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Integon Preferred Insurance Co. v. Camacho

United States District Court, E.D. California

March 23, 2017

INTEGON PREFERRED INSURANCE COMPANY, Plaintiff,
v.
ISABELLA ALVAREZ CAMACHO, et al., Defendants.

          ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION FOR SERVICE BY PUBLICATION WITHOUT PREJUDICE (ECF NO. 39)

         I.

         BACKGROUND

         This action was filed on October 5, 2016. On March 8, 2017, an order issued requiring Plaintiff to file a status report addressing service on the defendants in this action due to the scheduling conference set for March 21, 2017. Plaintiff filed a reply on March 9, 2017, stating that they were still attempting to locate several of the defendants in this action. On March 10, 2017, an order issued extending the time for service of the complaint by forty-five days. On March 13, 2017, Plaintiff filed a second amended complaint. On March 22, 2017, Plaintiff filed an ex parte application for service by publication.

         II.

         LEGAL STANDARD

         Rule 4 of the Federal Rules of Civil Procedure provides that proper service can be made by “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.” Fed.R.Civ.P. 4(e)(1). Therefore, California's statute for service by publication will govern whether such service is proper in this action.

         California Code of Civil Procedure 415.50(a)(1) provides that “[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 either: (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.”

         Service by publication is appropriate only where after reasonable diligence, the defendant's whereabouts and his dwelling place or usual place of abode cannot be ascertained. Watts v. Crawford, 10 Cal.4th 743, 749 n.5 (1995). However, service by publication is a “last resort, ” so the courts require a plaintiff “to show exhaustive attempts to locate the defendant.” Watts, 10 Cal.4th at 749 n.5. “Reasonable diligence” in attempting to serve by other methods connotes:

[A] thorough, systematic investigation and inquiry conducted in good faith . . . . A number of honest attempts to learn defendant's whereabouts or address by inquiry of relatives, friends, and acquaintances, or of an 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. However, the showing of diligence in a given case must rest on its own facts and neither single formula nor mode of search can be said to constitute due diligence in every case.

Kott v. Superior Court, 45 Cal.App.4th 1126, 1137-38 (1996) (internal citations and quotations omitted).

         III.

         DISCUSSION

         Plaintiff seeks to serve Defendants Enrique Franco, Victor Cati individually and as representative of the Estate of Maria Candelaria Silva-Perez, Jessica Bolanos, Veronica Acevedo Cisneros, Ana Cristina Acevedo Cisneros, and Anna Erica Acevedo Cisneros by publication in this action. For the reasons discussed below, the Court shall deny Plaintiff's request without prejudice.

         A. Plaintiff Has Not Established the Existence of a Valid Cause of Action ...


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