Garcia v. Clement-Rorick

• Court: District Court, N.D. California
• Decided: January 14, 2022
• Docket: 3:21-cv-05037
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 ORLANDO GARCIA, Case No. 21-cv-05037-TSH

10 Plaintiff, ORDER DENYING MOTION FOR 11 v. SERVICE BY PUBLICATION

12 ROXANNE CLEMENT-RORICK, Re: Dkt. No. 14 13 Defendant.

14 15 I. INTRODUCTION 16 Plaintiff Orlando Garcia seeks leave to serve Defendant Roxanne Clement-Rorick by 17 publication in the West County Times. ECF No. 14. The Court finds this matter suitable for 18 disposition without oral argument. See Civ. L.R. 7-1(b). Having considered Garcia’s request, the 19 relevant legal authority, and the record in this case, the Court DENIES his motion for the 20 following reasons. 21 II. BACKGROUND 22 Garcia is a California resident with physical disabilities who requires a wheelchair for 23 mobility. Compl. ¶ 1, ECF No. 1. In May 2021 he went to Café Eritrea D’Afrique, located at 24 4069 Telegraph Ave, Oakland, California. Id. ¶ 8. Defendant Roxanne Clement-Rorick, in 25 individual and representative capacity as Trustee of The Rorick Trust dated October 19, 1995, 26 owns the property. Id. ¶ 3. On the date of his visit, Garcia found the café did not have wheelchair 27 accessible paths of travel, the ramp that runs up to the entrance did not have a level landing, and 1 accessible for wheelchair users. Id. ¶¶ 10-12. Garcia filed this case on June 30, 2021, seeking 2 injunctive relief under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., 3 and statutory damages under the Unruh Civil Rights Act, Cal. Civ. Code §§ 51-53. Compl. ¶¶ 22- 4 32. 5 On August 27, 2021, Garcia requested an additional 90 days to complete service upon 6 Clement-Rorick. ECF No. 8. Garcia stated he had been unable to effectuate personal service due 7 to COVID-19 restrictions in the Northern District, but he had recently discovered new information 8 and anticipated that service could be completed shortly. The Court granted Garcia’s request and 9 extended the service deadline to November 26. ECF No. 9. However, as of December 1, there 10 had been no further docket activity, and the Court therefore ordered Garcia to file a status report 11 by December 8. ECF No. 10. In response, Garcia filed a “Service Attempts Status Report,” 12 which did not provide an updated status but merely attached exhibits showing service attempts 13 through November. ECF No. 12. Although Garcia did not request a further extension or other 14 type of relief, the Court extended the service deadline to January 6, 2022. ECF No. 13. 15 Garcia filed the present motion on December 30, 2021. He states his counsel searched 16 business and property records and found the following mailing addresses for Clement-Rorick: 17 • 2640 Silvercrest St., Pinole, Ca 94564-1141 18 • 1419 Oxford St., Berkeley, Ca 94709 19 Mot. at 2; Zaman Decl. ¶ 7, ECF No. 14-2. Counsel hired a process service company to serve 20 Clement-Rorick at these addresses, but it was unsuccessful. Zaman Decl. ¶¶ 7-8. Counsel also 21 sent the service company to the address of Clement-Rorick’s relative, Naruemon Rorick, at 121 22 Gary Cir., Vallejo, Ca 94591-8228, to inquire about her whereabouts, but “[t]he attempt to enquire 23 turned futile as the property showed no occupancy or movement.” Mot. at 3; Zaman Decl. ¶ 9. 24 Counsel also mailed notices of acknowledgements and receipts to all three addresses, but there has 25 been no response to date. Mot. at 3; Zaman Decl. ¶ 12. Garcia also states he attempted to serve 26 Clement-Rorick by email, Mot. at 4, but he did not provide the email address or a record of any 27 such attempt as part of his motion. Garcia now seeks to serve Clement-Rorick by publication in 1 III. LEGAL STANDARD 2 Service upon an individual defendant in a judicial district of the United States may be 3 effected pursuant to the state law where the district court is located or where service is made. Fed. 4 R. Civ. P. 4(e)(1). Under California law, service by publication is permissible when:

5 (a) A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending 6 that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: 7 (1) A cause of action exists against the party upon whom service is to 8 be made or he or she is a necessary or proper party to the action. 9 Cal. Civ. Proc. Code § 415.50(a). The key inquiry is whether a defendant cannot with “reasonable 10 diligence” be served by another available method. Felix v. Anderson, 2015 WL 545483, at *2 11 (N.D. Cal. Feb. 9, 2015). 12 To determine whether a plaintiff has exercised reasonable diligence, a court must examine 13 the affidavit to see whether the plaintiff “took those steps a reasonable person who truly desired to 14 give notice would have taken under the circumstances.” Donel, Inc. v. Badalian, 87 Cal. App. 3d 15 327, 333 (1978). Reasonable diligence “denotes a thorough, systematic investigation and inquiry 16 conducted in good faith by the party or his agent or attorney.” Watts v. Crawford, 10 Cal. 4th 743, 17 749 n.5 (1995) (citation omitted). Before allowing a plaintiff to resort to service by publication, 18 the courts must require him to show “exhaustive” attempts to locate the defendant. Id. (citations 19 omitted). 20 Because of due process concerns, service by publication should be allowed only “as a last 21 resort.” Donel, 87 Cal. App. 3d at 333. That a plaintiff has taken one or a few reasonable steps 22 does not necessarily mean that “all myriad of other avenues” have been properly exhausted to 23 warrant service by publication. Id. But a plaintiff will generally satisfy his burden through “[a] 24 number of honest attempts to learn defendant’s whereabouts or his address by inquiry of relatives, 25 friends, and acquaintances, or of his employer, and by investigation of appropriate city and 26 telephone directories, the voters’ register, and the real and personal property index in the 27 assessor’s office, near the defendant’s last known location[.] Kott v. Superior Ct., 45 Cal. App. 1 searched before resorting to service by publication.” Id. 2 IV. DISCUSSION 3 The Court finds Garcia has failed to establish reasonable diligence in his attempts to serve 4 || Clement-Rorick. First, Garcia states Clement-Rorick owns Café Eritrea D’ Afrique, yet there is no 5 indication he attempted service there, personal or otherwise. According to the café’s website, it is 6 || open for business. See https://cafeeritreadafrique.com/. If Clement-Rorick is the owner of the 7 || café, it seems reasonable to attempt service there and learn of her whereabouts by asking 8 employees and others present. Second, while Garcia states he attempted service by email, he did 9 || not provide the email address or a record of any such attempt. While service by email may help 10 Garcia establish reasonable diligence, the Court is unable to determine whether email notice was 11 provided based on the record before it. Finally, it is generally recognized that service by 12 || publication rarely results in actual notice. Watts, 10 Cal. 4th at 749 n.5. Thus, the Court will not 5 13 permit service by such means unless Garcia satisfies his burden of showing exhaustive attempts to 14 || locate and serve Clement-Rorick. /d. V. CONCLUSION 16 For the reasons stated above, the Court DENIES Garcia’s motion without prejudice. As 3 17 this case has been pending for over five months, and the Court has already extended the service 18 deadline twice, the Court shall extend the service deadline (and file proof of service) one final 19 time to February 14, 2022. 20 IT IS SO ORDERED. 21 22 || Dated: January 14, 2022 23 AY \- | THOMAS S. HIXSON United States Magistrate Judge 25 26 27 28