United States District Court, N.D. California, San Francisco Division
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S
APPLICATION TO SERVE DEFENDANT BY PUBLICATION RE: ECF NO.
BEELER UNITED STATES MAGISTRATE JUDGE.
Gerardo Hernandez sued defendants Srija, Inc. (doing business
as Subway #32364) and Carol Lynn Chang, Trustee of the Red
Envelope Trust, under Title III of the Americans with
Disabilities Act of 1990 for failure to make Subway #32364
wheelchair accessible. Ms. Chang owns the lot where the Subway
store is located. Mr. Hernandez served Srija and Srija
answered the complaint. Mr. Hernandez made several unsuccessful
attempts to serve Ms. Chang with the summons and complaint
and believes she is evading service. Mr. Hernandez contends
that Ms. Chang cannot be located with reasonable
diligence. Mr. Hernandez thus seeks to serve Ms.
Chang by publication in a newspaper of general circulation in
the City of San Carlos.
court can decide the matter without oral argument. N.D. Cal.
Civ. L.R. 7-1(b). California Civil Procedure Code §
415.50(a) requires a plaintiff seeking to serve a summons by
publication to demonstrate, “upon affidavit, ”
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.” As Mr. Hernandez has not
filed a sworn affidavit demonstrating that he has a claim
against Ms. Chang, the court denies without prejudice his
application to serve Ms. Chang by publication.
Hernandez identified Ms. Chang as the owner of the lot by
reviewing the Grant Deed for 744 El Camino Real in San
Carlos, California (the location of the Subway
store). Mr. Hernandez also confirmed Ms.
Chang's address by reviewing the Assessment Record for
San Mateo County using the Subway store's
Hernandez sought to effect service on Ms. Chang at her
residence beginning April 8, 2019. Mr. Hernandez hired a
process server, County Process Services, to serve Ms.
Chang.County Process Services attempted service
at Ms. Chang's residence fifteen times between April 9
and June 21, 2019. Through these attempts, County Process
Services noted that there were packages addressed to Ms.
Chang on the front porch and a white Honda Accord and blue
Honda van in the driveway. County Process Services also
conducted three stakeouts on varying days and times between
July 9 and July 18, 2019 at her purported
residence. County Process Services conducted
additional service attempts on July 19 and July 31,
2019. On July 19, 2019, County Process
Services requested a postal trace from the United States Post
Office for the address associated with Ms.
Chang. On July 26, 2019, the postal-trace
report stated that mail sent to Ms. Chang's address was
deliverable. County Process Services conducted two
additional stakeouts on July 26 and August 3,
2019. County Process Services attempted to
serve Ms. Chang two final times on August 1 and 2,
Federal Rule of Civil Procedure 4(e), a plaintiff may serve
an individual defendant using any method permitted by the law
of the state in which the district court is located or in
which service is effected. Fed.R.Civ.P. 4(e)(1). California
law allows for five basic methods of service: (1) personal
delivery to the party, see Cal. Civ. Proc. Code
§ 415.10; (2) delivery to someone else at the
party's usual residence or place of business with mailing
after (known as “substitute service”), see
Id. § 415.20; (3) service by mail with
acknowledgment of receipt, see Id. § 415.30;
(4) service on persons outside the state by certified or
registered mail with a return receipt requested, see
Id. § 415.40; and (5) service by publication,
see Id. § 415.50. California Code of Civil
Procedure § 413.30 also provides that a court “may
direct that summons be served in a manner which is reasonably
calculated to give actual notice to the party served.”
Courts in this district have authorized service by email
under California Civil Procedure Code § 413.30. See,
e.g., Cisco Sys., Inc. v. Shaitor, No.
18-cv-00480-LB, 2018 WL 3109398, at *3-4 (N.D. Cal. June 25,
2018); Steve McCurry Studios, LLC v. Web2Web Mktg.,
Inc., No. C 13-80246 WHA, 2014 WL 1877547, at *2-3 (N.D.
Cal. May 9, 2014); Facebook, Inc. v. Banana Ads,
LLC, No. C-11-3619 YGR, 2012 WL 1038752, at *3 (N.D.
Cal. Mar. 27, 2012).
law permits service 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 Article 3 of the California Code of Civil
Procedure. Cal. Civ. Proc. Code § 415.50(a). In
determining whether a plaintiff has exercised
“reasonable diligence, ” the court examines the
affidavit to see whether the plaintiff “took those
steps a reasonable person who truly desired to give notice
would have taken under the circumstances.” Donel,
Inc. v. Badalian, 87 Cal.App.3d 327, 333 (1978). The
“reasonable diligence” requirement “denotes
a thorough, systematic investigation and inquiry conducted in
good faith by the party or his agent or attorney.”
Kott v. Super. Ct., 45 Cal.App.4th 1126, 1137
(1996). “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,
10 Cal.4th 743, 749 n.5 (1995) (internal quotations and
citations omitted). And because of due process concerns,
service by publication should be allowed only “as a
last resort.” Donel, 87 Cal.App.3d at 333.
a few reasonable steps to serve a defendant does not
necessarily mean that all “myriad of other
avenues” have been properly exhausted to warrant
service by publication. Id. A plaintiff will
generally satisfy his burden through “[a] number of
honest attempts to learn [a] defendant's whereabouts or
his address” by asking his relatives, friends,
acquaintances, or employers, and by investigating
“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.” Kott, 45 Cal.App.4th at
1137 (internal quotations omitted). “These are likely
sources of information, and consequently must be searched
before resorting to service by publication.”
Id. The reasonable-diligence inquiry 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 or mode of search can be said to constitute
due diligence in every case.”).
addition to the reasonable-diligence requirement, a plaintiff
seeking to serve a summons by publication must demonstrate
“upon affidavit” 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. Civ. Proc. Code § 415.50(a)(1). The
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 v. Hale, No.
15-cv-04723-JCS, 2016 WL 4762208, at *2 (N.D. Cal. Sept. 13,
2016) (quoting McNamara v. Sher, No. 11-cv-1344-BEN
(WVG), 2012 WL 760531, at *4 (S.D. Cal. Mar. 8, 2012));
see also Zhang v. Tse, Nos. C 07-4946 JSW, C 05-2641
JSW, 2012 WL 3583036, at *3 (N.D. Cal. Aug. 20, 2012)
(collecting cases). The declaration must be signed by someone
with personal knowledge of the essential facts.
Cummings, 2016 WL 4762208 at *3 (denying the
plaintiff's request for service by publication because
the submitted declaration “d[id] not purport to be an
affidavit, [was] not sworn, and d[id] not demonstrate
counsel's personal knowledge of the facts at