1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 DAVID ROBINSON, Case No. 24-cv-06247-TSH
12 Plaintiff, AMENDED ORDER GRANTING 13 v. RENEWED MOTION FOR ALTERNATIVE SERVICE 14 IZTACCUAUHTLI GONZALEZ, et al., Re: Dkt. No. 16 15 Defendants.
16 17 I. INTRODUCTION 18 Following denial without prejudice of his original motion, Plaintiff David Robinson has 19 filed a renewed motion to serve Defendant Iztaccuauhtli Gonzalez dba Farmers Insurance by 20 publication. ECF No. 16. The Court finds this matter suitable for disposition without oral 21 argument. See Civ. L.R. 7-1(b). Having considered Plaintiff’s request, the Court GRANTS his 22 motion for the following reasons.1 23 24
25 1 On February 7, 2025, the Court granted Plaintiff’s renewed application for an order authorizing service of the summons in this action on Defendant by publication in the East Bay Times. ECF 26 No. 18. However, after Plaintiff contacted the East Bay Times to arrange for publication of the summons, a representative of the newspaper advised that it would need to seek an amended order 27 for publication specifying that the now-current name of the publication is “East County 1 II. BACKGROUND 2 Plaintiff is a California resident with physical disabilities who requires a wheelchair for 3 mobility. Compl. ¶¶ 3, 10, 12, ECF No. 1. On May 21, 2024, he went to Farmers Insurance, 4 located at 3018 Railroad Avenue in Pittsburg, California, to inquire about insurance for his home 5 and possibly his cars. Id. ¶¶ 1, 17. Defendants Iztaccuauhtli Gonzalez, Jill Stern-Henderson, and 6 Steven H. Henderson owned, managed, operated, and/or were otherwise responsible for the 7 property. Id. ¶¶ 4-6. On the date of his visit, Plaintiff found the property’s accessible parking 8 spaces lacked required signage and pavement markings and lacked a van-accessible access aisle. 9 Id. ¶ 18. Plaintiff also alleges the asphalt underneath the parking is severely damaged and 10 cracked, and he believes the parking spaces are excessively sloped. Id. 11 Plaintiff filed this case on September 4, 2024, seeking injunctive relief under the 12 Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq., and statutory damages under the 13 Unruh Civil Rights Act, Cal. Civ. Code §§ 51-53. Compl. ¶¶ 26-55. Three months later, as there 14 was no indication Defendants had been served, the Court ordered Plaintiff to file a status report. 15 ECF No. 8. 16 On December 17 Plaintiff responded that he had been unable to effectuate service of 17 process on any of three defendants. ECF No. 9. The first round of service resulted in non-service 18 reports for all three defendants, with the process server reporting that the business locations for the 19 respective defendants were closed and appeared to be non-operational. Id. After the first round of 20 service failed, Plaintiff sent all three defendants service waivers by mail on September 16, 2024, 21 but no defendant returned a service waiver. Id. None of the packages were returned by the post 22 office as undeliverable. Id. Plaintiff subsequently located a home address for Gonzalez in 23 Pittsburg, California, to which he dispatched another process server starting on October 30, but 24 after five attempts, the process server was unable to serve Gonzalez at this address. Id. Plaintiff 25 stated he would need to consult with his process server to determine whether there are any other 26 addresses at which the defendants could be served, or whether to request authorization to 27 effectuate service by alternative means. Id. On December 17 the Court directed Plaintiff to file an 1 On January 15, 2025, Plaintiff filed his initial motion seeking leave to serve Gonzalez 2 through publication of summons in the East Bay Times. ECF No. 11. The Court denied the 3 motion without prejudice for failure to provide an affidavit of facts evincing a cause of action 4 against Gonzalez. ECF No. 15. On February 4, 2025, Plaintiff filed his renewed motion. 5 III. LEGAL STANDARD 6 Service upon an individual defendant in a judicial district of the United States may be 7 effected pursuant to the state law where the district court is located or where service is made. Fed. 8 R. Civ. P. 4(e)(1). Under California law, service by publication is permissible when:
9 (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 10 that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: 11 (1) A cause of action exists against the party upon whom service is to 12 be made or he or she is a necessary or proper party to the action. 13 Cal. Civ. Proc. Code § 415.50(a). The key inquiry is whether a defendant cannot with “reasonable 14 diligence” be served by another available method. Felix v. Anderson, 2015 WL 545483, at *2 15 (N.D. Cal. Feb. 9, 2015). 16 To determine whether a plaintiff has exercised reasonable diligence, a court must examine 17 the affidavit to see whether the plaintiff “took those steps a reasonable person who truly desired to 18 give notice would have taken under the circumstances.” Donel, Inc. v. Badalian, 87 Cal. App. 3d 19 327, 333 (1978). Reasonable diligence “denotes a thorough, systematic investigation and inquiry 20 conducted in good faith by the party or his agent or attorney.” Watts v. Crawford, 10 Cal. 4th 743, 21 749 n.5 (1995) (citation omitted). 22 Because of due process concerns, service by publication should be allowed only “as a last 23 resort.” Donel, 87 Cal. App. 3d at 333. That a plaintiff has taken one or a few reasonable steps 24 does not necessarily mean that “all myriad of other avenues” have been properly exhausted to 25 warrant service by publication. Id. But a plaintiff will generally satisfy his burden through “[a] 26 number of honest attempts to learn defendant’s whereabouts or his address by inquiry of relatives, 27 friends, and acquaintances, or of his employer, and by investigation of appropriate city and 1 assessor’s office, near the defendant’s last known location[.] Kott v. Superior Ct., 45 Cal. App. 2 4th 1126, 1137 (1996). “These are likely sources of information, and consequently must be 3 searched before resorting to service by publication.” Id. 4 If a party can show reasonable diligence, they must also show that a “cause of action exists 5 against the party upon whom service is to be made or he or she is a necessary or proper party to 6 the action.” Cal. Civ. Proc. Code § 415.50(a)(1). The party must offer “independent evidentiary 7 support, in the form of a sworn statement of facts, for the existence of a cause of action against the 8 defendant.” Cummings v. Brantley Hale, 2016 WL 4762208, at *2 (N.D. Cal. Sept. 13, 2016) 9 (citing McNamara v. Sher, 2012 WL 760531, at *4 (S.D. Cal. Mar. 8, 2012)); see also Zhang v. 10 Tse, 2012 WL 3583036, at *3 (N.D. Cal. Aug. 20, 2012) (collecting cases). 11 IV. DISCUSSION 12 A. Reasonable Diligence 13 Although service by publication is a method of last resort, the Court is satisfied that 14 Plaintiff is unable to serve Gonzalez, despite reasonable diligence. Specifically, on September 9, 15 2024, Plaintiff’s counsel asked One Legal to serve each of the Defendants in this lawsuit. Morin 16 Decl. ¶ 2, ECF No. 16-2. One Legal attempted to serve Gonzalez at his business address, 3024 17 Railroad Avenue in Pittsburg, California, as well as at 3018 Railroad Avenue in Pittsburg, 18 California, but was unsuccessful after five attempts. Id. ¶ 3 & ECF No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 DAVID ROBINSON, Case No. 24-cv-06247-TSH
12 Plaintiff, AMENDED ORDER GRANTING 13 v. RENEWED MOTION FOR ALTERNATIVE SERVICE 14 IZTACCUAUHTLI GONZALEZ, et al., Re: Dkt. No. 16 15 Defendants.
16 17 I. INTRODUCTION 18 Following denial without prejudice of his original motion, Plaintiff David Robinson has 19 filed a renewed motion to serve Defendant Iztaccuauhtli Gonzalez dba Farmers Insurance by 20 publication. ECF No. 16. The Court finds this matter suitable for disposition without oral 21 argument. See Civ. L.R. 7-1(b). Having considered Plaintiff’s request, the Court GRANTS his 22 motion for the following reasons.1 23 24
25 1 On February 7, 2025, the Court granted Plaintiff’s renewed application for an order authorizing service of the summons in this action on Defendant by publication in the East Bay Times. ECF 26 No. 18. However, after Plaintiff contacted the East Bay Times to arrange for publication of the summons, a representative of the newspaper advised that it would need to seek an amended order 27 for publication specifying that the now-current name of the publication is “East County 1 II. BACKGROUND 2 Plaintiff is a California resident with physical disabilities who requires a wheelchair for 3 mobility. Compl. ¶¶ 3, 10, 12, ECF No. 1. On May 21, 2024, he went to Farmers Insurance, 4 located at 3018 Railroad Avenue in Pittsburg, California, to inquire about insurance for his home 5 and possibly his cars. Id. ¶¶ 1, 17. Defendants Iztaccuauhtli Gonzalez, Jill Stern-Henderson, and 6 Steven H. Henderson owned, managed, operated, and/or were otherwise responsible for the 7 property. Id. ¶¶ 4-6. On the date of his visit, Plaintiff found the property’s accessible parking 8 spaces lacked required signage and pavement markings and lacked a van-accessible access aisle. 9 Id. ¶ 18. Plaintiff also alleges the asphalt underneath the parking is severely damaged and 10 cracked, and he believes the parking spaces are excessively sloped. Id. 11 Plaintiff filed this case on September 4, 2024, seeking injunctive relief under the 12 Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq., and statutory damages under the 13 Unruh Civil Rights Act, Cal. Civ. Code §§ 51-53. Compl. ¶¶ 26-55. Three months later, as there 14 was no indication Defendants had been served, the Court ordered Plaintiff to file a status report. 15 ECF No. 8. 16 On December 17 Plaintiff responded that he had been unable to effectuate service of 17 process on any of three defendants. ECF No. 9. The first round of service resulted in non-service 18 reports for all three defendants, with the process server reporting that the business locations for the 19 respective defendants were closed and appeared to be non-operational. Id. After the first round of 20 service failed, Plaintiff sent all three defendants service waivers by mail on September 16, 2024, 21 but no defendant returned a service waiver. Id. None of the packages were returned by the post 22 office as undeliverable. Id. Plaintiff subsequently located a home address for Gonzalez in 23 Pittsburg, California, to which he dispatched another process server starting on October 30, but 24 after five attempts, the process server was unable to serve Gonzalez at this address. Id. Plaintiff 25 stated he would need to consult with his process server to determine whether there are any other 26 addresses at which the defendants could be served, or whether to request authorization to 27 effectuate service by alternative means. Id. On December 17 the Court directed Plaintiff to file an 1 On January 15, 2025, Plaintiff filed his initial motion seeking leave to serve Gonzalez 2 through publication of summons in the East Bay Times. ECF No. 11. The Court denied the 3 motion without prejudice for failure to provide an affidavit of facts evincing a cause of action 4 against Gonzalez. ECF No. 15. On February 4, 2025, Plaintiff filed his renewed motion. 5 III. LEGAL STANDARD 6 Service upon an individual defendant in a judicial district of the United States may be 7 effected pursuant to the state law where the district court is located or where service is made. Fed. 8 R. Civ. P. 4(e)(1). Under California law, service by publication is permissible when:
9 (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 10 that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: 11 (1) A cause of action exists against the party upon whom service is to 12 be made or he or she is a necessary or proper party to the action. 13 Cal. Civ. Proc. Code § 415.50(a). The key inquiry is whether a defendant cannot with “reasonable 14 diligence” be served by another available method. Felix v. Anderson, 2015 WL 545483, at *2 15 (N.D. Cal. Feb. 9, 2015). 16 To determine whether a plaintiff has exercised reasonable diligence, a court must examine 17 the affidavit to see whether the plaintiff “took those steps a reasonable person who truly desired to 18 give notice would have taken under the circumstances.” Donel, Inc. v. Badalian, 87 Cal. App. 3d 19 327, 333 (1978). Reasonable diligence “denotes a thorough, systematic investigation and inquiry 20 conducted in good faith by the party or his agent or attorney.” Watts v. Crawford, 10 Cal. 4th 743, 21 749 n.5 (1995) (citation omitted). 22 Because of due process concerns, service by publication should be allowed only “as a last 23 resort.” Donel, 87 Cal. App. 3d at 333. That a plaintiff has taken one or a few reasonable steps 24 does not necessarily mean that “all myriad of other avenues” have been properly exhausted to 25 warrant service by publication. Id. But a plaintiff will generally satisfy his burden through “[a] 26 number of honest attempts to learn defendant’s whereabouts or his address by inquiry of relatives, 27 friends, and acquaintances, or of his employer, and by investigation of appropriate city and 1 assessor’s office, near the defendant’s last known location[.] Kott v. Superior Ct., 45 Cal. App. 2 4th 1126, 1137 (1996). “These are likely sources of information, and consequently must be 3 searched before resorting to service by publication.” Id. 4 If a party can show reasonable diligence, they must also show that a “cause of action exists 5 against the party upon whom service is to be made or he or she is a necessary or proper party to 6 the action.” Cal. Civ. Proc. Code § 415.50(a)(1). The party must offer “independent evidentiary 7 support, in the form of a sworn statement of facts, for the existence of a cause of action against the 8 defendant.” Cummings v. Brantley Hale, 2016 WL 4762208, at *2 (N.D. Cal. Sept. 13, 2016) 9 (citing McNamara v. Sher, 2012 WL 760531, at *4 (S.D. Cal. Mar. 8, 2012)); see also Zhang v. 10 Tse, 2012 WL 3583036, at *3 (N.D. Cal. Aug. 20, 2012) (collecting cases). 11 IV. DISCUSSION 12 A. Reasonable Diligence 13 Although service by publication is a method of last resort, the Court is satisfied that 14 Plaintiff is unable to serve Gonzalez, despite reasonable diligence. Specifically, on September 9, 15 2024, Plaintiff’s counsel asked One Legal to serve each of the Defendants in this lawsuit. Morin 16 Decl. ¶ 2, ECF No. 16-2. One Legal attempted to serve Gonzalez at his business address, 3024 17 Railroad Avenue in Pittsburg, California, as well as at 3018 Railroad Avenue in Pittsburg, 18 California, but was unsuccessful after five attempts. Id. ¶ 3 & ECF No. 11-3 (Non Service 19 Report).2 On September 16, 2024, counsel mailed a package to Gonzalez at the 3024 Railroad 20 Avenue address that consisted of the summons, complaint, a postage prepaid return envelope, and 21 a completed “Notice of a Lawsuit and Request to Waive Service of a Summons” (form AO 398) 22 and two copies of “Waiver of the Service of Summons” (form AO 399). Morin Decl. ¶ 4. As of 23 the date of Plaintiff’s renewed motion, Gonzalez had not returned a signed service waiver, and the 24 United States Post Office had not returned the service waiver package as undeliverable. Id. ¶¶ 5-6. 25 After service was unsuccessful, counsel researched other possible addresses for Gonzalez 26 and located a residential address, 2139 Shadow Court in Pittsburg, California. Id. ¶ 7. Using a 27 1 title search program, counsel confirmed that Gonzalez’s name appears on the title to that home. 2 Id. On October 26 counsel dispatched One Hour Process Service to the Shadow Court address 3 with instructions to serve Gonzalez, but after five attempts, the process server was unable to serve 4 him. Id. ¶¶ 7-8 & Ex. 2 (Non Service Report). Counsel has been unable to find any other good 5 addresses for Gonzalez. Id. ¶ 9. 6 It appears Plaintiff is unable to serve Gonzalez by personal service or mail. While it is 7 conceivable that Plaintiff could effect service through continued efforts, “the standard requires 8 reasonable diligence, not exhaustive efforts to leave no stone unturned.” Cummings, 2016 WL 9 4762208, at *2. Under these circumstances, the Court finds Plaintiff has adequately taken ‘‘those 10 steps which a reasonable person who truly desired to give notice would have taken under the 11 circumstances.’’ Donel, 87 Cal. App. 3d at 333. 12 B. Cause of Action 13 Although Plaintiff submits a declaration by his counsel attesting to the efforts taken to 14 locate and serve Gonzalez, he must also offer ‘‘independent evidentiary support, in the form of a 15 sworn statement of facts, for the existence of a cause of action against the defendant.’’ Cummings, 16 2016 WL 4762208, at *3 (emphasis in original); see also Harris v. Cavasso, 68 Cal. App. 3d 723, 17 726 (1977) (The statute ‘‘on its face permits such showing to be made only by affidavit.”; setting 18 aside a judgment where service by publication had been based on facts presented in a verified 19 complaint rather than an affidavit). Plaintiff attests that upon arrival at the property, he found it 20 “did not provide any accessible parking spaces for individuals with disabilities,” without which he 21 “was unable to access the insurance office when I visited,” and “[t]he absence of accessible 22 parking at the Farmers Insurance has caused me distress, discomfort, frustration, annoyance, and 23 inconvenience.” Robinson Decl. ¶¶ 5-7, ECF No. 16-3. Plaintiff attests that he wishes “to return 24 to Farmers Insurance in the future due to its convenient location when I travel to the area to visit 25 family.” Id. ¶ 8. Plaintiff’s counsel further attests:
26 Before filing this lawsuit, I researched the ownership of the Farmers Insurance office located at the Property that is the subject of this 27 lawsuit to determine who would be appropriate defendants provided by my client of the business and accompanying signage. 1 After reviewing the foregoing information sources, I believe that Defendant is the owner and operator of the Farmers Insurance office 2 located at the Property. Using a title search program, I also believe that Defendant may have an ownership interest in the Property or an 3 adjacent parcel. 4 Morin Decl. ¶ 10. Based on this independent evidentiary support, the Court finds Plaintiff has 5 satisfied the requirements for service by publication. See Garcia v. Clement-Rorick, 2022 WL 6 1478532, at *3 (N.D. Cal. Apr. 19, 2022) (finding plaintiff satisfied requirements for service by 7 publication where he attested that defendant owned the real property at issue); Block v. Hernandez 8 Madrigal, 2021 WL 5991732, at *3 (N.D. Cal. Nov. 4, 2021) (same). 9 Accordingly, Plaintiff’s motion for leave to serve Gonzalez by publication is GRANTED. 10 C. Method of Service 11 As Plaintiff has satisfied the requirements of section 415.50, he is entitled to effectuate 12 service by publication “in a named newspaper, published in this state, that is most likely to give 13 actual notice to the party to be served.” Cal. Civ. Proc. Code. § 4150.50(b). Plaintiff states he 14 intends to publish summons in the East County Times/East Bay Times, which courts have found 15 to be a newspaper of general circulation that is most likely to give actual notice. See Garcia, 2022 16 WL 1478532, at *3; Macias v. Fasail, 2020 WL 2542028, at *4 (N.D. Cal. May 19, 2020); United 17 States v. Benson, 2019 WL 6612246, at *3 (N.D. Cal. Dec. 5, 2019). Therefore, the Court finds 18 the East County Times/East Bay Times is a proper newspaper for publication of service. 19 V. CONCLUSION 20 Based on the analysis above, Plaintiff’s motion for leave to serve Gonzalez by publication 21 is GRANTED as follows: 22 1. Good cause appearing, the Court extends the deadline for service of process on 23 Iztaccuauhtli Gonzalez to March 31, 2025. Fed. R. Civ. P. 4(m). 24 2. Publication shall be made in the East County Times/East Bay Times once per week for 25 four successive weeks. See Cal. Civ. Proc. Code § 415.50(c); Cal. Gov’t Code § 6064. 26 3. If Gonzalez’s address is ascertained prior to the expiration of the time prescribed for 27 publication of the summons, a copy of the summons and complaint and of this order for 1 Gonzalez in any other manner specified in the California Code of Civil Procedure sections 415.10 2 || through 415.30. 3 4. Plaintiff must mail a copy of this order, addressed to Iztaccuauhtli Gonzalez dba 4 || Farmers Insurance, to the following addresses: 5 e 3018 Railroad Avenue, Pittsburg, CA 94565 6 e 3024 Railroad Avenue, Pittsburg, CA 94565 7 e 2139 Shadow Court, Pittsburg, CA 94565-4648 8 After mailing, Plaintiff shall file proof of service. 9 IT IS SO ORDERED. 10 11 Dated: February 14, 2025 12 TAA. | THOMAS S. HIXSON 13 United States Magistrate Judge
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