United States District Court, N.D. California, San Jose Division
ORDER DENYING WITHOUT PREJUDICE MOTION FOR SERVICE BY
PUBLICATION Re: Dkt. No. 15
R. LLOYD United States Magistrate Judge
Scott Johnson sues under the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101, et seq., and related
state law. He alleges that architectural barriers at a
shopping center in San Jose, California owned by defendants
prevented him from enjoying full and equal access at the
facility. Johnson says that despite numerous service
attempts, he has been unable to serve any of the defendants.
He moves for an order permitting service by publication.
Civ. P. 4 permits service of process as allowed by
“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.”
Fed.R.Civ.P. 4(e)(1). In California, “[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,
” as relevant here, “[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.
Code Civ. Proc. § 415.50(a). “Other methods [of
service under California law] include personal service,
substitute service on a person found at the defendant's
usual residence or place of business and subsequent mailing,
service by mail with confirmation of receipt, and service by
mail on defendants outside the state of California.”
Cummings v. Hale, No. 15-cv-04723-JCS, 2016 WL
4762208, at *1 (N.D. Cal., Sept. 13, 2016); Cal. Code Civ.
Proc. §§ 415.10, 415.20, 415.30, 415.40.
of due process concerns, service by publication is allowed
only as a last resort:
[T]he least likely [method of service] to succeed in
notifying the defendant of an action against him is service
by publication. For this reason, a court must first be
convinced that the party to be served “cannot with
reasonable diligence be served in another manner specified in
[Article 3].” (§ 415.50.) “If a
defendant's address is ascertainable, a method of service
superior to publication must be employed, because
constitutional principles of due process of law, as well as
the authorizing statute, require that service by publication
be utilized only as a last resort.” (Watts v.
Crawford, [10 Cal.4th 743');">10 Cal.4th 743, 749 n.5 (1995)]). In this
context, “ ‘[t]he term “reasonable
diligence” . . . denotes a thorough, systematic
investigation and inquiry conducted in good faith by the
party or his agent or attorney. [Citations.] A number of
honest attempts to learn defendant's whereabouts or his
address by inquiry of relatives, . . . and by investigation
of appropriate city and telephone directories [voters'
registries and the assessor's office property indices
situated near the defendant's last known location]
generally are sufficient.'” (Ibid. quoting
Judicial Council com., § 415.50.)
Cummings, 2016 WL 4762208 at *2 (quoting Bd. of
Trustees of the Leland Stanford Junior Univ. v. Ham, 216
Cal.App.4th 330, 337-38 (2013)).
plaintiff's counsel avers that they searched business and
property records using the TransUnion/TLO XP search
engine's California Ultimate Weapon Database and
discovered two mailing addresses (one in San Jose, California
and one in Truckee, California) for defendant Melehan, as
well as one address for defendant Machado in Los Gatos,
California. (Dkt. 15-1, Allen Decl., ¶¶ 2-4).
Counsel further states that they hired process servers, who
reportedly attempted service on defendant Melehan eight times
at the San Jose address and six times at the address in
Truckee, without success. (Id. ¶ 5-7). Counsel
then sent a Notice of Acknowledgement and Receipt of Summons
and Complaint to Melehan at both addresses, but did not
receive a signed or returned notice. (Id.
¶¶ 8-9). Similarly, after seven unsuccessful
service attempts reportedly were made at defendant
Machado's Los Gatos address, counsel mailed a Notice of
Acknowledgement and Receipt of Summons and Complaint to
Machado, but did not receive a signed or returned notice.
(Id. ¶¶ 10-11, 13). The process server
reportedly made two further service attempts on Machado,
without success. (Id. ¶ 12).
motion for service by publication will be denied without
prejudice because the present application suffers from two
1. Counsel has submitted process server affidavits attesting
to service attempts, but the affidavits are not signed.
2. As discussed above, in addition to due diligence,
plaintiff must also demonstrate that “[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. Code Civ. Proc. § 415.50(a). In
order to meet this requirement, plaintiff “must offer
‘independent evidentiary support, in the form of a
sworn statement of facts, for the existence of a cause of
action against the defendant.'” Cummings,
2016 WL 4762208 at *2 (citing cases); Harris v.
Cavasso, 68 Cal.App.3d723, 726 (1977) (holding that
Section 415.50(a)(1) requires “an affidavit containing
a statement of some fact which would be legal evidence,
having some appreciable tendency to make the [the cause of
action] appear, for the Judge to act upon before he has any
jurisdiction to make the order” authorizing service by
publication). Here, plaintiff has submitted his counsel's
declaration attesting to the efforts made to locate and serve
the defendants, but otherwise relies solely on the
allegations of his complaint. That is not sufficient. See
Cummings, 2016 WL 4762208 at *3 (denying an application
for service by publication where plaintiff submitted her
counsel's disclosure statement that did not purport to be
an affidavit, was not sworn, and did not demonstrate
counsel's personal knowledge of the facts at issue).
plaintiff chooses to renew his motion for service by
publication, he must file his ...