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Estate of Smith v. City of San Diego

United States District Court, S.D. California

September 4, 2019

ESTATE OF TIMOTHY GENE SMITH, by his successor in interest, WYATT ALLEN GUNNER SMITH; SANDY LYNN SIMMONS; and WYATT ALLEN GUNNER SMITH, Plaintiffs,
v.
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.

          ORDER

          HON. WILLIAM Q. HAYES UNITED STATES DISTRICT COURT JUDGE.

         The matter before the Court is Plaintiffs' Ex Parte Motion for Alternative Service of Summons as to Defendant Ismael Soto. (ECF No. 189).

         I. Background

         On December 8, 2016, Plaintiffs[1] 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).

         On June 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, finding:

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 publication.

(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).

         On 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 at 12).

         II. Legal Standard

         Rule 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.

         California 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).

         III. Discussion

         Eugene 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 ...


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