United States District Court, S.D. California
ESTATE OF TIMOTHY GENE SMITH, by his successor in interest, WYATT ALLEN GUNNER SMITH; SANDY LYNN SIMMONS; and WYATT ALLEN GUNNER SMITH, Plaintiffs,
CITY OF SAN DIEGO; SCOTT HOLSLAG; DAVID BRECHT; NATALIE ANN MACEY d/b/a MACEY BAIL BONDS, as an individual; LEGAL SERVICE BUREAU, INC. d/b/a GLOBAL FUGITIVE RECOVERY, a California domestic corporation; DAN ESCAMILLA, as an individual and on behalf of LEGAL SERVICE BUREAU, INC.; and ISMAEL SOTO, as an individual, Defendants.
WILLIAM Q. HAYES UNITED STATES DISTRICT COURT JUDGE.
matter before the Court is Plaintiffs' Ex Parte Motion
for Alternative Service of Summons as to Defendant Ismael
Soto. (ECF No. 189).
December 8, 2016, Plaintiffs initiated this action by filing a
Complaint. (ECF No. 1). Plaintiffs amended the Complaint on
December 29, 2016 (ECF No. 7), on March 9, 2018 (ECF No. 96),
and on March 1, 2019 (ECF No. 162). The March 1, 2019, Third
Amended Complaint added Ismael Soto as a named defendant and
is the operative complaint in this matter. On March 4, 2019,
summons were issued. (ECF No. 163).
3, 2019, Plaintiffs filed an Ex Parte Motion for Service of
Summons by Publication for Defendant Ismael Soto (the
“June 3rd Motion”). (ECF No. 179). On June II,
2019, the Court denied Plaintiffs' June 3rd Motion,
Plaintiffs have not included sufficient information regarding
Mr. Jaramillo's public records searches to demonstrate
that California Civil Procedure Code Section 415.50(a) has
been satisfied. The Court finds Plaintiffs have not satisfied
the high standard of diligence required for service by
(ECF No. 181 at 4-5). On July 3, 2019, Plaintiffs filed an Ex
Parte Motion for Extension of Time for Service of Process as
to Defendant Ismael Soto (the “July 3rd Motion”).
(ECF No. 186). On July 8, 2019, the Court granted
Plaintiffs' July 3rd Motion, ordering Plaintiffs to serve
Ismael Soto by September 2, 2019. (ECF No. 187).
August 30, 2019, Plaintiffs filed the Ex Parte Motion for
Alternative Service of Summons as to Defendant Ismael Soto
(the “August 30th Motion”). (ECF No. 189). In the
August 30th Motion, Plaintiffs request the Court permit
Plaintiffs to serve Ismael Soto in San Diego County by
publication in The San Diego Union-Tribune and in Riverside
County by publication in The Press-Enterprise. (ECF No. 189-1
4(e)(1) of the Federal Rules of Civil Procedure allows
service by any means permitted by the law of the state in
which the case is pending or the law of the state in which
the defendant resides. Fed.R.Civ.P. 4(e)(1). Under California
Code of Civil Procedure Section 415.50:
(a) A summons may be served by publication if upon affidavit
it appears . . . 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. (2) The
party to be served has or claims an interest in real or
personal property in this state that is subject to the
jurisdiction of the court or the relief demanded in the
action consists wholly or in part in excluding the party from
any interest in the property.
courts impose a high standard of diligence before approving
service by publication and strictly construe the statutory
provisions for service by publication. See Olvera v.
Olvera, 232 Cal.Rptr. 271, 277 (Ct. App. 1991)
(“When substituted or constructive service is
attempted, strict compliance with the letter and spirit of
the statutes is required.”). “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
v. Crawford, 896 P.2d 807, 811 n.5 (Cal. 1995).
“The term ‘reasonable diligence' . . .
denotes a thorough, systematic investigation and inquiry
conducted in good faith by the party or his agent or
attorney.” Kott v. Superior Court, 53
Cal.Rptr.2d 215, 221 (Ct. App. 1996). Because of due process
concerns, service by publication is permissible “only
as a last resort.” Donel, Inc. v. Badalian,
150 Cal.Rptr. 855, 858 (Ct. App. 1978).
G. Iredale, counsel for Plaintiffs, submitted a Declaration
in support of Plaintiffs' August 30th Motion
(Iredale's “August 29th Declaration”). (ECF
No. 189-2). In Iredale's August 29th Declaration, he
states his firm hired Sonny Jaramillo “to locate and
serve Mr. Soto.” Id. ¶ 8. Jaramillo, an
employee of San Diego Legal Source, submitted a Declaration
in support of Plaintiffs' June 3rd Motion
(Jaramillo's “June 3rd Declaration”). (ECF
No. 189-3). Jaramillo submitted a second Declaration in