Serving a Corporation Through the Secretary of State: Batte v. Bandy (1958)

When a California corporation cannot be found, a plaintiff may ask the court for permission to serve it through the Secretary of State. But a court will grant that permission only after the plaintiff proves it really tried to find the company first.

The Rule Today

Under Corporations Code section 1702, a plaintiff may serve a corporation through the Secretary of State only if two things happen. First, the plaintiff must show by affidavit that the corporation could not be served "with reasonable diligence" through its agent or officers. Second, the court must issue an order allowing this method of service.

What the Court Decided

Batte v. Bandy applied an earlier version of this law. The plaintiffs' attorney filed an affidavit saying only that service could not be made "despite diligent efforts." The affidavit did not describe any actual efforts to find the corporation's officers or agent.

The Court of Appeal held that this was not enough. It explained that "[a]ffidavits devoid of averments of facts showing that due diligence was exercised to make service have consistently been held to be insufficient." The court rejected the argument that the diligence showing was optional. A proper affidavit is a jurisdictional requirement, meaning the court has no power to order this kind of service without it. Because the affidavit was inadequate, the order and the resulting default could not stand.

Why It Matters

Serving a corporation through the Secretary of State is a last resort. A plaintiff must describe the specific steps it took to find the company's officers or agent. Conclusions like "we tried hard" are not enough.

Batte v. Bandy (1958) 165 Cal.App.2d 527.

This post is general information, not legal advice.