1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 UNITED FINANCIAL CASUALTY Case No. 25-cv-07842-TSH COMPANY, 8 Plaintiff, ORDER DENYING WITHOUT 9 PREJUDICE MOTION FOR SERVICE v. BY PUBLICATION 10 HWH EXPRESS INC., et al., Re: Dkt. No. 21 11 Defendants. 12 13 I. INTRODUCTION 14 This is an insurance coverage lawsuit in which Plaintiff United Financial Casualty 15 Company (UFCC) seeks a judicial declaration that it has no obligation to provide coverage for or 16 defend against any claims arising out of a January 29, 2023 trucking accident in Oklahoma. 17 Pending before the Court is UFCC’s motion to permit service by publication on Defendants 18 Wenkang Yuan, Jun Lin, Huijuan Gao, and Zhengwei Song. ECF No. 21. No opposition has 19 been received. The Court finds this matter suitable for disposition without oral argument pursuant 20 to Civil Local Rule 7-1(b) and VACATES the March 12, 2026 hearing. For the reasons stated 21 below, the Court DENIES the motion WITHOUT PREJUDICE. 22 II. BACKGROUND 23 UFCC is an insurance company that insured Defendant HWH Express Inc. under 24 commercial auto policy no. 08320500-4, which was issued to meet the needs of HWH Express’s 25 interstate trucking business. First Am. Compl. ¶¶ 10-11, ECF No. 8. 26 UFCC alleges that on January 29, 2023, Defendant Zhengwei Song and a co-driver were 27 operating a power unit-trailer combo, which was owned, leased, rented, and/or operated by or on 1 driver lost control in Oklahoma and the combination rolled over. Id. Song, who was in the 2 sleeper berth, claims he sustained injuries as a result. Id. ¶¶ 25-26. On October 30, 2023, Song 3 filed a lawsuit in Alameda County Superior Court, case no. 23CV049209, against HWH Express, 4 Old Pal Transportation Inc., and individual Defendants Yuan, Lin and Gao, seeking to recover 5 more than $75,000 in damages. Id. ¶¶ 27-28. UFCC alleges that under 49 C.F.R. § 390.5, Song 6 was an employee of HWH, Old Pal Transportation Inc, Yuan, Lin, and/or Gao, and that all of 7 Song’s injury arose out of employment-related practices. Id. ¶¶ 29-30. 8 UFCC filed this case on September 15, 2025. ECF No. 1. It filed the operative First 9 Amended Complaint on October 3, 2025, naming HWH Express, Old Pal Transportation, Yuan, 10 Lin, Gao, and Song as defendants. UFCC alleges Song intends to collect on any judgment entered 11 in the state court case by, among other things, (1) filing suit against UFCC under California 12 Insurance Code section 11580(b)(2), which gives a judgment creditor a statutory right to enforce 13 certain liability insurance covering the judgment debtor insured(s), and/or (2) filing suit against 14 UFCC as an assignee of any rights the named defendants claim under the UFCC policy after 15 receiving such an assignment in return for agreeing to seek enforcement of the judgment only as 16 against UFCC. First Am. Compl. ¶ 31. UFCC contends an actual controversy exists and seeks 17 declarations that it owes no duty to indemnify or defend the defendants. 18 After UFCC served HWH Express and Old Pal Transportation, neither responded, so 19 UFCC filed default requests with the Clerk of Court. ECF Nos. 12, 14, 17. The Clerk entered 20 HWH Express’s default on December 1, 2025, ECF No. 18, but has not yet acted on the request as 21 to Old Pal Transportation. 22 UFCC states it first attempted to have the individual defendants served at addresses 23 obtained through the insurance claims process or through their known attorneys of record in the 24 state court injury lawsuit. Howe Decl. ¶¶ 3–5, ECF No. 21-2. As to Defendants Yuan and Lin, 25 Plaintiff had a last known address on Pepper Street in Castro Valley, California. Id. ¶ 3. 26 Plaintiff’s counsel hired a process server, First Legal, to effect service on both defendants at the 27 Pepper Street address, but neither could be served there. Id. & Exs. 1-2. 1 Oakland, California, but it was unable to complete service there. Id. ¶ 4 & Ex. 3. Plaintiff also 2 states that an individual at the premises told the process server it was unknown if Gao was actually 3 located at the address. Id. ¶ 4. 4 After these service attempts failed, UFCC hired an investigator, who conducted skip traces 5 to locate alternative addresses for Yuan, Lin, and Gao. Id. ¶ 6. The investigator located a single 6 address for all three defendants on Berdina Rd. in Castro Valley, California, but attempts to serve 7 the defendants at this address proved unsuccessful. Id. & Exs. 5-7. 8 As to Defendant Song, on October 9, 2025, Plaintiff’s counsel sent an email to his attorney 9 in the state court action, advising him of this case and that his client was a named defendant. Id. 10 Plaintiff’s counsel inquired whether Song, through counsel, would be willing to waive service, but 11 the attorney did not respond. Id. ¶ 5 & Ex. 4. On October 27 Plaintiff’s counsel followed up with 12 an email to his attorney. Id. ¶ 7 & Ex. 8. After he did not hear back, Plaintiff instructed its 13 process server to serve Song at the last known address it had for him on North Moore Avenue in 14 Monterey Park, California. Id. ¶ 7. Multiple attempts were made to serve Song at this address, 15 but all proved unsuccessful. Id. & Ex. 9. 16 UFCC filed the present motion on January 29, 2026, seeking leave to serve Defendants 17 Yuan, Lin, Gao by publication in the East County Times/East Bay Times, and to serve Defendant 18 Song in the Los Angeles Times. 19 III. LEGAL STANDARD 20 Service upon an individual defendant in a judicial district of the United States may be 21 effected pursuant to the state law where the district court is located or where service is made. Fed. 22 R. Civ. P. 4(e)(1). Under California law, service by publication is permissible when:
23 (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 24 that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: 25 (1) A cause of action exists against the party upon whom service is to 26 be made or he or she is a necessary or proper party to the action. 27 Cal. Civ. Proc. Code § 415.50(a). The key inquiry is whether a defendant cannot with “reasonable 1 (N.D. Cal. Feb. 9, 2015). 2 To determine whether a plaintiff has exercised reasonable diligence, a court must examine 3 the affidavit to see whether the plaintiff “took those steps which a reasonable person who truly 4 desired to give notice would have taken under the circumstances.” Donel, Inc. v. Badalian, 87 5 Cal. App. 3d 327, 333 (1978). Reasonable diligence “denotes a thorough, systematic investigation 6 and inquiry conducted in good faith by the party or his agent or attorney.” Watts v. Crawford, 10 7 Cal. 4th 743, 749 n.5 (1995) (citation omitted). 8 Because of due process concerns, service by publication should be allowed only “as a last 9 resort.” Donel, 87 Cal. App. 3d at 333. That a plaintiff has taken one or a few reasonable steps 10 does not necessarily mean that “all myriad of other avenues” have been properly exhausted to 11 warrant service by publication. Id. But a plaintiff will generally satisfy his burden through “[a] 12 number of honest attempts to learn defendant’s whereabouts or his address by inquiry of relatives, 13 friends, and acquaintances, or of his employer, and by investigation of appropriate city and 14 telephone directories, the voters’ register, and the real and personal property index in the 15 assessor’s office, near the defendant’s last known location[.] Kott v. Superior Ct., 45 Cal. App. 16 4th 1126, 1137 (1996).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 UNITED FINANCIAL CASUALTY Case No. 25-cv-07842-TSH COMPANY, 8 Plaintiff, ORDER DENYING WITHOUT 9 PREJUDICE MOTION FOR SERVICE v. BY PUBLICATION 10 HWH EXPRESS INC., et al., Re: Dkt. No. 21 11 Defendants. 12 13 I. INTRODUCTION 14 This is an insurance coverage lawsuit in which Plaintiff United Financial Casualty 15 Company (UFCC) seeks a judicial declaration that it has no obligation to provide coverage for or 16 defend against any claims arising out of a January 29, 2023 trucking accident in Oklahoma. 17 Pending before the Court is UFCC’s motion to permit service by publication on Defendants 18 Wenkang Yuan, Jun Lin, Huijuan Gao, and Zhengwei Song. ECF No. 21. No opposition has 19 been received. The Court finds this matter suitable for disposition without oral argument pursuant 20 to Civil Local Rule 7-1(b) and VACATES the March 12, 2026 hearing. For the reasons stated 21 below, the Court DENIES the motion WITHOUT PREJUDICE. 22 II. BACKGROUND 23 UFCC is an insurance company that insured Defendant HWH Express Inc. under 24 commercial auto policy no. 08320500-4, which was issued to meet the needs of HWH Express’s 25 interstate trucking business. First Am. Compl. ¶¶ 10-11, ECF No. 8. 26 UFCC alleges that on January 29, 2023, Defendant Zhengwei Song and a co-driver were 27 operating a power unit-trailer combo, which was owned, leased, rented, and/or operated by or on 1 driver lost control in Oklahoma and the combination rolled over. Id. Song, who was in the 2 sleeper berth, claims he sustained injuries as a result. Id. ¶¶ 25-26. On October 30, 2023, Song 3 filed a lawsuit in Alameda County Superior Court, case no. 23CV049209, against HWH Express, 4 Old Pal Transportation Inc., and individual Defendants Yuan, Lin and Gao, seeking to recover 5 more than $75,000 in damages. Id. ¶¶ 27-28. UFCC alleges that under 49 C.F.R. § 390.5, Song 6 was an employee of HWH, Old Pal Transportation Inc, Yuan, Lin, and/or Gao, and that all of 7 Song’s injury arose out of employment-related practices. Id. ¶¶ 29-30. 8 UFCC filed this case on September 15, 2025. ECF No. 1. It filed the operative First 9 Amended Complaint on October 3, 2025, naming HWH Express, Old Pal Transportation, Yuan, 10 Lin, Gao, and Song as defendants. UFCC alleges Song intends to collect on any judgment entered 11 in the state court case by, among other things, (1) filing suit against UFCC under California 12 Insurance Code section 11580(b)(2), which gives a judgment creditor a statutory right to enforce 13 certain liability insurance covering the judgment debtor insured(s), and/or (2) filing suit against 14 UFCC as an assignee of any rights the named defendants claim under the UFCC policy after 15 receiving such an assignment in return for agreeing to seek enforcement of the judgment only as 16 against UFCC. First Am. Compl. ¶ 31. UFCC contends an actual controversy exists and seeks 17 declarations that it owes no duty to indemnify or defend the defendants. 18 After UFCC served HWH Express and Old Pal Transportation, neither responded, so 19 UFCC filed default requests with the Clerk of Court. ECF Nos. 12, 14, 17. The Clerk entered 20 HWH Express’s default on December 1, 2025, ECF No. 18, but has not yet acted on the request as 21 to Old Pal Transportation. 22 UFCC states it first attempted to have the individual defendants served at addresses 23 obtained through the insurance claims process or through their known attorneys of record in the 24 state court injury lawsuit. Howe Decl. ¶¶ 3–5, ECF No. 21-2. As to Defendants Yuan and Lin, 25 Plaintiff had a last known address on Pepper Street in Castro Valley, California. Id. ¶ 3. 26 Plaintiff’s counsel hired a process server, First Legal, to effect service on both defendants at the 27 Pepper Street address, but neither could be served there. Id. & Exs. 1-2. 1 Oakland, California, but it was unable to complete service there. Id. ¶ 4 & Ex. 3. Plaintiff also 2 states that an individual at the premises told the process server it was unknown if Gao was actually 3 located at the address. Id. ¶ 4. 4 After these service attempts failed, UFCC hired an investigator, who conducted skip traces 5 to locate alternative addresses for Yuan, Lin, and Gao. Id. ¶ 6. The investigator located a single 6 address for all three defendants on Berdina Rd. in Castro Valley, California, but attempts to serve 7 the defendants at this address proved unsuccessful. Id. & Exs. 5-7. 8 As to Defendant Song, on October 9, 2025, Plaintiff’s counsel sent an email to his attorney 9 in the state court action, advising him of this case and that his client was a named defendant. Id. 10 Plaintiff’s counsel inquired whether Song, through counsel, would be willing to waive service, but 11 the attorney did not respond. Id. ¶ 5 & Ex. 4. On October 27 Plaintiff’s counsel followed up with 12 an email to his attorney. Id. ¶ 7 & Ex. 8. After he did not hear back, Plaintiff instructed its 13 process server to serve Song at the last known address it had for him on North Moore Avenue in 14 Monterey Park, California. Id. ¶ 7. Multiple attempts were made to serve Song at this address, 15 but all proved unsuccessful. Id. & Ex. 9. 16 UFCC filed the present motion on January 29, 2026, seeking leave to serve Defendants 17 Yuan, Lin, Gao by publication in the East County Times/East Bay Times, and to serve Defendant 18 Song in the Los Angeles Times. 19 III. LEGAL STANDARD 20 Service upon an individual defendant in a judicial district of the United States may be 21 effected pursuant to the state law where the district court is located or where service is made. Fed. 22 R. Civ. P. 4(e)(1). Under California law, service by publication is permissible when:
23 (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 24 that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: 25 (1) A cause of action exists against the party upon whom service is to 26 be made or he or she is a necessary or proper party to the action. 27 Cal. Civ. Proc. Code § 415.50(a). The key inquiry is whether a defendant cannot with “reasonable 1 (N.D. Cal. Feb. 9, 2015). 2 To determine whether a plaintiff has exercised reasonable diligence, a court must examine 3 the affidavit to see whether the plaintiff “took those steps which a reasonable person who truly 4 desired to give notice would have taken under the circumstances.” Donel, Inc. v. Badalian, 87 5 Cal. App. 3d 327, 333 (1978). Reasonable diligence “denotes a thorough, systematic investigation 6 and inquiry conducted in good faith by the party or his agent or attorney.” Watts v. Crawford, 10 7 Cal. 4th 743, 749 n.5 (1995) (citation omitted). 8 Because of due process concerns, service by publication should be allowed only “as a last 9 resort.” Donel, 87 Cal. App. 3d at 333. That a plaintiff has taken one or a few reasonable steps 10 does not necessarily mean that “all myriad of other avenues” have been properly exhausted to 11 warrant service by publication. Id. But a plaintiff will generally satisfy his burden through “[a] 12 number of honest attempts to learn defendant’s whereabouts or his address by inquiry of relatives, 13 friends, and acquaintances, or of his employer, and by investigation of appropriate city and 14 telephone directories, the voters’ register, and the real and personal property index in the 15 assessor’s office, near the defendant’s last known location[.] Kott v. Superior Ct., 45 Cal. App. 16 4th 1126, 1137 (1996). “These are likely sources of information, and consequently must be 17 searched before resorting to service by publication.” Id. 18 If a party can show reasonable diligence, they must also show that a “cause of action exists 19 against the party upon whom service is to be made or he or she is a necessary or proper party to 20 the action.” Cal. Civ. Proc. Code § 415.50(a)(1). The party must offer “independent evidentiary 21 support, in the form of a sworn statement of facts, for the existence of a cause of action against the 22 defendant.” Cummings v. Brantley Hale, 2016 WL 4762208, at *2 (N.D. Cal. Sept. 13, 2016) 23 (citing McNamara v. Sher, 2012 WL 760531, at *4 (S.D. Cal. Mar. 8, 2012)); see also Zhang v. 24 Tse, 2012 WL 3583036, at *3 (N.D. Cal. Aug. 20, 2012) (collecting cases). 25 IV. DISCUSSION 26 A. Reasonable Diligence 27 Although service by publication is a method of last resort, the Court is satisfied that UFCC 1 UFCC could effect service through continued efforts, “the standard requires reasonable diligence, 2 not exhaustive efforts to leave no stone unturned.” Cummings, 2016 WL 4762208, at *2. Under 3 these circumstances, the Court finds UFCC has adequately taken ‘‘those steps which a reasonable 4 person who truly desired to give notice would have taken under the circumstances.’’ Donel, 87 5 Cal. App. 3d at 333. 6 B. Cause of Action 7 Although UFCC has shown reasonable diligence, it has not met the requirement under 8 Civil Procedure Code section 415.50(a)(1) to show that a cause of action exists. In his declaration, 9 UFCC’s counsel states: “The amended pleading contains causes of action for declaratory relief 10 concerning plaintiff ’s obligations, if any, to defend and indemnify HWH Express Inc., Old Pal 11 Transportation Inc., Wenkang Yuan, Jun Lin, and Huijuan Gao under an insurance policy plaintiff 12 issued to HWH Express Inc.” Howie Decl. ¶ 2. However, UFCC has not offered any 13 ‘‘independent evidentiary support, in the form of a sworn statement of facts, for the existence of a 14 cause of action against the defendant.’’ Cummings, 2016 WL 4762208, at *3 (emphasis in 15 original). “Under California law, service by publication is neither appropriate nor valid without 16 such an affidavit.” Id. (citing McNamara, 2012 WL 760531, at *4); see also Harris v. Cavasso, 17 68 Cal. App. 3d 723, 726 (1977) (The statute ‘‘on its face permits such showing to be made only 18 by affidavit.”; setting aside a judgment where service by publication had been based on facts 19 presented in a verified complaint rather than an affidavit); Robinson v. Gonzalez, 2025 WL 20 372105, at *3 (N.D. Cal. Feb. 3, 2025) (denying without prejudice motion for service by 21 publication where plaintiff submitted a declaration attesting to the efforts taken to locate and serve 22 the defendant but failed to include a sworn statement of facts for the existence of a cause of action) 23 (citing Cummings, 2016 WL 4762208, at *3). UFCC’s motion is therefore DENIED WITHOUT 24 PREJUDICE to a renewed motion properly supported by an affidavit. 25 V. CONCLUSION 26 Plaintiff’s motion for service by publication is DENIED WITHOUT PREJUDICE for 27 failure to provide an affidavit of facts evincing a cause of action. Plaintiff may file a renewed ] demonstrating diligence. 2 IT IS SO ORDERED. 3 4 || Dated: February 17, 2026 5 TAA. 14} THOMAS S. HIXSON 6 United States Magistrate Judge 7 8 9 10 11 q 12
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