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Board of Trustees v. Debruin Construction, Inc.

United States District Court, N.D. California

June 25, 2014

BOARD OF TRUSTEES, Plaintiff,
v.
DEBRUIN CONSTRUCTION, INC., et al., Defendants.

ORDER GRANTING EX PARTE APPLICATION FOR SERVICE OF FIRST AMENDED SUMMONS AND FIRST AMENDED COMPLAINT ON DEFENDANTS DEBRUIN CONSTRUCTION, INC. AND RICHARD DEBRUIN BY PUBLICATION Re: Dkt. No. 35

JOSEPH C. SPERO, Magistrate Judge.

I. INTRODUCTION

The Board of Trustees, in their capacities as Trustees of the Laborers Health and Welfare Trust Fund for Northern California; Laborers Vacation-Holiday Trust Fund for Northern California; Laborers Pension Trust Fund for Northern California; and Laborers Training and Retraining Trust Fund for Northern California ("Plaintiffs") filed an ex parte application to serve the summons and complaint on Debruin Construction, Inc. ("Debruin") by publication on December 16, 2013. See Dkt. No. 20. In accordance with the Courts order, Plaintiffs filed supplementary materials on January 9, 2013. See Dkt. No. 26. On January 23, 2014, the Court denied the ex parte application without prejudice. See Dkt. No. 28. On May 19, 2014, Plaintiffs filed a first amended complaint and first amended proposed summons. See Dkt. Nos. 32, 33. On May 20, 2014, Plaintiffs filed a second ex parte application for service of the first amended complaint and first amended proposed summons on Debruin and Richard Debruin ("R. Debruin") (together, "Defendants") by publication ("Application"). See Dkt. No. 35. For the reasons stated below, the Court GRANTS the Application.

II. BACKGROUND

Plaintiff seeks permission to serve Defendants by publication rather than by other means such as personal service. The Federal Rules of Civil Procedure provide that service upon an individual or business entity defendant may be effected in any judicial district of the United States pursuant to the law of the state in which the district court is located or in which service is effected. See Fed.R.Civ.P. 4(e)(1), (h)(1)(A). This Court is located in California and Plaintiffs seek to effect service upon Debruin and R. Debruin in this state. Service by publication is permissible under California law in certain circumstances:

(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 that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that...
(1) A cause of action exists against the party upon whom service is to be made or he or she is necessary or proper party to the action.

Cal. Code Civ. Proc. § 415.50. Accordingly, the key inquiry for the Court is whether Defendants "cannot with reasonable diligence be served in another manner" pursuant to California law. Id. Other manners of service include delivering process to the defendant or his agent personally (sections 415.10, 416.90), or at his dwelling house, usual place of abode, or usual place of business (section 415.20), or by means of ordinary first-class mail or airmail, or registered or certified airmail (sections 415.30, 415.40). See Cal. Code Civ. Proc. § 415.50, Cal. Judicial Council cmt. "These methods of service make service by publication unnecessary except where a defendants whereabouts and his dwelling house or usual place of abode, etc., cannot be ascertained with reasonable diligence, and where no person who may be served on his behalf can be located with reasonable diligence." Id.

To determine whether a plaintiff has exercised "reasonable diligence" for purposes of section 415.50(a), a court must examine the affidavit required by the statute to determine whether the plaintiff "took those steps a reasonable person who truly desired to give notice would have taken under the circumstances." Donel, Inc. v. Badalian, 87 Cal.App.3d 327, 333 (1978). "The term 2017reasonable diligence'... denotes a thorough systematic investigation and inquiry conducted in good faith by the party or his agent or attorney." Watts v. Crawford, 10 Cal.4th 743, 749 n.5 (1995). Because of due process concerns, service by publication must be allowed "only as a last resort." Donel, 87 Cal.App.3d at 332. The chosen method must be "reasonably certain to inform those affected... or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950).

"Before allowing a plaintiff to resort to service by publication, the courts necessarily require him to show exhaustive attempts to locate the defendant, for it is generally recognized that service by publication rarely results in actual notice." Watts, 10 Cal.4th at 749 (internal citations omitted). That a plaintiff has taken one or a few reasonable steps does not necessarily mean that "all myriad of other avenues" have been properly exhausted to warrant service by publication. Donel, 87 Cal.App.3d at 333. See also AF Holdings LLC v. Pecadeso, 3:12-CV-02404-SC JSC, 2013 WL 394190, at *1 (N.D. Cal. Jan. 30, 2013); Duarte v. Freeland, C-05-2780 EMC, 2008 WL 683427, at *2 (N.D. Cal. Mar. 7, 2008). "A number of honest attempts to learn defendants whereabouts or his address by inquiry of relatives, friends, and acquaintances, or of his employer, and by investigation of appropriate city and telephone directories, the voters' register, and the real and personal property index in the assessors office, near the defendants last known location, are generally sufficient. These are the likely sources of information, and consequently must be searched before resorting to service by publication." Cal. Civ. Proc. Code § 415.50, Cal. Judicial Council cmt.

III. FACTS

Plaintiffs have submitted Affidavits of Reasonable Diligence from Sherry Shada ("Shada") and Guy Robinson ("Robinson"), employees of First Legal Support Services who were retained to serve Debruin or its agent. See Decl. of Roberta D. Perkins in Supp. of Application ("Perkins Decl."), Ex. 3. Plaintiffs have also provided a declaration from Roberta D. Perkins ("Counsel"), an attorney for Plaintiffs, which describes the efforts taken to effectuate service on the Defendants. See Perkins Decl.

Counsel declares that, before the complaint was filed, Plaintiffs obtained information about Debruin from the California Secretary of State website. Id. ¶ 3. According to Counsel, the Secretary of State website listed Debruin as an active corporation at 209 West Charter Way in Stockton, California, and its agent for service as R. Debruin at 3708 McDougald Boulevard in Stockton, California, as of September 20, 2013. Id. ¶ 3, Ex. 1. Counsel states that she rechecked the website on April 29, 2014 and found that Debruin is now listed as having a suspended status and all other information is unchanged. Id. ¶ 3, Ex 1. Plaintiffs also confirmed that as of September 20, 2012, Debruin was a licensed contractor through a search of the Contractors State License Board ("CSLB") website, which listed Debruins business address as P.O. Box 1355, French Camp, California. Id. ¶ 4, Ex 2. The CSLB website listed R. Debruin as the managing officer, CEO, and president, and it listed Marilyn Ann Garn as an officer who had disassociated from the company on March 26, 2012. Id. ¶ 4, Ex 2. When Counsel checked the website again on April 29, 2014, it showed that Debruins license had expired on April 30, 2013 and had not been renewed. Id. ¶ 4, Ex 2. Counsel declares that the information obtained from the Secretary of State and CSLB and the summons and complaint were given to First Legal Support Services with the instructions to personally serve R. Debruin, as agent for service of Debruin, at either his home address or the corporations business address. Id. ¶ 5.

According to Shadas affidavit, she attempted service four times: (1) on October 29, 2012, Shada reported that there was "no answer at the door, no vehicles, only porch light was on, quiet house" at R. Debruins home address; (2) on October 30, 2012, Shada reported that there was "no answer at the door, some lights on, no vehicles" at the same home address, and that she "tried neighbors and also got no answer at the door;" (3) on November 2, 2012, Shada reported that there was "no answer at the door, lights on inside, no activity seen" at the same address; and ...


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