United States District Court, S.D. California
ORDER DENYING MOTION TO AUTHORIZE SERVICE BY
PUBLICATION [ECF NO. 25]
Cynthia Bashant United States District Judge.
March 29, 2019, Plaintiff Spice Jazz LLC's filed a
complaint against Defendants Youngevity International, Inc.
and Bianca Reyne Djafar-Zade. (ECF No. 1.) Plaintiff then
filed a first amended complaint against these two Defendants,
which Defendant Youngevity moved to dismiss. (ECF Nos. 10,
13.) Ms. Djafar-Zade had not yet been served. The Court
granted in part Youngevity's motion to dismiss, granted
Plaintiff leave to amend, and noted that Plaintiff must serve
all named Defendants with its amended complaint. (ECF No. 19,
at 19.) Plaintiff then filed a second amended complaint,
again serving only Youngevity. The Court therefore ordered
Plaintiff to show cause why Djafar-Zade had not been served.
In response, Plaintiff filed a motion seeking permission to
serve Djafar-Zade by publication. (ECF No. 25.)
Court finds this Motion suitable for determination on the
papers submitted and without oral argument. See Civ.
L.R. 7.1(d)(1). For the reasons stated below, this Court
DENIES Plaintiff's Motion without
Federal Rules of Civil Procedure allow service of process as
permitted 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). California 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
determining whether a plaintiff has exercised
“reasonable diligence, ” the court examines the
affidavit required by the statute 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.
Superior Court, 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).
counsel Mr. Zapendowski submits a declaration detailing the
efforts undertaken to serve Djafar-Zade. (“Decl.,
” ECF No. 25-2.) Djafar-Zade resided at an address in
Vacaville, California while employed by Plaintiff, but
counsel declares that Djafar-Zade now cannot be located at
that address. (Id. ¶ 2.) Mr. Zapendowski flew
to Australia, where Djafar-Zade's mother is believed to
reside, and met with several witnesses. (Id. ¶
4.) The witnesses told Zapendowski that Djafar-Zade's
last known address was the Vacaville address. (Id.)
Plaintiff also paid for a “Skip Trace” service in
an attempt to locate Djafar-Zade, but the service only turned
up the same Vacaville address. (Id. ¶5.)
Zapendowski also looked through social media and all
available public records and could determine no location for
Djafar-Zade except for her past Vacaville address.
(Id. ¶ 6.)
Court finds that it does not have enough information to
determine whether Plaintiff has engaged in reasonable efforts
to locate Djafar-Zade. With no further detail, Zapendowski
declares that Djafar-Zade “could not be located”
at the Vacaville address. It is unclear what this means-was
service of process attempted at this address? If so, how many
times and when? Did counsel or the process server speak to
any neighbors to determine whether Djafar-Zade still lived at
the Vacaville address? Further, has counsel attempted to ask
anyone (namely, Djafar-Zade's mother or former
co-workers) where she currently lives? See Kott, 45
Cal.App.4th at 1137 (providing that a plaintiff could inquire
of the defendant's “relatives, friends, and
acquaintances” in an attempt to learn the
defendant's whereabouts). Without this information, the
Court cannot say that Plaintiff has exercised reasonable
diligence to locate Djafar-Zade.
Claims Against Djafar-Zade
addition to a showing of diligence, California law requires a
party seeking service by publication to show that a
“cause of action exists against the party upon whom
service is to be made.” Cal. Civ. Proc. Code §
415.50(a)(1). The proponent 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.” McNamara v. Sher, No.
11-CV-1344-BEN WVG, 2012 WL 760531, at *4 (S.D. Cal. Mar. 8,
brings two causes of action against Djafar-Zade: fraud and
breach of fiduciary duty. In Zapendowski's declaration,
he states that while in Australia, he spoke to Plaintiffs
former Chief Operations Officer, Kylie Burnett, who confirmed
the truth of Plaintiff s allegations against Djafar-Zade.
Burnett “was responsible for monitoring the work of
Plaintiff s entire core of key employees and confirmed that
Ms. Djafar-Zade was on the Company payroll due to her
mother's influence, but did not actually perform any work
for the company or even go into the office.” (Decl.
¶ 7.) Counsel includes no further details. This one
statement in counsel's declaration is not sufficient to
show the existence of causes of action for fraud and breach
of fiduciary duty against Djafar-Zade.