1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 HENDRIK BLOCK, Case No. 21-cv-00132-VKD
9 Plaintiff, ORDER GRANTING PLAINTIFF’S 10 v. MOTION FOR SERVICE BY PUBLICATION 11 VENEDICTO HERNANDEZ MADRIGAL, et al., Re: Dkt. No. 20 12 Defendants.
13 14 I. BACKGROUND 15 Plaintiff Hendrik Block alleges that he is a physically disabled person who “is substantially 16 limited in his ability to walk, and must use a walker, wheelchair, or electric scooter for mobility.” 17 Dkt. No. 1 ¶ 8. He filed the present action, alleging that during a November 2020 visit to Stadium 18 Liquors (“Facility”) at 356 Keyes Street in San Jose, California, he encountered certain physical 19 barriers that interfered with his use and enjoyment of the goods, services, privileges and 20 accommodations offered at the Facility. The complaint names several defendants: Venedicto 21 Hernandez Madrigal doing business as Stadium Liquors, as well as Jose Diaz, Trustee of The Diaz 22 1998 Trust dated January 26, 1998 as amended, and Rosa Diaz, Trustee of The Diaz 1998 Trust 23 dated January 26, 1998 as amended (“Diaz defendants”). Defendants are alleged to “own, operate, 24 and/or lease the Facility[.]” Id. ¶ 7. The complaint asserts claims for violation of the Americans 25 with Disabilities Act, 42 U.S.C. § 42 U.S.C. § 12181, et seq., the California Unruh Civil Rights 26 Act (“Unruh Act”), Cal. Civ. Code §§ 51, et seq., and various provisions of the California Health 27 and Safety Code. Id. ¶¶ 16-46. 1 Hernandez Madrigal’s default. Dkt. Nos. 9, 11. The Court granted several requests to extend the 2 deadline for service of process and other case deadlines to allow Mr. Block to attempt service on 3 the Diaz defendants. Dkt. Nos. 10, 13, 15, 17, 19. 4 On the October 5, 2021 extended deadline for service of process, Mr. Block filed the 5 present motion for leave to serve the Diaz defendants by publication, claiming that he has 6 exhausted all reasonable efforts to personally serve them and that they cannot with reasonable 7 diligence be served in another manner. Dkt. No. 20. The matter is deemed suitable for 8 determination without oral argument. Civil L.R. 7-1(b). The previously noticed November 9, 9 2020 hearing is vacated. For the reasons discussed below, the Court grants Mr. Block’s motion to 10 serve the Diaz defendants by publication. 11 II. LEGAL STANDARD 12 Rule 4(e)(1) of the Federal Rules of Civil Procedure provides that service upon an 13 individual may be effected in any judicial district of the United States by “following state law for 14 serving a summons in an action brought in courts of general jurisdiction in the state where the 15 district court is located or where service is made.” California law provides for several means of 16 effecting service upon a defendant. Service of the complaint and summons may be accomplished 17 by (1) personal delivery to the party, Cal. C.C.P. § 415.10; (2) delivery to someone at the party’s 18 usual residence or place of business, followed by a mailing, id. § 415.20; (3) mail with an 19 acknowledgement of receipt, id. § 415.30; (4) mail on persons outside California, id. § 415.40; and 20 (5) publication, id. § 415.50. 21 In California, service by publication is permitted “if upon affidavit it appears to the 22 satisfaction of the court in which the action is pending that the party to be served cannot with 23 reasonable diligence be served in another manner” and that either: (1) “[a] cause of action exists 24 against the party upon whom service is to be made or he or she is a necessary or proper party to 25 the action” or (2) “[t]he party to be served has or claims an interest in real or personal property in 26 this state that is subject to the jurisdiction of the court or the relief demanded in the action consists 27 wholly or in part in excluding the party from any interest in the property.” Cal. C.C.P. 1 person who truly desired to give notice would have taken under the circumstances.” Donel, Inc. v. 2 Badalian, 87 Cal. App. 3d 327, 333 (1978). Nevertheless, because service by publication is “the 3 least likely to succeed in notifying the defendant of an action against him,” it is to be used “‘only 4 as a last resort.’” Bd. of Trustees of the Leland Stanford Junior Univ. v. Ham, 216 Cal. App.4th 5 330, 337-38 (2013) (quoting Watts v. Crawford, 10 Cal.4th 743, 749 n.5 (1995)). “In this context, 6 ‘[t]he term ‘reasonable diligence’ denotes a thorough, systematic investigation and inquiry 7 conducted in good faith by the party or his agent or attorney.’” Id. (quoting Watts, 10 Cal.4th at 8 749 n.5). Each case must be evaluated on its own facts. Id. at 339. “No single formula [or] mode 9 of search can be said to constitute due diligence in every case.” Id. (internal quotations and 10 citations omitted). 11 III. DISCUSSION 12 A. Reasonable Diligence 13 Mr. Block’s counsel, Tanya Moore, has submitted a declaration averring that service on the 14 Diaz defendants has been attempted at three different addresses without success. Dkt. No. 20-2. 15 Based on a Lexis Nexis public records search and a grant deed document, Ms. Moore says that she 16 determined that Mr. and Ms. Diaz own the property at a specified address in Atwater, California. 17 Id. ¶¶ 3, 4, Ex. B. Ms. Moore believes that the Diaz defendants reside at that address, and appends 18 what she represents is a return of service filed in a different disability access case1 (filed in this 19 district by a different plaintiff and different counsel) in which the Diaz defendants were also sued 20 as the owners of the property where the Facility is located. Dkt. No. 20-2 ¶ 13, Ex. C.2 That 21 return of service shows that Ms. Diaz was successfully served by personal service at the Atwater 22 address in November 2019. Id. However, the process server company retained by Mr. Block 23 “reported that they were unable to serve Defendants at the Atwater address.” Id. ¶¶ 6, 7. Mr. 24 Block also submits the declaration of process server Albert Moles, who states that on January 14, 25 2021 and February 27, 2021, he attempted service at the Atwater address, but was told by the 26 1 Case No. 5:19-cv-06209-BLF (VKD) Johnson v. Diaz, et al. 27 1 occupants “that the Defendants are unknown at this address.” Dkt. No. 24 ¶¶ 2-5, Exs. A, B; see 2 also Dkt. No. 20-2 ¶ 9. 3 Ms. Moore further avers that through a public records search, she identified a potential 4 alternative address for the Diaz defendants in Merced, California. Dkt. No. 20-2 ¶ 7. Submitted 5 with the present motion, however, is a “Return of Non-Service” by process server Sarah Jowett, 6 indicating that Ms. Jowett attempted personal service on Ms. Diaz at the Merced address on 7 February 1, 2021, and spoke with a current occupant named “Mary,” who stated that Ms. Diaz 8 owns the house at that address, but does not live there. Dkt. No. 20-2 ¶ 8; Dkt. No. 20-5.3 9 Ms. Moore states that she instructed the process server to make a second attempt at service 10 at the Atwater address. But as noted above, the process server reported that the occupant of the 11 house claimed not to know the Diaz defendants. Dkt. No. 20-2 ¶ 9; Dkt. No. 20-4. 12 In March 2021, Mr. Block hired a private investigator who conducted a skip trace 13 identifying the Atwater address, as well as an address in San Jose, California. Dkt. No. 20-2 ¶ 10. 14 After Ms.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 HENDRIK BLOCK, Case No. 21-cv-00132-VKD
9 Plaintiff, ORDER GRANTING PLAINTIFF’S 10 v. MOTION FOR SERVICE BY PUBLICATION 11 VENEDICTO HERNANDEZ MADRIGAL, et al., Re: Dkt. No. 20 12 Defendants.
13 14 I. BACKGROUND 15 Plaintiff Hendrik Block alleges that he is a physically disabled person who “is substantially 16 limited in his ability to walk, and must use a walker, wheelchair, or electric scooter for mobility.” 17 Dkt. No. 1 ¶ 8. He filed the present action, alleging that during a November 2020 visit to Stadium 18 Liquors (“Facility”) at 356 Keyes Street in San Jose, California, he encountered certain physical 19 barriers that interfered with his use and enjoyment of the goods, services, privileges and 20 accommodations offered at the Facility. The complaint names several defendants: Venedicto 21 Hernandez Madrigal doing business as Stadium Liquors, as well as Jose Diaz, Trustee of The Diaz 22 1998 Trust dated January 26, 1998 as amended, and Rosa Diaz, Trustee of The Diaz 1998 Trust 23 dated January 26, 1998 as amended (“Diaz defendants”). Defendants are alleged to “own, operate, 24 and/or lease the Facility[.]” Id. ¶ 7. The complaint asserts claims for violation of the Americans 25 with Disabilities Act, 42 U.S.C. § 42 U.S.C. § 12181, et seq., the California Unruh Civil Rights 26 Act (“Unruh Act”), Cal. Civ. Code §§ 51, et seq., and various provisions of the California Health 27 and Safety Code. Id. ¶¶ 16-46. 1 Hernandez Madrigal’s default. Dkt. Nos. 9, 11. The Court granted several requests to extend the 2 deadline for service of process and other case deadlines to allow Mr. Block to attempt service on 3 the Diaz defendants. Dkt. Nos. 10, 13, 15, 17, 19. 4 On the October 5, 2021 extended deadline for service of process, Mr. Block filed the 5 present motion for leave to serve the Diaz defendants by publication, claiming that he has 6 exhausted all reasonable efforts to personally serve them and that they cannot with reasonable 7 diligence be served in another manner. Dkt. No. 20. The matter is deemed suitable for 8 determination without oral argument. Civil L.R. 7-1(b). The previously noticed November 9, 9 2020 hearing is vacated. For the reasons discussed below, the Court grants Mr. Block’s motion to 10 serve the Diaz defendants by publication. 11 II. LEGAL STANDARD 12 Rule 4(e)(1) of the Federal Rules of Civil Procedure provides that service upon an 13 individual may be effected in any judicial district of the United States by “following state law for 14 serving a summons in an action brought in courts of general jurisdiction in the state where the 15 district court is located or where service is made.” California law provides for several means of 16 effecting service upon a defendant. Service of the complaint and summons may be accomplished 17 by (1) personal delivery to the party, Cal. C.C.P. § 415.10; (2) delivery to someone at the party’s 18 usual residence or place of business, followed by a mailing, id. § 415.20; (3) mail with an 19 acknowledgement of receipt, id. § 415.30; (4) mail on persons outside California, id. § 415.40; and 20 (5) publication, id. § 415.50. 21 In California, service by publication is permitted “if upon affidavit it appears to the 22 satisfaction of the court in which the action is pending that the party to be served cannot with 23 reasonable diligence be served in another manner” and that either: (1) “[a] cause of action exists 24 against the party upon whom service is to be made or he or she is a necessary or proper party to 25 the action” or (2) “[t]he party to be served has or claims an interest in real or personal property in 26 this state that is subject to the jurisdiction of the court or the relief demanded in the action consists 27 wholly or in part in excluding the party from any interest in the property.” Cal. C.C.P. 1 person who truly desired to give notice would have taken under the circumstances.” Donel, Inc. v. 2 Badalian, 87 Cal. App. 3d 327, 333 (1978). Nevertheless, because service by publication is “the 3 least likely to succeed in notifying the defendant of an action against him,” it is to be used “‘only 4 as a last resort.’” Bd. of Trustees of the Leland Stanford Junior Univ. v. Ham, 216 Cal. App.4th 5 330, 337-38 (2013) (quoting Watts v. Crawford, 10 Cal.4th 743, 749 n.5 (1995)). “In this context, 6 ‘[t]he term ‘reasonable diligence’ denotes a thorough, systematic investigation and inquiry 7 conducted in good faith by the party or his agent or attorney.’” Id. (quoting Watts, 10 Cal.4th at 8 749 n.5). Each case must be evaluated on its own facts. Id. at 339. “No single formula [or] mode 9 of search can be said to constitute due diligence in every case.” Id. (internal quotations and 10 citations omitted). 11 III. DISCUSSION 12 A. Reasonable Diligence 13 Mr. Block’s counsel, Tanya Moore, has submitted a declaration averring that service on the 14 Diaz defendants has been attempted at three different addresses without success. Dkt. No. 20-2. 15 Based on a Lexis Nexis public records search and a grant deed document, Ms. Moore says that she 16 determined that Mr. and Ms. Diaz own the property at a specified address in Atwater, California. 17 Id. ¶¶ 3, 4, Ex. B. Ms. Moore believes that the Diaz defendants reside at that address, and appends 18 what she represents is a return of service filed in a different disability access case1 (filed in this 19 district by a different plaintiff and different counsel) in which the Diaz defendants were also sued 20 as the owners of the property where the Facility is located. Dkt. No. 20-2 ¶ 13, Ex. C.2 That 21 return of service shows that Ms. Diaz was successfully served by personal service at the Atwater 22 address in November 2019. Id. However, the process server company retained by Mr. Block 23 “reported that they were unable to serve Defendants at the Atwater address.” Id. ¶¶ 6, 7. Mr. 24 Block also submits the declaration of process server Albert Moles, who states that on January 14, 25 2021 and February 27, 2021, he attempted service at the Atwater address, but was told by the 26 1 Case No. 5:19-cv-06209-BLF (VKD) Johnson v. Diaz, et al. 27 1 occupants “that the Defendants are unknown at this address.” Dkt. No. 24 ¶¶ 2-5, Exs. A, B; see 2 also Dkt. No. 20-2 ¶ 9. 3 Ms. Moore further avers that through a public records search, she identified a potential 4 alternative address for the Diaz defendants in Merced, California. Dkt. No. 20-2 ¶ 7. Submitted 5 with the present motion, however, is a “Return of Non-Service” by process server Sarah Jowett, 6 indicating that Ms. Jowett attempted personal service on Ms. Diaz at the Merced address on 7 February 1, 2021, and spoke with a current occupant named “Mary,” who stated that Ms. Diaz 8 owns the house at that address, but does not live there. Dkt. No. 20-2 ¶ 8; Dkt. No. 20-5.3 9 Ms. Moore states that she instructed the process server to make a second attempt at service 10 at the Atwater address. But as noted above, the process server reported that the occupant of the 11 house claimed not to know the Diaz defendants. Dkt. No. 20-2 ¶ 9; Dkt. No. 20-4. 12 In March 2021, Mr. Block hired a private investigator who conducted a skip trace 13 identifying the Atwater address, as well as an address in San Jose, California. Dkt. No. 20-2 ¶ 10. 14 After Ms. Moore directed the process server to attempt service at the San Jose address, the process 15 server reported that the resident identified himself as the Diaz defendants’ son, and stated that the 16 Diaz defendants live in Atwater, California, but refused to provide the process server with a street 17 address. Id. ¶ 11. Mr. Block also submits a declaration from process server Scott M. Soto, 18 averring to the same. Dkt. No. 25 and Ex. A. 19 Ms. Moore states that in April 2021, she directed the process server to submit a request for 20 a postal trace in a final effort to locate the Diaz defendants. However, Ms. Moore says that the 21 postmaster has not returned the postal trace, and the process server has informed her that 22 compliance with such requests is optional. Dkt. No. 20-2 ¶ 12. 23 Although service by publication is a method of last resort, the Court is satisfied that Mr. 24 Block is unable to locate a current address for the Diaz defendants, despite reasonable diligence. 25 Without such information, Mr. Block cannot serve the Diaz defendants by other methods, such as 26 personal service, substitute service, or service by mail. The record indicates that Mr. Block has 27 1 conducted a public records search and hired a private investigator to conduct a skip trace, which 2 revealed several potential addresses for the Diaz defendants, the most promising of which is the 3 Atwater address where personal service has been successfully made in the recent past in another 4 matter, but has been attempted more recently at least twice without success. It is conceivable that 5 Mr. Block could do more; he could perhaps use the subpoena process to compel further 6 information from the individual who identified himself as the Diaz defendants’ son. However, 7 courts have concluded that the law requires “reasonable diligence,” rather than “exhaustive efforts 8 to leave no stone unturned.” Cummings v. Brantley Hale, No. 15-cv-04723-JCS, 2016 WL 9 4762208, at *2 (N.D. Cal., Sept. 13, 2016); see also Ham, 216 Cal.App.4th at 338 (“A number of 10 honest attempts to learn defendant's whereabouts or his address by inquiry of relatives, . . . and by 11 investigation of appropriate city and telephone directories [voters’ registries and the assessor’s 12 office property indices situated near the defendant's last known location] generally are 13 sufficient.’”) (quoting Judicial Council comment, § 415.50). Under these circumstances, the Court 14 finds that Mr. Block has made reasonably diligent attempts to locate and serve the Diaz 15 defendants. 16 B. Interest in Property 17 As noted above, service by publication also requires Mr. Block to show either: (1) “[a] 18 cause of action exists against the party upon whom service is to be made or he or she is a 19 necessary or proper party to the action” or “[t]he party to be served has or claims an interest in real 20 or personal property in this state that is subject to the jurisdiction of the court or the relief 21 demanded in the action consists wholly or in part in excluding the party from any interest in the 22 property.” Cal. C.C.P. § 415.50(a). Mr. Block asserts that the Diaz defendants own the real 23 property that is the subject of this action. Dkt. No. 20-1 at 3. Ms. Moore submits that a grant deed 24 shows that the Diaz defendants own the parcel of property where the Facility is located. Dkt. No. 25 20-2 ¶ 2, Ex. A. The Court finds that Mr. Block has also satisfied this requirement for service by 26 publication. 27 Accordingly, Mr. Block’s motion for leave to serve the Diaz defendants by publication is 1 the Merced Sun-Star. Dkt. No. 26. Courts have approved the San Jose Mercury News as a 2 newspaper in which publication is proper. See, e.g., Hernandez v. City of San Jose, No. 16-CV- 3 03957-LHK, 2016 WL 6582048, at *2 (N.D. Cal. Nov. 7, 2016); see also 4 https://www.scscourt.org/forms and filing/forms/PB-4000.pdf (Santa Clara County Superior 5 Court website listing the San Jose Mercury News as a newspaper of general publication). 6 Although the Court has not found similar information for the Merced Sun-Star, the publication’s 7 website indicates that it is published in Merced County (the county in which Atwater is located), 8 and has a circulation of both print (7,926 daily, except Sunday) and digital media (433,000 9 monthly unique visitors and 1,640,000 average monthly page views). See 10 https://www.mcclatchy.com/our-impact/markets/merced-sun-star/#navlink=mi footer. 11 IV. CONCLUSION 12 Based on the foregoing, Mr. Block’s motion for leave to serve the Diaz defendants by 13 publication is granted as follows: 14 1. Good cause appearing, the Court extends the deadline for service of process on the Diaz 15 defendants to December 20, 2021. Fed. R. Civ. P. 4(m). 16 2. Publication shall be made in the San Jose Mercury News and the Merced Sun-Star once 17 per week for four successive weeks. See Cal. C.C.P. § 415.50(c); Cal. Govt Code § 6064. 18 3. If the Diaz defendants’ address is ascertained prior to the expiration of the time 19 prescribed for publication of the summons, a copy of the summons and complaint and of this order 20 for publication shall immediately be served on the Diaz defendants. This order does not preclude 21 service upon the Diaz defendants in any other manner specified in the California Code of Civil 22 Procedure § 415.10 through § 415.30. 23 4. Mr. Block must mail a copy of this order, addressed to the Diaz defendants, to the 24 following addresses: 25 (a) c/o Stadium Liquors, 356 Keyes Street in San Jose, California; 26 (b) 6410 Stockton Avenue, Atwater, California 95301; and
27 1 (c) 4145 San Miguel Way, San Jose, California 95111. 2 IT IS SO ORDERED. 3 Dated: November 4, 2021 4 5 Unigiiia Z Wn, Au Marcle: VIRGINIA K. DEMARCHI 6 United States Magistrate Judge 7 8 9 10 11 a 12
13 14 © 15 16
= 17 6 18 19 20 21 22 23 24 25 26 27 28