Block v. Aloudi, et al.

Filing 13

ORDER VACATING HEARING AND DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR SERVICE BY PUBLICATION. Order signed by Magistrate Judge Sheila K. Oberto on 2/16/2021. (Kusamura, W)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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HENDRIK BLOCK,

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Plaintiff,

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v.
IMAD AHMED ALOUDI, et al.,
Defendants.

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I.

Case No.: 1:20-cv-01217-DAD-SKO
ORDER VACATING HEARING AND
DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION FOR SERVICE BY
PUBLICATION
(Doc. 11)

INTRODUCTION

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On August 27, 2020, Plaintiff Hendrik Block filed a civil complaint against Defendants Imad

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Ahmed Aloudi, dba Shields Food Market aka Shields Community Market (“Defendant Aloudi”) and

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Badr Mohamed Refai, as Trustee of the Badr and Amira Refai Family Trust Established on April 16,

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2016 (“Defendant Refai”). (Doc. 1.) Plaintiff alleges claims under Title III of the Americans with

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Disabilities Act of 1990 and parallel California law for failure to make Shields Food Market wheelchair

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accessible. (Doc. 1.) According to Plaintiff, Defendant Refai owns the lot where Shields Food Market

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is located. (Declaration of Tanya E. Moore (“Moore Decl.”), Doc. 11-2 ¶ 2.)

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On August 27, 2020, the Court issued a summons as to Defendants Aloudi and Refai. (Doc. 3.)

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On October 21, 2020, the summons was returned executed as to Defendant Aloudi.1 (Doc. 5.) Plaintiff

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made two unsuccessful attempts to serve Defendant Refai with the summons and complaint and

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contends that he cannot be located with reasonable diligence. (Doc. 11 at 2, Doc. 11-1 at 2–3.) Plaintiff

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thus seeks to serve Defendant Refai by publication in a newspaper of general circulation in Fresno,

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California. (Doc. 11.)

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Plaintiff filed his motion for service by publication on January 11, 2021. Opposition to the

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motion was due on February 10, 2021. Neither defendant has filed an opposition. The Court finds it

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appropriate for Plaintiff’s motion to be submitted on the record and brief on file without the need for

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oral argument. See E.D. Cal. Local Rule 230(g). Accordingly, the Court will vacate the hearing

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scheduled for February 24, 2021.

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As Plaintiff has not filed a sworn affidavit demonstrating that he has a claim against Defendant

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Refai as required by California Code of Civil Procedure § 415.50(a), the court denies without prejudice

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his motion to serve Defendant Refai by publication.

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II.

BACKGROUND

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Plaintiff identified Defendant Refai as the owner of the lot by reviewing the Deed Record for

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425 West Shields Avenue, Fresno, California (the location of Shields Food Market). (Moore Decl.,

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Doc. 11-2 ¶ 2.) Plaintiff also confirmed Defendant Refai’s ownership of the lot by reviewing the

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Assessment Record using Shield Food Market’s address. (Id.)

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From the “available public records,” Plaintiff identified Defendant Refai’s residence as 5770

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West Millbrae Avenue, Fresno, California. (Moore Decl., Doc. 11-2 ¶ 3.) Plaintiff sought to effect

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service on Defendant Refai beginning on September 3, 2020. (Id.) He hired a process server, County

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Process Services, Inc., which attempted to effect service of documents on Defendant Refai at his

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residence on September 8, 2020. (Declaration of Albert Moles (“Moles Decl.”), Doc. 11-3 at ¶ 3; Moore

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Decl., Doc. 11-2 at ¶¶ 3–4.) The current occupant stated Defendant Refai was not known that that

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Defendant Aloudi is now in default. (See Doc. 7.)

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address. (Id.) On October 11, 2020, County Process Services, Inc. again attempted to effect service on

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Defendant Refai at a second address provided by Plaintiff of 5714 West Magill Avenue, Fresno,

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California. (Moles Decl., Doc. 11-3 at ¶ 4; Moore Decl., Doc. 11-2 at ¶ 5.) County Process Services,

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Inc. was not able to effect service, as the current occupant stated Defendant Refai was not known to that

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address. (Id.)

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III.

LEGAL STANDARD

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Rule 4 of the Federal Rules of Civil Procedure provides that proper service can be made by

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“following state law for serving a summons in an action brought in courts of general jurisdiction in the

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state where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1). Therefore,

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California’s statute for service by publication will govern whether such service is proper in this action.

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California Code of Civil Procedure § 415.50(a)(1) provides, in pertinent part, that “[a] summons

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may be served by publication if upon affidavit it appears to the satisfaction of the court in which the

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action is pending that the party to be served cannot with reasonable diligence be served in another

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manner specified in this article and that . . . [a] cause of action exists against the party upon whom

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service is to be made or he or she is a necessary or proper party to the action.” In determining whether

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a plaintiff has exercised “reasonable diligence,” the court examines the affidavit to see whether the

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plaintiff “took those steps a reasonable person who truly desired to give notice would have taken under

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the circumstances.” Donel, Inc. v. Badalian, 87 Cal. App. 3d 327, 333 (1978). The “reasonable

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diligence” requirement “denotes a thorough, systematic investigation and inquiry conducted in good

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faith by the party or his agent or attorney.” Kott v. Super. Ct., 45 Cal. App. 4th 1126, 1137 (1996).

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“Before allowing a plaintiff to resort to service by publication, the courts necessarily require him to

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show exhaustive attempts to locate the defendant, for it is generally recognized that service by

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publication rarely results in actual notice.” Watts v. Crawford, 10 Cal. 4th 743, 749 n.5 (1995) (internal

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quotations and citations omitted). And, because of due process concerns, service by publication should

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be allowed only “as a last resort.” Donel, Inc., 87 Cal. App. 3d at 333.

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Taking a few reasonable steps to serve a defendant does not necessarily mean that all “myriad

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of other avenues” have been properly exhausted to warrant service by publication. Id. A plaintiff will

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generally satisfy his burden through “[a] number of honest attempts to learn [a] defendant’s whereabouts

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or his address” by asking his relatives, friends, acquaintances, or employers, and by investigating

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“appropriate city and telephone directories, the voters' register, and the real and personal property index

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in the assessor’s office, near the defendant’s last known location.” Kott, 45 Cal. App. 4th at 1137

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(internal quotations omitted). “These are likely sources of information, and consequently must be

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searched before resorting to service by publication.” Id. The reasonable-diligence inquiry is fact and

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case specific. Id. at 1137–38 (“[T]he showing of diligence in a given case must rest on its own facts

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and no single formula or mode of search can be said to constitute due diligence in every case.”).

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In addition to the reasonable-diligence requirement, a plaintiff seeking to serve a summons by

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publication must demonstrate “upon affidavit” that “[a] cause of action exists against the party upon

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whom service is to be made or he or she is a necessary or proper party to the action.” Cal. Civ. Proc.

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Code § 415.50(a)(1). For the purpose of service by publication, the existence of a cause of action is a

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jurisdictional fact.” Harris v. Cavasso, 68 Cal. App. 3d 723, 726 (1977). The requesting party must

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submit an affidavit containing a statement of some fact that would be legal evidence that the cause of

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action exists for the court to have jurisdiction to order service by publication. Id. “When jurisdiction is

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sought to be established by constructive service, the statutory conditions for such service must be strictly

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complied with or the judgment is subject to collateral attack.” Donel, Inc., 87 Cal. App. 3d at 334. The

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affidavit filed in support of the motion for substitute service “must contain independent evidentiary

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support in the form of a sworn statement of facts to support a cause of action against the defendant, and

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if it does not, the Court does not have jurisdiction to order service by publication.” Wileman Bros. &

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Elliott v. Y Farms, LLC, Case No. 1:19-cv-00909-NONE-BAM, 2020 WL 3127934, at *2 (E.D. Cal.

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June 12, 2020) (citing Harris, 68 Cal. App. 3d at 726–27). The affidavit must be signed by someone

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with personal knowledge of the essential facts. See Sananikone v. United States, No. 2:07-cv-01434-

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MCE-EFB, 2008 WL 5381690, at *1 (E.D. Cal. Dec. 16, 2008) (“[T]he affidavit . . . must include

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allegations, based on personal knowledge of the underlying facts, that a cause of action exists against

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this defendant, or that he is a necessary party to this action.”).

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IV.

DISCUSSION

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Plaintiff has not filed an affidavit demonstrating that he has a claim against Defendant Refai.

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Although he includes affidavits indicating Defendant Refai’s ownership of the lot on which Shields

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Food Market is located and describing the lengths to which County Process Services, Inc. and Plaintiff’s

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attorney went to serve Defendant Refai, none provide “independent evidentiary support . . . for the

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existence of a cause of action against the defendant.” The Court thus denies without prejudice Plaintiff’s

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motion to serve Defendant Refai by publication. Cf. Wileman Bros. & Elliott, 2020 WL 3127934, at

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*2; Hernandez v. Srija, Inc., No. 19-CV-01813-LB, 2019 WL 4417589, at *2 (N.D. Cal. Sept. 16, 2019).

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Moreover, while the Court does not decide the issue here, Plaintiff’s motion and supporting

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papers raise a question whether he has demonstrated sufficiently that he cannot with reasonable

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diligence serve Defendant Refai in another manner. Defendant Refai allegedly owns the lot on which

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Shields Food Market is located, and thus presumably his co-defendant, Defendant Aloudi, leases its

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storefront from Defendant Refai and must pay him rent. Plaintiff does not indicate if he inquired whether

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Defendant Aloudi (who has been served in this case but not appeared) has contact information for

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Defendant Refai, such as an email address, which might provide an alternative means for service. Cf.

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Castillo-Antonio v. Azurdia, No. C-13-05709 DMR, 2014 WL 4060219, at *3 (N.D. Cal. Aug. 14, 2014)

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(denying motion to serve summons and complaint by publication where plaintiff did not contact

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defendant’s co-defendant for defendant’s contact information); see also, e.g., Gray v. Extended Stay

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Am., Inc., No. 2:19-cv-01269-MCE-EFB, 2020 WL 1274265, at *4 (E.D. Cal. Mar. 17, 2020) (“Courts

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have construed [the California Code of Civil Procedure] as authorizing service by email if it is

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reasonably calculated to give actual notice to the party to be served.”).

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Plaintiff’s papers also do not indicate whether he tried to contact Defendant Refai by other

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means, such as calling him by phone or mailing him a copy of the summons and complaint, which may

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be relevant to whether (1) Plaintiff has shown reasonable diligence, cf. Burlington Ins. Co. v. Diamond

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Partners, Inc., No. 1:10-cv-0100-LJO-SKO, 2010 WL 2555169, at *2 (E.D. Cal. June 18, 2010) (finding

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that plaintiff exercised reasonable diligence where, among other things, it called the phone numbers

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attached to defendant’s known addresses) and (2) Plaintiff has actual notice of the lawsuit and is evading

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service, thus bolstering the case for service by publication, cf. Lucero v. IRA Servs., Inc., No. 18-cv-

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05395-LB, 2019 WL 2123576, at *3 (N.D. Cal. May 15, 2019) (observing that whether a defendant has

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actual knowledge of the lawsuit may be relevant to a motion to serve by publication).

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Finally, there is no indication that any efforts have been made to locate Defendant Refai during

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the last three months, as the last service attempt occurred in October 2020. See Integon Preferred Ins.

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Co. v. Camacho, No. 1:16-cv-01496-AWI-SAB, 2017 WL 1351704, at *3 (E.D. Cal. Mar. 24, 2017)

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(citing Judicial Council Comment to Cal. Civ. Proc. Code § 415.50(a) (“[A]ttempts at personal service,

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search, affidavits, and the court's order for publication must, however, follow in reasonably quick

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succession so that they would relate to the conditions at the time of publication.”)). Should Plaintiff

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renew his motion to serve the summons and complaint by publication (as opposed to in another manner),

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he may wish to address these issues more thoroughly.
V.

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ORDER

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Based on the forgoing, IT IS HEREBY ORDERED that Plaintiff’s motion for service by

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publication (Doc. 11) is DENIED WITHOUT PREJUDEICE and the hearing set for February 24, 2021,

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is VACATED.

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IT IS SO ORDERED.
Dated:

February 16, 2021

/s/

UNITED STATES MAGISTRATE JUDGE

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Sheila K. Oberto

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