Spice Jazz LLC v. Youngevity International, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 SPICE JAZZ LLC, Case No. 19-cv-583-BAS-WVG 11 Plaintiff, ORDER DENYING MOTION TO 12 AUTHORIZE SERVICE BY PUBLICATION 13 v. [ECF No. 25] 14 YOUNGEVITY INTERNATIONAL, INC. et al., 15 Defendant. 16 17 18 On March 29, 2019, Plaintiff Spice Jazz LLC’s filed a complaint against 19 Defendants Youngevity International, Inc. and Bianca Reyne Djafar-Zade. (ECF No. 20 1.) Plaintiff then filed a first amended complaint against these two Defendants, 21 which Defendant Youngevity moved to dismiss. (ECF Nos. 10, 13.) Ms. Djafar- 22 Zade had not yet been served. The Court granted in part Youngevity’s motion to 23 dismiss, granted Plaintiff leave to amend, and noted that Plaintiff must serve all 24 named Defendants with its amended complaint. (ECF No. 19, at 19.) Plaintiff then 25 filed a second amended complaint, again serving only Youngevity. The Court 26 therefore ordered Plaintiff to show cause why Djafar-Zade had not been served. In 27 response, Plaintiff filed a motion seeking permission to serve Djafar-Zade by 1 The Court finds this Motion suitable for determination on the papers submitted 2 and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons stated below, 3 this Court DENIES Plaintiff’s Motion without prejudice. 4 I. LEGAL STANDARD 5 The Federal Rules of Civil Procedure allow service of process as permitted by 6 “state law for serving a summons in an action brought in courts of general jurisdiction 7 in the state where the district court is located or where service is made.” Fed. R. Civ. 8 P. 4(e)(1). California permits service by publication “if upon affidavit it appears to 9 the satisfaction of the court in which the action is pending that the party to be served 10 cannot with reasonable diligence be served in another manner specified in” Article 3 11 of the California Code of Civil Procedure. Cal. Civ. Proc. Code § 415.50(a). 12 In determining whether a plaintiff has exercised “reasonable diligence,” the 13 court examines the affidavit required by the statute to see whether the plaintiff “took 14 those steps a reasonable person who truly desired to give notice would have taken 15 under the circumstances.” Donel, Inc. v. Badalian, 87 Cal. App. 3d 327, 333 (1978). 16 The “reasonable diligence” requirement “denotes a thorough, systematic 17 investigation and inquiry conducted in good faith by the party or his agent or 18 attorney.” Kott v. Superior Court, 45 Cal. App. 4th 1126, 1137 (1996). “Before 19 allowing a plaintiff to resort to service by publication, the courts necessarily require 20 him to show exhaustive attempts to locate the defendant, for it is generally recognized 21 that service by publication rarely results in actual notice.” Watts v. Crawford, 10 22 Cal. 4th 743, 749 n.5 (1995). 23 II. ANALYSIS 24 A. Reasonable Diligence 25 Plaintiff’s counsel Mr. Zapendowski submits a declaration detailing the efforts 26 undertaken to serve Djafar-Zade. (“Decl.,” ECF No. 25-2.) Djafar-Zade resided at 27 an address in Vacaville, California while employed by Plaintiff, but counsel declares 1 flew to Australia, where Djafar-Zade’s mother is believed to reside, and met with 2 several witnesses. (Id. ¶ 4.) The witnesses told Zapendowski that Djafar-Zade’s last 3 known address was the Vacaville address. (Id.) Plaintiff also paid for a “Skip Trace” 4 service in an attempt to locate Djafar-Zade, but the service only turned up the same 5 Vacaville address. (Id. ¶5.) Zapendowski also looked through social media and all 6 available public records and could determine no location for Djafar-Zade except for 7 her past Vacaville address. (Id. ¶ 6.) 8 The Court finds that it does not have enough information to determine whether 9 Plaintiff has engaged in reasonable efforts to locate Djafar-Zade. With no further 10 detail, Zapendowski declares that Djafar-Zade “could not be located” at the Vacaville 11 address. It is unclear what this means—was service of process attempted at this 12 address? If so, how many times and when? Did counsel or the process server speak 13 to any neighbors to determine whether Djafar-Zade still lived at the Vacaville 14 address? Further, has counsel attempted to ask anyone (namely, Djafar-Zade’s 15 mother or former co-workers) where she currently lives? See Kott, 45 Cal. App. 4th 16 at 1137 (providing that a plaintiff could inquire of the defendant’s “relatives, friends, 17 and acquaintances” in an attempt to learn the defendant’s whereabouts). Without 18 this information, the Court cannot say that Plaintiff has exercised reasonable 19 diligence to locate Djafar-Zade. 20 B. Claims Against Djafar-Zade 21 In addition to a showing of diligence, California law requires a party seeking 22 service by publication to show that a “cause of action exists against the party upon 23 whom service is to be made.” Cal. Civ. Proc. Code § 415.50(a)(1). The proponent 24 must offer “independent evidentiary support, in the form of a sworn statement of 25 facts, for the existence of a cause of action against the defendant.” McNamara v. 26 Sher, No. 11-CV-1344-BEN WVG, 2012 WL 760531, at *4 (S.D. Cal. Mar. 8, 2012). 27 Plaintiff brings two causes of action against Djafar-Zade: fraud and breach of 1 ||spoke to Plaintiff’s former Chief Operations Officer, Kylie Burnett, who confirmed 2 the truth of Plaintiff’s allegations against Djafar-Zade. Burnett “was responsible for 3 ||monitoring the work of Plaintiff’s entire core of key employees and confirmed that 4 || Ms. Djafar-Zade was on the Company payroll due to her mother’s influence, but did 5 actually perform any work for the company or even go into the office.” (Decl. § 6 ||7.) Counsel includes no further details. This one statement in counsel’s declaration 7 |{1s not sufficient to show the existence of causes of action for fraud and breach of 8 || fiduciary duty against Djafar-Zade. 9 ||. CONCLUSION 10 For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE 11 || Plaintiff’s Motion. 12 IT IS SO ORDERED. 13 ||/DATED: January 6, 2020 /\ ) 14 Lin 4 (Aasharks 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28