 444-3366
E-FILED: Jun 8, 2015 2:49 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73402
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HE SIEVING LAW FIRM, A.P.C. 100 Howe Ave .. Suite 220N Sacramento, CA 95825
(916) 444-3366
m. ARGUMENT
JELD-WEN has been unable to effectuate service of process on Cross-Defendant
MBS pursuant to Code of Civil Procedure §416.10, althoughJELD-WEN has made
diligent efforts to do so. (Dec!. of Pears-Dickson at 116.) Cross-Complainant JELD-WEN
has attempted to personally serve the Summons and Cross-Complaint on MBS' agent
for service of process at the agent's last known registered address of 32971 Mission
Blvd., Suite 210, Fremont, CA 94539. (Id.) Neither MBS nor its agent for service, Mark
Stevens, could be located at this address. (Id.; see Non-Service Report of One Legal,
Inc. attached as Exhibit "B" to Decl. of Pears-Dickson, filed and served concurrently
herewith.)
Both PlaintiffCILKERAPARTMENTS, LLC (hereinafter "Plaintiff') and WESTERN
NATIONAL CONSTRUCTION (hereinafter "WESTERN") were likewise unable to
personally serve MBS and this Court entered Orders directing service of Plaintiff's and
WESTERN's Summonses on MBS by delivery of process on the Secretary of State.
MBS failed to respond to Plaintiffs First Amended Complaint and was defaulted on
November 25,2014. MBS also failed to respond to WESTERN's Cross-Complaint and
was defaulted on February 27,2015.
Because the agent for service for the corporation cannot be found, JELD-WEN
now requests service be made on MBS via the Secretary of State.
IV.
CONCLUSION
Based upon the above, JELD-WEN respectfully requests that the Court grant its
Application for Order Directing Service of Summons on Cross-Defendant MBS by
Delivery of Process on the Secretary of State.
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5 [2015_06_02-cilker (ex parte app for svc on mbsi via sos).app.wpd (lpd:slb)]
JELD-WEN. INC. DBA SUMMIT WINDOW & PATIO DOOR'S EX PARTE APPLICATION FOR ORDER DIRECTING SERVICE OF SUMMONS ON MULTIBUILDING STRUCTURES, INC. BY DELIVERY OF PROCESS TO SECRETARY OF STATE; MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT THEREOF
E-FILED: Jun 8, 2015 2:49 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73402
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HE SIEVING LAW FIRM, A.P.c. 100 Howe Ave., Suite 220N
Sacramento, CA 95825 (916) 444-3366
DATED: June 8,2015 THE SIEVING LAW FIRM, A.P.C.
BY:_~::-::>t7:~:-=' ~=-=-/--:A ~~~:::-::--:-:::'·,....;./~k:::-:-"~-:::-:~:-::-·~~·-=-=-=-. -.::.-__ _
dJKEG:PEARS-DICKSON Attorney for Defendant/CrossDefendant/Cross-Complainant JELD-WEN, inc., an Oregon Corporation dba SUMMIT WINDOW & PATIO DOOR (erroneously sued herein as separate entities "SUMMIT WINDOW & PATIO DOOR" and "Doe 3: Jeld-Wen, Inc. dba Summit Window & Patio Door")
6 [2015~06_02-cilker (ex parte app for svc on mbsi via sos).app.wpd (Ipd:slb)]
JELD-WEN, INC. DBA SUMMIT WINDOW & PATIO DOOR'S EX PARTE APPLICATION FOR ORDER DIRECTING SERVICE OF SUMMONS ON MUL TIBUILDING STRUCTURES, INC. BY DELIVERY OF PROCESS TO SECRETARY OF STATE; MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT THEREOF
E-FILED: Jun 8, 2015 2:49 PM, Superior Court of CA, County of Santa Clara, Case #1-13-CV-258281 Filing #G-73402