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")

8

9

10

11

12

13

14

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.

18 I

19

20

21

22

23

24

25

26

27

28

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

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

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.

III

III

III

2 [201 5_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 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

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

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.)

III

III

III

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

1

2

3

4

5

6

7

8

9

10

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.

27

28 III

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

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

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.

III

III

III

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

1

2

3

4

5

6

7

8

9

10

1 1

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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