Plaintiff’s Motion for Alternative Service of Defendants (Judge Elaine Lu)


Case Number: 20STCV14383    Hearing Date: August 30, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

 

SELENA GOMEZ;

 

Plaintiff,

vs.

 

FORGAME US CORPORATION, et al.;

 

Defendants.

 

Case No.:  20STCV14383

 

Hearing Date:  August 30, 2022

 

[TENTATIVE] ORDER RE:

PLAINTIFF’S MOTION FOR ALTERNATIVE SERVICE OF DEFENDANTS GUANGZHOU FEIDONG SOFTWARE TECHNOLOGY CO., LTD., GUANGZHOU FEIYIN INFORMATION TECHNOLOGY CO., LTD., GUANGZHOU JIEYOU SOFTWARE CO., LTD., AND NA LIANG

 

 

Background

            On April 4, 2020, Plaintiff Selena Gomez (“Plaintiff”) filed the instant right of publicity action against Defendants Forgame US Corporation; Forgame Holdings Limited; Mutantbox Interactive Limited; Guangzhou Feidong Software Technology Co., LTD.; Guangzhou Feiyin Information Technology Co., LTD.; Guangzhou Jieyou Software Co., LTD; Dongfeng Wang; Na Liang; and Roy Liu.  The complaint asserts two causes of action for (1) Violation of and Conspiracy to Violate Statutory Right of Publicity and (2) Violation of and Conspiracy to Violate Common Law Right of Publicity.

            On February 28, 2022, the Court denied Plaintiff’s motion for alternative service of process on Defendants Guangzhou Feidong Software Technology Co., LTD.; Guangzhou Feiyin Information Technology Co., LTD.; and Guangzhou Jieyou Software Co., LTD (“PRC Entity Defendants”) without prejudice.  The Court found Plaintiff failed to demonstrate sufficient reasonable diligence and discovery of the current addresses of PRC Entity Defendants for service of process.  The Court specifically noted that Plaintiff’s evidence gave no indication of (1) what efforts, if any, Plaintiff had undertaken to contact and locate any of the defendants with the email addresses, phone number, and fax number Plaintiff had for the parties; (2) efforts to obtain current addresses from the PRC Entity Defendants from their parent company Forgame; and (3) efforts to obtain the PRC Entity Defendants’ current locations from their officers/representatives Dongfeng Wang and Na Liang.  The Court noted the motion was prematurely filed.

            On July 25, 2022, Plaintiff filed the instant motion for alternative service of PRC Entity Defendants and Na Liang (“Liang”).  Defendant Dongfeng Wang (“Wang”) filed opposition papers on August 9, 2022.  Plaintiff filed reply papers on August 15, 2022.

Request for Judicial Notice

            Plaintiff has submitted a request for judicial notice with her reply, requesting judicial notice of: (1) Form S-1 Registration Statement for Prime Number Acquisition I Corp. filed as a confidential draft submission to the SEC on June 4, 2021; (2) Form S-1 Registration Statement for Prime Number Acquisition I Corp. filed with the SEC on February 1, 2022; (3) Amendment No. 2 to Form S-1 Registration Statement for Prime Number Acquisition I Corp. filed with the SEC on May 3, 2022; (4) Prospectus for Prime Number Acquisition I Corp. dated May 16, 2022 and filed with the SEC; and (5) Form 8K Current Report for Prime Number Acquisition I Corp. dated July 13, 2022 and filed with the SEC.  Plaintiff’s request is granted.

Discussion

Motion for Alternative Service

Plaintiff seeks an order authorizing alternative service of process on PRC Entity Defendants and Liang.  Specifically, Plaintiff seeks an order authorizing (1) service on PRC Entity Defendants and Liang by publication, (2) service on PRC Entity Defendants through co-defendants Wang and/or Forgame, and (3) service on Liang through her account with LinkedIn.

            As indicated in the February 28, 2022 order, defendants living in another country can be served with summons in the same way as persons living in other states: any of the four methods by which summons can be served on persons within California (personal delivery, substitute service, mail coupled with acknowledgment of receipt, publication); or certified or registered mail with return-receipt requested; or any other method permitted under the law of the country where the service was made, provided the California court determines (before and after the service was made) that the method used was “reasonably calculated to give actual notice.”  (CCP § 413.10(c).)

            International treaties such as the Hague Convention may limit the manner of service on persons located in signatory countries.  “ ‘[C]ompliance with the Convention is mandatory in all cases to which it applies’ [Citation], and ‘the Convention pre-empts inconsistent methods of service prescribed by state law in all cases to which it applies’ [Citation.]”  (Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 137.)  “This Convention shall not apply where the address of the person to be served with the document is not known.”  (November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 [Hague Service Convention].)  However, this provision has been construed to mean the Hague Service Convention does not apply when defendant’s whereabouts cannot be ascertained despite reasonable diligence.  (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1139; Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1162 [“the reasonable diligence requirement applied to both the question of whether the Hague Convention applied under article I, and whether service by publication was proper”].)

            “The term ‘reasonable diligence’ takes its meaning from the former law: it denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney[.]”  (Kott, supra, 45 Cal.App.4th at 1137.)

  1. Whether the Hague Convention Applies

            Here, Plaintiff has been unable to effectuate service of process of the PRC Entity Defendants and Liang.  In or about May or June 2020, Plaintiff learned that Liang was believed to be in Foothill Farms, California and was also believed to be the CFO of Guangzhou Feidong Software Technology Co., LTD.  (Weingarten Decl., ¶ 12.)  Plaintiff attempted to serve Liang at that location, including service of Guangzhou Feidong Software Technology Co., LTD. through Liang.  (Id.)  Plaintiff also learned that co-defendant Wang, who was believed to be the managing agent of Guangzhou Feiyin Information Technology Co., LTD., was believed to be in Dublin, California and attempted to serve Guangzhou Feiyin Information Technology Co., LTD. through Wang at that location.  (Id.)  However, both individuals claimed to be different people with the same names.  (Id.)

            Subsequently, Plaintiff retained First Legal to conduct further investigations regarding the whereabouts of Defendants and arranged for First Legal to prepare the necessary paperwork and provide for service of process on PRC Entity Defendants in China through the Hague Service Convention.  (Weingarten Decl., ¶ 13.)  A request for service was filed with the PRC’s Central Authority in or about September 2020.  (Id.)  However, in or about February 2021, Plaintiff received notice from the PRC Central Authority that service was unsuccessful because the entities were not at the addresses provided.  (Id.)

            Plaintiff then retained Aaron Lukken (“Lukken”) of Viking Advocates, LLC to assist with Plaintiff’s efforts to effect service of process on PRC Entity Defendants and Liang in China, as provided in the Hague Service Convention.  (Weingarten Decl., ¶ 14; Lukken Decl., ¶¶ 7-8.)  Lukken retained international investigative research and risk advisory firm Blackpeak Group of Hong Kong (“Blackpeak”) to locate PRC Entity Defendants and Liang for service.  (Weingarten Decl., ¶ 14; Lukken Decl., ¶ 8.)  Through Blackpeak, Plaintiff was able to obtain corporate registries and the registered addresses of PRC Entity Defendants and Liang.  (Weingarten Decl., ¶¶ 15-18, 27; Lukken Decl., ¶¶ 8, 9.)  Requests for service of PRC Entity Defendants and Liang were submitted to the PRC Central Authority on or about April 2, 2021.  (Weingarten Decl., ¶¶ 19-22, 27; Lukken Decl., ¶ 10.)  However, service on these addresses was unsuccessful and Plaintiff received certificates of non-service from Lukken on November 3, 2021 and May 10, 2022.  (Weingarten Decl., ¶¶ 23-26, 28.)  The certificates of non-service explained that the office of the address for Guangzhou Feidong Software Technology Co., LTD. was vacant; that Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD. were not at the addresses provided; and that Liang had moved, and her current location was not known.  (Weingarten Decl., ¶¶ 24-26, 28, Exs. 20, 21, 22, 24.)

            Plaintiff contacted Forgame’s counsel and Wang’s counsel on March 28, 2022 to request current or last known addresses for PRC Entity Defendants and Liang.  (Weingarten Decl., ¶¶ 31-32.)  Wang’s counsel provided addresses for PRC Entity Defendants, but those addresses were the same as those used in Plaintiff’s April 2, 2021 requests for service with PRC Central Authority.  (Id., ¶ 31.)  Wang’s counsel did not provide any contact information for Liang.  (Id.)  Forgame’s counsel did not respond.  (Id., ¶ 32.)

Plaintiff also conducted online searches regarding PRC Entity Defendants and learned of certain email addresses and telephone and fax numbers associated with these entities or Forgame.  (Weingarten Decl., ¶ 29.)  Plaintiff asked Wang’s and Forgame’s counsel to confirm the email addresses that Plaintiff found (i.e., IR@forgame.com, im@forgame.com, and zhaopin@gzfeiyin.com) or provide other email addresses.  (Id., ¶ 33.)  Wang’s counsel replied that IR@forgame.com should still be active, but did not provide other email addresses.  (Id.)  Forgame’s counsel did not respond.  (Id.)  Plaintiff sent emails to IR@forgame.com, im@forgame.com, zhaopin@gzfeiyin.com, and art@gzfeiyin.com to obtain information regarding the whereabouts of PRC Entity Defendants.  (Id., ¶ 34.)  Emails to zhaopin@gzfeiyin.com and art@gzfeiyin.com failed to send because the email addresses were described as not found in the bounce-back messages.  (Id.)  Emails to IR@forgame.com and im@forgame.com did not result in email bounce-back messages, but Plaintiff has not received any responses.  (Id.)  Plaintiff also contacted the telephone and fax numbers that were found, but the telephone numbers were not in service, and the faxed letters did not go through.  (Id., ¶ 35.)

Regarding Liang, Plaintiff’s investigation also included extensive Internet searches to find her contact information.  (Weingarten Decl., ¶ 36.)  Plaintiff found what appeared to be Liang’s LinkedIn account and sent a message via LinkedIn’s InMail feature to the account, asking Liang to provide her contact information, including her physical address.  (Id.)  Plaintiff has not received a response.  (Id.)  Plaintiff indicates Plaintiff was unable to find other contact information for Liang despite diligent search.  (Id.)

Plaintiff also authorized Lukken and Blackpeak to conduct a supplemental investigation regarding the whereabouts for PRC Entity Defendants and Liang.  (Weingarten Decl., ¶ 38.)  The updated corporate registries for PRC Entity Defendants reflected the same addresses as the addresses where service was attempted in 2021 under the Hague Service Convention, and no other addresses were found.  (Id.)  The supplemental investigation also yielded no other address for Liang other than the address that was used in the attempted service through the Hague Service Convention in 2021.  (Id.)

 The Court finds Plaintiff has sufficiently demonstrated that the whereabouts of PRC Entity Defendants and Liang could not be ascertained despite reasonable diligence.  Under these circumstances, the Hague Convention does not apply, and service may be made through any of the four methods by which summons can be served on persons within California or as directed by the court, provided service is reasonably calculated to give actual notice.  (CCP § 413.10(c).)  The Court will thus discuss each of the proposed methods of service Plaintiff has requested.

  1. Service by Publication

Plaintiff seeks an order permitting service on PRC Entity Defendants and Liang by publication in the Los Angeles Daily Journal and the China Business Herald.  Plaintiff provides it is also exploring International Business Daily as another Chinese national newspaper most likely to give actual notice to the defendants.

CCP section 415.50 provides for service by publication “if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: [¶] (1) [a] cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action [or] [¶] (2) [t]he party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property.”  (CCP § 415.50(a).)

Given Plaintiff has been unable to obtain valid addresses for PRC Entity Defendants and Liang, the Court finds Plaintiff has demonstrated that PRC Entity Defendants and Liang cannot with reasonable diligence be served by any other manner under the statute.  Plaintiff is also asserting causes of action against PRC Defendants and Liang.  Plaintiff has thus satisfied the requirements for service by publication.

Regarding where the summons is to be published, CCP section 415.50(b) provides that “[t]he court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served.”  (CCP § 415.50(b).)  “If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspaper outside this state that is most likely to give actual notice to that party.”  (Id.)

According to Plaintiff’s counsel, his office contacted third-party companies that provide services in placing legal notices in newspapers published in China and determined that potential Chinese newspapers that may be used for service by publication include China Business Herald or International Business Daily.  (Weingarten, ¶ 46.)  Plaintiff’s counsel provides the China Business Herald is a Chinese business newspaper published and distributed nationally in China and the International Business Daily is a Chinese national newspaper in the economic field with an average daily circulation of over 400,000 copies based on data from 2020.  (Id., ¶¶ 47-48.)  As the last known addresses for PRC Entity Defendants and Liang were in China and these defendants are engaged in the business field, the Court finds both proposed newspapers are newspapers that are most likely to give actual notice to PRC Entity Defendants and Liang.  The Court will thus authorize service by publication in the China Business Herald and/or International Business Daily in this case.

As for the request for publication in the Los Angeles Daily Journal, Plaintiff has made no showing that this newspaper is the most likely to give actual notice to PRC Entity Defendants and Liang.  In fact, because PRC Entity Defendants and Liang appear to be located in China, it would not appear the Los Angeles Daily Journal is likely to give actual notice to these defendants.  However, the Court notes that the language of CCP section 415.50(b) appears to require the summons to be published in a newspaper published in California.  (CCP § 415.50(b) (“The court shall order the summons to be published in a named newspaper, published in this state . . . .”) (emphasis added).)  The order to publish in a named newspaper outside of California appears to be an additional order the Court may make if the defendant to be served is located outside of California.  (Id. (“If the party to be served resides or is located out of this state, the court may also order the summons to be published in a named newspapers outside this state . . . .”) (emphasis added).)  To this extent, the Court will also authorize service by publication in the Los Angeles Daily Journal in addition to service by publication in the China Business Herald and/or International Business Daily.

Accordingly, Plaintiff’s request for a court order authorizing alternative service by publication in the Los Angeles Daily Journal and China Business Herald and/or International Business Daily is granted.

  1. Service Through LinkedIn

Plaintiff also seeks a court order authorizing service on Liang through LinkedIn InMail.

Service through social media or professional networking websites is not a specifically authorized method of service in California.  Plaintiff has not cited any published California cases dealing with this issue, and the Court is unaware of any such cases.  However, Plaintiff has provided federal cases demonstrating federal courts in California have permitted service through LinkedIn and email on defendants in foreign countries when such service is not prohibited by international agreements and are reasonably calculated to provide actual notice to defendants.  (See Facebook, Inc. v. ILikeAd Media Int’l Co. (N.D. Cal. Apr. 29, 2021) 2021 WL 4942676, at *1-2 (finding plaintiffs had demonstrated email service was reasonably calculated to provide actual notice to defendants and that service via LinkedIn would provide assurance the defendant had notice of the action); UBS Fin. Servs. Inc. v. Berger (N.D. Cal. Apr. 24, 2014) 2014 WL 12643321, at *2, 5 (recounting the trial court’s decision to authorize service through LinkedIn InMail and ordering the petitioner to serve the ruling on respondent through email and via LinkedIn’s InMail); Fabian v. LeMahieu (N.D. Cal. June 19, 2020) 2020 WL 3402800, at *3 (finding service by email and social media, coupled with service by mail, is appropriate).)

The Court notes that the requirement that the service not be prohibited by international agreements is a requirement set forth in Federal Rule of Civil Procedure 4(f).  (Facebook, Inc. v. ILikeAd Media Int’l Co. (N.D. Cal. Apr. 29, 2021) 2021 WL 4942676, at *1; UBS Fin. Servs. Inc. v. Berger (N.D. Cal. Apr. 24, 2014) 2014 WL 12643321, at *1-2; Fabian v. LeMahieu (N.D. Cal. June 19, 2020) 2020 WL 3402800, at *1.)  Federal Rule of Civil Procedure 4(f) is inapplicable in this case.  However, CCP section 413.10(c) has a similar limitation specifically with respect to the Hague Service Convention.  As discussed, the Hague Service Convention does not apply here, meaning any prohibition of service by LinkedIn, email, or other social media platforms that may be set forth in the Hague Convention also does not apply.  The only issue is thus whether service on Liang by LinkedIn is reasonably calculated to provide actual notice to Liang in this case.

According to Plaintiff, the LinkedIn account that was discovered for Liang (https://cn.linkedin.com/in/¿-¿-141116b0) matches her Chinese name (¿¿).  (Motion, p. 14:27-28; Weingarten Decl., ¶ 36.)  Plaintiff also indicates that the professional experience shown on the profile is consistent with Liang’s position as CFO at Forgame.  (Motion, pp. 14:28, 15:1; Weingarten Del., ¶ 36, Ex. 31.)  Plaintiff has provided a copy of Forgame’s 2017 Annual Report showing Liang listed as Forgame’s CFO.  (Weingarten Decl., ¶ 5, Ex. 5, 2017 Forgame Annual Report, p. 2, Corporate Information).)

Plaintiff’s evidence tends to show that the LinkedIn profile located during Plaintiff’s investigation is the LinkedIn profile for Defendant Liang.  However, it is unclear whether Liang still utilizes her LinkedIn account.  According to Plaintiff, Liang is a former CFO at Forgame.  (Motion, p. 2:12.)  A review of the printout of the LinkedIn page shows that Liang is listed as the CFO for Forgame from “Apr 2011 – Present.”  (Weingarten Del., ¶ 36, Ex. 31.)  It thus appears the LinkedIn page is outdated, and Liang may no longer be utilizing her account.  To this extent, it is unclear whether service through LinkedIn InMail would be reasonably calculated to provide actual notice to Liang.

However, the Court notes that in each of the instances where the federal court has approved of service by LinkedIn or other social media, these methods were approved of in addition to another authorized method of service.  Service by LinkedIn or other social media thus appears to have been allowed as additional assurance the defendant would have notice of the lawsuit.  (Facebook, Inc. v. ILikeAd Media Int’l Co. (N.D. Cal. Apr. 29, 2021) 2021 WL 4942676, at *2.)  As discussed above, the Court is authorizing service by publication.  The Court will thus approve service on Liang through LinkedIn InMail as an alternative service in addition to service by publication.

Accordingly, Plaintiff’s request for alternative service on Liang through LinkedIn is granted as long as Plaintiff also serves by publication as noted above.

  1. Service Through Co-Defendants Wang and Forgame

Plaintiff also requests a court order authorizing alternative service on PRC Entity Defendants through service on co-defendants Wang and Forgame and/or their counsel.  Plaintiff argues that the nature of the relationship Wang and Forgame share with PRC Entity Defendants means that service through Wang and/or Forgame is reasonably calculated to give actual notice of service to PRC Entity Defendants.

Plaintiff cites to Cosper v. Smith & Wesson (1959) 53 Cal.2d 77, Yamaha Motor Co., Ltd. v. Superior Court (2009) 174 Cal.App.4th 264, and In re LDK Solar Sec. Litig. (N.D. Cal. June 12, 2008) 2008 WL 2415186 in support of this request.

In Cosper, the California Supreme Court primarily dealt with whether there was sufficient minimum contacts such that the defendant foreign manufacturer, Smith & Wesson, could be subject to jurisdiction in California.  However, the California Supreme Court also discussed whether the arrangement of defendant foreign manufacturer, Smith & Wesson, with its manufacturer’s representative, Lookabaugh, was sufficient for Lookabaugh to be deemed a general manager in California for the purposes of effecting service on Smith & Wesson under Corporations Code section 6500.  In finding that the arrangement was sufficient, the California Supreme Court found that “it reasonably appear[ed] that Lookabaugh, as a manufacturer’s representative actively engaged in promoting the sales of Smith & Wesson and earning commissions through such sales, would have ample regular contact with Smith & Wesson and would be of ‘sufficient character and rank to make it reasonably certain’ that Smith & Wesson would be apprised of the service of process.  (Cosper, supra, 53 Cal.2d at 83.)

In Yamaha Motor Co., Ltd., it was undisputed that Yamaha-America was Yamaha-Japan’s wholly owned domestic subsidiary in the United States and that Yamaha-America’s principal business was to act as the exclusive importer and distributor of Yamaha vehicles manufactured by Yamaha-Japan.  (Yamaha Motor Co., Ltd., supra, 174 Cal.App.4th at 268.)  The Court of Appeal discussed Cosper, noting the bulk of the Cosper decision was devoted to the due process minimum contacts issue.  (Id. at 273.)  Notwithstanding that, the Court of Appeal also found that Cosper “clearly held that service on the sales representative was valid service on the corporation itself, reasoning that the representative had ‘ample regular contact’ so that it was ‘reasonably certain’ that the representative would apprise the manufacturer of the service.”  (Id. (quoting Cosper, supra, 53 Cal.2d at 83).)  Based on this, the Court of Appeal found that Yamaha-America was a general manager of defendant Yamaha-Japan because Yamaha-America had an exclusive arrangement to sell the manufacturer’s products; provided warranty service and English owner manuals; did testing and marketing; and received complaints about the manufacturer’s products such that “[p]robable contact between the domestic representative and the foreign corporation leading to actual notification [was] far more present [there] than in Cosper.”  (Id. at 274.)  The Court of Appeal found that “[i]f it was reasonably certain that a relatively casual sporting goods representative would apprise the ‘foreign’ manufacturer of service in Cosper, it [was] doubly reasonably certain Yamaha-America [would] apprise Yamaha-Japan of any service in California.”  (Id.)

The federal court in In re LDK Solar Sec. Litig. (N.D. Cal. June 12, 2008) 2008 WL 2415186 dealt with the issue of whether defendants, both individuals and the corporate defendant’s subsidiary, located in China could be served by service through the domestic corporate defendant at the corporate defendant’s California office.  The federal court noted that to comport with constitutional notions of due process, “the method of service crafted by the district court must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’”  (In re LDK Solar Sec. Litig. (N.D. Cal. June 12, 2008) 2008 WL 2415186, at *4 (quoting Rio Properties, Inc. v. Rio Intern. Interlink (9th Cir. 2002) 284 F.3d 1007, 1016).)  The federal court found that the proposed form of service on the individual and subsidiary defendants in China through service on the domestic corporation’s California office was constitutionally acceptable as the domestic corporation traded on the New York Stock Exchange, the corporate defendant’s subsidiary was located in California, and the remaining defendants were all sophisticated officers, directors, or the Chinese subsidiary of the corporate defendant.  (Id.)

The Court notes that the In re LDK Solar Sec. Litig. Court found service through a corporate defendant’s domestic office was constitutionally acceptable and reasonably calculated to apprise the foreign defendants of the action without providing a well-reasoned explanation as to why that is so.  The federal court stated that the domestic corporate defendant traded on the New York Stock Exchange, its subsidiary is located in California, and the remaining defendants were all sophisticated officers, directors, or the Chinese subsidiary of the corporate defendant.  (In re LDK Solar Sec. Litig. (N.D. Cal. June 12, 2008) 2008 WL 2415186, at *4.)  These facts do not sufficiently explain how service on the domestic corporate defendant’s California office is reasonably calculated to give actual notice to the foreign defendants.  In fact, it appears to suggest that such service is acceptable by virtue of the sophistication of defendants and/or the status of the foreign entity as a subsidiary of the domestic corporation.  As In re LDK Solar Sec. Litig. is a federal case and not binding on this court, the Court declines to follow In re LDK Solar Sec. Litig. to the extent it suggests service through the domestic corporation may be proper by the mere existence of a subsidiary relationship between the domestic corporate defendant and the foreign entity defendant.  Rather, the Court finds service through a domestic entity is proper and acceptable only where there is sufficient evidence demonstrating probable or ample contact between the domestic entity and foreign entity such that service is reasonably calculated to give actual notice to the foreign entity, as was the case in Cosper and Yamaha Motor Co., Ltd.

Here, Plaintiff argues that Forgame has a substantial equity and economic interest in Guangzhou Feidong Software Technology Co., LTD. because Guangzhou Feidong Software Technology Co., LTD. is an indirect, wholly-owned subsidiary of Forgame.  Plaintiff argues that Forgame has a substantial economic interest in Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD. and effective control over them as if they were wholly-owned subsidiaries of Forgame under the Contractual Arrangements Forgame created between Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD., and Guangzhou Feidong Software Technology Co., LTD.  Plaintiff contends these relationships mean service of process through Forgame is reasonably calculated to give actual notice of service to PRC Entity Defendants.

The 2013 Forgame Prospectus submitted by Plaintiff confirms that Guangzhou Feidong Software Technology Co., LTD. is a wholly-owned subsidiary of Forgame and that Guangzhou Feidong Software Technology Co., LTD. entered into a series of Contractual Arrangements with Forgame’s PRC Operational Entities (including Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD.) for Forgame to gain effective control over and receive the economic benefits generated by the businesses currently operated by Forgame’s PRC Operational Entities.  (Weingarten Decl., ¶¶ 5, 6, Ex. 4, 2013 Forgame Prospectus, pp. 5 (Contractual Arrangements), 18 (Definitions – “Feidong” and “Feiyin”), 22 (Definitions – “Jieyou”), 25 (Definitions – “PRC Operational Entities”).)

The Court finds Plaintiff’s evidence regarding the corporate structure and the relationships between PRC Entity Defendants and Forgame is insufficient to show that service through Forgame will be reasonably calculated to give actual notice to PRC Entity Defendants. Unlike in Cosper and Yamaha Motor Co., Ltd., there is insufficient evidence of ample and probable contact between the domestic entity or representative and the foreign entity here.  Evidence showing that Guangzhou Feidong Software Technology Co., LTD. is a subsidiary that has entered into contractual arrangements with Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD. so that Forgame can receive the economic benefits of Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD. is insufficient to show there is probable contact between Forgame and PRC Entity Defendants.  That Forgame would gain economic benefits through such a structure does not show Forgame would be in probable contact with PRC Entity Defendants.  While there is a general mention of control over Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD. through Guangzhou Feidong Software Technology Co., LTD., this general mention without more does not sufficiently show Forgame is in probable contact with PRC Entity Defendants.  Without evidence showing ample or probable contact between Forgame and PRC Entity Defendants, the Court cannot find that service on Forgame and its counsel would be reasonably calculated to give actual notice to PRC Entity Defendants.

The Court notes that, in requesting service through Forgame’s counsel, Plaintiff asserts that Forgame “previously reported in one of its press releases that it intends to consult with counsel regarding service of process on another subsidiary.”  (Motion, p. 14: 2-3.)  A review of the subject press release shows that Forgame was discussing the summons and complaint served on Mutant Box and that Forgame was seeking legal advice on the claims asserted against it.  (Weingarten Decl., ¶ 11, Ex. 12.)  This press release does not show any probable contact between Forgame and any of the PRC Entity Defendants.

Plaintiff’s request for service on PRC Entity Defendants through service on Forgame and its counsel is thus denied.

As for co-defendant Wang, Plaintiff argues that, through Wang’s trust, Wang shares an interest in the PRC Entity Defendants as a major shareholder of Forgame and that Wang also owns a material stake in Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD. as one of five shareholders of the entities.  Plaintiff contends these relationships mean that service of process through Wang and his counsel of record is reasonably calculated to give actual notice of service to PRC Entity Defendants.

Wang has filed an opposition asserting that he no longer has any control of or relationship with PRC Entity Defendants beyond that of a shareholder and that he has moved from China to the United States and has no contact with PRC Entity Defendants.  Wang thus contends serving him would not be reasonably calculated to apprise PRC Entity Defendants of the pendency of this action and afford them an opportunity to present their objections.

Wang has submitted a declaration declaring that he has resigned from his position of executive director of Forgame, effective September 30, 2019; that he has resigned from his remaining positions with Forgame in 2021, including his position as independent non-executive director; that he is not currently an officer, director, employee, or independent contractor with Forgame or any PRC Entity Defendants; that he does not serve any of the entities in any other representative capacity; that he currently owns 0.00% of Guangzhou Feidong Software Technology Co., LTD., 23.75% of Guangzhou Feiyin Information Technology Co., LTD., and 20.94% of Guangzhou Jieyou Software Co., LTD., but is solely a shareholder with no role or control over operations; and that he has not had any contact with any of the PRC Entity Defendants for three years.  (Wang Decl., ¶¶ 2-9.)  Based on Wang’s declaration, it would appear that Wang is currently not in control of or in contact with any of the PRC Entity Defendants such that service through Wang and his counsel would not be reasonably calculated to give actual notice to PRC Entity Defendants.  That Wang is still a shareholder of Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD. is insufficient to show he has ample or probable contact with these entities.

However, Plaintiff has submitted evidence in reply showing that Wang has submitted statements to the SEC regarding a company he is in charge of that indicate he currently holds a fiduciary position as a “director” of Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD.  (Request for Judicial Notice (“RJN”), Ex. 1, June 4, 2021 Form S-1 Registration Statement for Prime Number Acquisition I Corp., p. 129; id., Ex. 2, February 1, 2022 Form S-1 Registration Statement for Prime Number Acquisition I Corp., p. 125; id., Ex. 3, May 3, 2022 Amendment No. 2 to Form S-1 Registration Statement for Prime Number Acquisition I Corp., p. 128; id., Ex. 4, May 16, 2022 Prospectus for Prime Number Acquisition I Corp., p. 125.)  These statements were made as recently as May 16, 2022.  Given this evidence was presented in Plaintiff’s reply in response to Wang’s opposition, it is unclear whether Wang, despite his declaration, is still a current director of Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD. or if Wang subsequently resigned from the position after filing those statements with the SEC such that he is no longer a current director of these entities.

Because Wang could have sufficient probable contact with Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD. if he is still a current director such that service through Wang could be reasonably calculated to give actual notice to Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD., the Court will continue the hearing to allow Wang an opportunity to clarify whether he still maintains such a position with Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD.

Amount of Damages Not Identified in the Operative Complaint

            As discussed in the February 28, 2022, Plaintiff’s complaint fails to give notice of the amount of damages Plaintiff seeks to recover, which is problematic because the Court will not be able to enter default judgments as to any of the currently defaulted defendants, as well as any of the PRC Entity Defendants or Liang if Plaintiff succeeds in serving the original complaint on PRC Entity Defendants and Liang.  It does not appear Plaintiff has made any attempts to amend the complaint to identify a dollar amount of damages.  Plaintiff is reminded that even if Plaintiff is permitted to serve PRC Entity Defendants and Liang through alternative service methods by way of the Court’s granting of this motion, Plaintiff would have to first file an amended complaint and serve the amended complaint, not the original complaint, on PRC Entity Defendants and Liang in the event Plaintiff proceeds with a default judgment.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Selena Gomez’s motion for alternative service is CONTINUED to September 19, 2022 at 8:30 am.

            As discussed above, the Court is inclined to grant Plaintiff’s requests for alternative service through publication in the Los Angeles Daily Journal and China Business Herald and/or International Business Daily and through LinkedIn InMail.  The Court is inclined to deny Plaintiff’s request for alternative service through service on co-defendant Forgame and its counsel.

The motion is continued with respect to Plaintiff’s request for alternative service through service on Defendant Dongfeng Wang and his counsel.  Defendant Dongfeng Wang is ordered to submit supplemental evidence no later than September 6, 2022 clarifying his current roles, if any, with Defendants Guangzhou Feiyin Information Technology Co., LTD. and Guangzhou Jieyou Software Co., LTD.  No later than September 13, 2022, Plaintiff may submit a supplemental response to Wang’s supplemental evidence.

If Plaintiff will be seeking to amend the complaint to identify the amount of its damages in the prayer for relief and body of the complaint, Plaintiff must file and serve either a stipulation signed by all parties or a noticed motion seeking leave to amend within 10 days, noticed for hearing on a date reserved on the online Court Reservation System (CRS).

            Plaintiff to give notice and file proof of service of such.

DATED:  August 30, 2022                                                     ___________________________

Elaine Lu

                                                                                          Judge of the Superior Court