Shaw v. Brazell ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CECIL EUGENE SHAW, Case No. 19-cv-08103-SVK 8 Plaintiff, ORDER DENYING MOTION FOR 9 v. SERVICE BY PUBLICATION 10 RICHARD L. BRAZELL, et al., Re: Dkt. Nos. 17, 17-1 11 Defendants. 12 Before the Court is Plaintiff Cecil Eugene Shaw’s motion for permission to serve Richard 13 L. Brazell and Joan K. Brazell (collectively, “Brazell Defendants”) by publication. Dkt. 17, 17-1. 14 Pursuant to Civil Local Rule 7-1(b), the Court deems this matter suitable for decision without oral 15 argument. After reviewing the motion and the relevant law, the Court DENIES WITHOUT 16 PREJUDICE Plaintiff’s motion to permit service by publication. 17 I. BACKGROUND 18 On December 11, 2019, Plaintiff filed the instant complaint alleging violations of the 19 Americans with Disabilities Act (“ADA”) and the California Unruh Civil Rights Act against RJC 20 Spirits, Inc. and the Brazell Defendants. Dkt. 1. On December 12, 2019, the Court issued a 21 summons to all Defendants. Dkt. 6. Defendant RJC Spirits, Inc. was served on January 5, 2020 22 (Dkt. 9) and on February 6, 2020, it filed an answer (Dkt. 10). On February 10, 2020, Plaintiff 23 filed a motion requesting a sixty-day extension to complete service on the Brazell Defendants, 24 representing that “due to the discovery of new information, Plaintiff anticipates that service upon 25 Defendants can be completed within shortly (sic).” Dkt. 11 at 2. The Court granted a thirty-day 26 extension to March 12, 2020. Dkt. 15. On March 12, 2020, Plaintiff filed the instant motion. 27 Dkts. 17, 17-1. 1 II. APPLICABLE LAW 2 In federal court, service of a complaint is governed by Rule 4 of the Federal Rules of Civil 3 Procedure. Rule 4(e)(1) permits service by “following state law for serving a summons in an 4 action brought in courts of general jurisdiction in the state where the district court is located or 5 where service is made.” Fed. R. Civ. P. 4(e)(1). California Code of Civil Procedure § 415.50 provides that “[a] summons may be served by publication if upon affidavit it appears to the 6 satisfaction of the court in which the action is pending that the party to be served cannot with 7 reasonable diligence be served in another manner specified in this article and that . . . [a] cause of 8 action exists against the party upon whom service is to be made.” Cal. Code Civ. P. § 415.50. 9 Service by publication should be allowed only “as a last resort.” Donel, Inc. v. Badalian, 87 Cal. 10 App. 3d 327, 333 (1978). 11 III. DISCUSSION 12 Under this Court’s General Order governing ADA access litigation (“General Order 13 (“G.O.”) 56”), a Plaintiff must complete service on all defendants “promptly” and in accordance 14 with Federal Rule of Civil Procedure 4(m). G.O. 56 ¶ 1. In his motion to permit service by 15 publication, Plaintiff invokes California law governing service of a summons and complaint. 16 Dkt. 17-1 at 4-5. California permits service by publication if two factors are met: (1) if upon 17 affidavit, it appears that the party to be served cannot with reasonable diligence be served in 18 another manner; and (2) that a cause of action exists against the party upon whom service is to be 19 made. Cal. Code Civ. P. § 415.50(a). If service by publication is appropriate, the order permitting 20 publication must meet certain requirements, including that “[t]he court shall order the summons to 21 be published in a named newspaper, published in this state, that is most likely to give actual notice 22 to the party to be served.” Cal. Code Civ. P. § 415.50(b). 23 “In determining whether a plaintiff has exercised ‘reasonable diligence,’ the [C]ourt 24 examines the affidavit to see whether the plaintiff ‘took those steps a reasonable person who truly 25 desired to give notice would have taken under the circumstances.’” Hernandez v. Srija, Inc., No. 26 19-cv-01813-LB, 2019 WL 4417589, at * 2 (N.D. Cal. Sept. 16, 2019) (quoting Donel, 87 Cal. 27 App. 3d at 333). “The ‘reasonable diligence’ requirement ‘denotes a thorough, systematic 1 investigation and inquiry conducted in good faith by the party or his agent or attorney.’” 2 Hernandez, 2019 WL 4417589, at *2 (quoting Kott v. Super. Ct., 45 Cal. App. 4th 1126, 1137 3 (1996)). Thus, “[b]efore allowing a plaintiff to resort to service by publication, the courts 4 necessarily require him to show exhaustive attempts to locate the defendant, for it is generally 5 recognized that service by publication rarely results in actual notice.” Hernandez, 2019 WL 6 4417589, at *2 (quoting Watts v. Crawford, 10 Cal. 4th 743, 749 n.5 (1995)). 7 Here, Plaintiff has failed to demonstrate that the Brazell Defendants “cannot with 8 reasonable diligence be served in another manner,” as required by § 415.50(a), because Plaintiff’s 9 attempts at service have not been exhaustive. Plaintiff’s counsel attests that his office used the 10 TransUnion/TLO XP search engine and the Lawyer’s Title property database search engine to 11 locate addresses for the Brazell Defendants. Dkt. 17-2 ¶ 5-6. This search revealed six mailing 12 addresses for the Brazell Defendants: 2325 or 2327 El Camino Real, Santa Clara, CA 95050; 2715 13 Bayside Walk, San Diego, CA 92109; 1223 Lanny Ln, Olympic Valley, CA 96146; P.O. Box 14 926, Los Gatos, CA 95031; and 18265 Montevina Rd, Los Gatos, CA 95033. Id. A process 15 server hired by Plaintiff made seven attempts, over a period of approximately two weeks in 16 December 2019 and January 2020, to serve the Brazell Defendants at the address on Montevina 17 Road only. Dkt. 17-2 ¶ 8; Dkt. 17-4. On January 20, 2020, an office assistant mailed Notices of 18 Acknowledgment to “Defendant Palm 13” at the addresses listed above.1 Dkt. 17-2 ¶ 9; Dkt. 17-5; 19 Dkt. 17-6 ¶ 2. On February 3, 2020, an office assistant called seven phone numbers, four of which 20 were disconnected. Dkt. 17-2 ¶ 11; Dkt. 17-6 ¶ 3. The office assistant left voicemails at the 21 remaining three numbers. Dkt. 17-6 ¶ 3. On February 20, 2020, Plaintiff’s counsel emailed the 22 Brazell Defendants’ attorney asking if he would accept service. Dkt. 17-2 ¶ 12; Dkt. 17-2 at 2. 23 Despite Plaintiff’s attempts to serve the Brazell Defendants, it is not clear that he has 24 exhausted the myriad of other avenues available for locating the Brazell Defendants. 25 Additionally, in the time since the Court granted Plaintiff’s request for an extension of time to 26 serve the Brazell Defendants, Plaintiff has only emailed the Brazell Defendants’ attorney once. 27 1 Dkt. 17-2 4] 12; Dkt. 17-7 at 2. No other efforts to complete service have been undertaken, and 2 || Plaintiff has not demonstrated any other attempts to identify other locations where the Brazell 3 Defendants may be found. Plaintiff may wish to consider if there are other avenues by which he 4 || may be able to serve the Brazell Defendants, including contacting the Brazell Defendants’ 5 relatives, friends, or neighbors; emailing the Brazell Defendants and/or their attorney; attempting 6 || to locate the Brazell Defendants at the property in question in this lawsuit; and contacting co- 7 || defendant RJC Spirits, Inc. for the Brazell Defendants’ contact information. See Lucero v. IRA 8 || Services, Inc., 18-cv-5395-LB, 2019 WL 2123576, at * 3 (N.D. Cal. May 15, 2019). 9 In addition to Plaintiff's failure to demonstrate reasonable diligence in attempting to locate 10 || the Brazell Defendants, Plaintiff has failed to submit facts showing that publication in “El 11 Observador” is “most likely to give actual notice to the party to be served,” as required under 12 California Code of Civil Procedure § 415.50. Neither Plaintiff’?s motion nor counsel’s affidavit 5 13 || mention “El Observador.” See Dkts. 17-1, 17-2. Only in Plaintiff's “Proposed Order” is “El 14 || Observador” mentioned, and Plaintiff's conclusory statement that “El Observador” is “a 3 15 newspaper of general circulation” is insufficient to show that the Brazell Defendants are likely to 16 || receive actual notice of this action by publication in that newspaper. Dkt. 17-3. IV. CONCLUSION 18 For the reasons set forth above, the Court DENIES Plaintiff's motion for permission to 19 serve the Brazell Defendants by publication. The Court does, however, grant Plaintiff a further 20 || extension to May 11, 2020 to either complete service on the Brazell Defendants to or renew his 21 motion with additional evidentiary support. 22 SO ORDERED. 23 Dated: March 25, 2020 24 Staion vem Hl — 6 SUSAN VAN KEULEN United States Magistrate Judge 27 28