Malachowski v. Doheny

• Court: District Court, N.D. California
• Decided: November 30, 2021
• Docket: 3:21-cv-05751
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 MARK MALACHOWSKI, Case No. 21-cv-05751-VKD

9 Plaintiff, ORDER DENYING EX PARTE 10 v. APPLICATION FOR ORDER FOR SERVICE BY PUBLICATION OF 11 ROMONA A. DOHENY, SUMMONS 12 Defendant. Re: Dkt. No. 12

13 14 Before the Court is plaintiff Mark Malachowski’s ex parte application for an order that 15 service of summons in this action be made upon defendant Romona Doheny by publication of the 16 summons. Dkt. No. 12. In support of his application, Mr. Malachowski cites Federal Rule of 17 Civil Procedure 4(e)(1), which permits service by following the state law of the jurisdiction in 18 which the district court sits or where service is made. Dkt. No. 12 at 1. As service has not been 19 made in any state, the Court interprets Mr. Malachowski’s request in accordance with the state law 20 of California. The relevant California statute is California Code of Civil Procedure § 415.50, 21 which provides, in relevant part: 22 (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 23 that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: 24 (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 25 action. 26 (2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of 27 the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property. 1 The Court denies the application for two reasons. First, Mr. Malachowski’s supporting 2 declaration does not demonstrate that he has exercised reasonable diligence in attempting to locate 3 Ms. Doheny. In California, reasonable diligence requires: “A number of honest attempts to learn 4 defendant's whereabouts or his address by inquiry of relatives, friends, and acquaintances, or of his 5 employer, and by investigation of appropriate city and telephone directories, the voters' register, 6 and the real and personal property index in the assessor's office, near the defendant's last known 7 location, are generally sufficient. These are likely sources of information, and consequently must 8 be searched before resorting to service by publication.” Kott v. Superior Ct., 45 Cal. App. 4th 9 1126, 1137 (1996) (emphasis added).1 Mr. Malachowski provides no information demonstrating 10 the required investigation. This is particularly problematic given that Mr. Malachowski 11 apparently has information suggesting that Ms. Doheny currently resides in Connecticut. See Dkt. 12 No. 12-1 ¶¶ 7–12; Dkt. No. 12-1, Ex. C. The record before the Court does not reflect any attempt 13 by Mr. Malachowski, honest or otherwise, to learn Ms. Doheny’s address in Connecticut or to 14 serve her in that state. See Dkt. No. 12-1 ¶¶ 7–12; Dkt. No. 12-1, Ex. D. 15 Second, “[s]ection 415.50(a)(1) requires that the plaintiff provide independent evidentiary 16 support, in the form of a sworn statement of facts, for the existence of a cause of action against 17 each defendant whom service by publication is requested.” Rose v. Seamless Fin. Corp. Inc., No. 18 11CV240 AJB KSC, 2013 WL 1285515, at *3 (S.D. Cal. Mar. 26, 2013) (citing Harris v. 19 Cavasso, 68 Cal. App. 3d 723, 726 (Ct. App. 1977)). “[T]he verification of the complaint by 20 plaintiffs’ counsel on his information and belief is no substitute for the sworn statement of facts 21 which section 415.50 requires of the affiant.” Harris, 68 Cal. App. 3d at 726. “[A]n affidavit in 22 support of a request for service by publication ‘must state facts based on knowledge and not on 23 mere hearsay.’” Indian Hills Holdings, LLC v. Frye, 337 F.R.D. 293, 304 (S.D. Cal. 2020) 24 (quoting 4 Witkin, Cal. Procedure (5th ed. 2019) Actions § 1037). While Mr. Malachowski is 25

26 1 The current version of Cal. C.C.P. § 415.50 provides that a court “may not require that a search be conducted of public databases where access by a registered process server to residential 27 addresses is prohibited by law or by published policy of the agency providing the database, 1 acting as his own counsel in this action, he did not explicitly state that the allegations in his 2 || complaint were made based on his personal knowledge. See Dkt. No. 1. Nor did he state in his 3 supporting declaration any of the facts upon which a cause of action would lie against Ms. 4 || Doheny. See Dkt. No. 12-1 1-13. 5 Accordingly, the Court denies plaintiffs ex parte application for an order directing service 6 || of the summons by publication. Mr. Malachowski shall have until Wednesday, December 29, 7 2021 to serve Ms. Doheny. Failure to serve Ms. Doheny by December 29, 2021 may result in 8 dismissal of this action without prejudice. Fed. R. Civ. P. 4(m). 9 The Court continues the initial case management conference currently set for December 7, 10 || 2021 to Tuesday, February 15, 2022 at 1:30 p.m. 11 IT IS SO ORDERED. e 12 Dated: November 30, 2021

= ¢ 28 Vara ®, Qu □□□□□□□ VIRGINIA K. DEMARCHI IS United States Magistrate Judge 16

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