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Castillo-Antonio v. Azurdia

United States District Court, Northern District of California

December 18, 2014



DONNA M. RYU United States Magistrate Judge

Before the court is Plaintiff Jose Daniel Castillo-Antonio's second ex parte motion for service by publication on Defendant Ka Chan. [Docket No. 24.] The court finds that the motion is appropriate for resolution without oral argument pursuant to Civil L.R. 7-l(b). For the reasons stated below, the motion is denied without prejudice.


A. Factual Allegations

Plaintiff alleges that he is a physically handicapped person. Compl. [Docket No. 1] at ¶ 6. Defendant Eugenia Azurdia dba El Cerrito Insurance Services is the owner and operator of El Cerrito Insurance Services, an insurance business located at 10891 San Pablo Avenue in El Cerrito, California. Id. at 7. Chan is also alleged to be the "owner[], operator[], possessor[], builder[], and keeper[]" of the insurance business.[1] Id. at 8. Plaintiff alleges that on October 9, 2013, he visited the insurance business for the purpose of shopping for insurance, but encountered architectural barriers that interfered with his access to the business. Id. at ¶¶ 3-5, 12.

On December 10, 2013, Plaintiff filed a complaint against Defendants Azurdia and Chan as well as unnamed Doe defendants, bringing causes of action for (1) violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., (2) violation of California Health and Safety Code § 19955 et seq., (3) violation of California Civil Code §§ 54, 54.1 and 54.3, and (4) violation of California Unruh Civil Rights Act, California Civil Code §§ 51, 51.5. Compl. at ¶ 6-20.

Default has been entered as to Azurdia. [Docket No. 9.]

B. First Motion for Service by Publication

On July 31, 2014, Plaintiff filed his first motion for service by publication. [Docket No. 16.] The court denied this motion because (1) Plaintiffs affidavit was insufficient and (2) did "not demonstrate that Plaintiff 'took those steps which a reasonable person who truly desired to give notice would have taken under the circumstances' would have taken, which is what is required under the 'reasonable diligence' requirement of Section 415.50." Order [Docket No. 18] at 3-4 (citation omitted). Plaintiff now moves again to serve Chan by publication after additional unsuccessful attempts to locate and serve him by other means.


A. Legal Standards

Federal Rule of Civil Procedure 4(e)(1) allows for service "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Under California law, "[a] summons may be served by publication if upon affidavit it appears to the satisfaction of the court. . . that the party to be served cannot with reasonable diligence be served in another manner and ... (1) [a] cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action." Cal. Civ. Proc. Code § 415.50(a).

"Because of due process concerns, service by publication must be allowed 'only as a last resort.'" Duarte v. Freeland, No. C-05-2780 EMC, 2008 WL 683427 at *1 (N.D. Cal. Mar. 7, 2008) (quoting Watts v. Crawford, 10 Cal.4th 743, 749 n. 5 (1995)). The "reasonable diligence" requirement of Section 415.50 "denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney." Kott v. Superior Court, 45 Cal.App.4th 1126, 1137 (1996) (citations omitted). "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 n. 5 (citation omitted). The fact that a plaintiff has taken one or a few reasonable steps does not necessarily warrant service by publication; instead, the plaintiff must first "exhaust the myriad of other avenues." Donel, Inc. v. Badalian, 87 Cal.App.3d 327, 333 (1978) (the single act of searching telephone directories did not constitute reasonable diligence in attempting to locate defendant so as to justify service by publication). "A number of honest attempts to learn defendant's 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 assessor's office, near the defendant's last known location, are generally sufficient. These are likely sources of information, and consequently must be searched before resorting to service by publication." Kott, 45 Cal.App.4th at 1137 (citations omitted).

The determination of reasonable diligence is fact and case specific. Id. at 1137-38 ("[T]he showing of diligence in a given case must rest on its own facts and no single formula nor mode of search can be said to constitute ...

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