Johnson v. Vuong et al

Filing 10

ORDER signed by Judge Kimberly J. Mueller on 8/4/2014 GRANTING 8 Motion for Service by Publication. Plaintiff is directed to serve defendant Karl Vuong by publication in The Sacramento Bee. See CAL. CIV. CODE § 415.50(b). Plaintiff is furthe r directed to mail a copy of the summons, the complaint, and the order for publication to defendant Vuong at all addresses available for him. Finally, plaintiff shall comply with California Government Code section 6064, which provides that the publication in the newspaper must occur once a week for four successive weeks. (Zignago, K.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

SCOTT JOHNSON,

12

Plaintiff,

13
14
15

No. 2:14-cv-00709-KJM-DAD

v.

ORDER

KARL VUONG; DIANA CERPAS; and
DOES 1-10.
Defendants.

16
17
18

I.

19

INTRODUCTION
The claims in this case arise out of plaintiff’s allegations that defendants’

20

commercial property, inter alia, is inaccessible to wheelchair users and has no handicapped

21

parking space. (Compl. ¶¶ 1-2, 8-9.) Plaintiff filed his complaint on March 18, 2014. (ECF No.

22

1.) On May 16, 2014, plaintiff moved for the entry of default against one of the defendants,

23

Diana Cerpas (ECF No. 5), and the court clerk entered a default on May 20, 2014 (ECF No. 6).

24

On July 21, 2014, plaintiff applied for an order allowing service of the summons by publication

25

on the other named defendant, Karl Vuong. (ECF No. 8.) As explained below, the court

26

GRANTS plaintiff’s application.

27

/////

28
1

1

II.

ANALYSIS

2

Under Federal Rule of Civil Procedure 4(e), an individual may be served by:

3

(1) following state law for serving a summons . . . ; or

4

(2) doing any of the following:

5

(A) delivering a copy of the summons and of the complaint to
the individual personally;

6

(B) leaving a copy of each at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion
who resides there; or

7
8

(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.

9
10

In California, the final method of service permitted is by publication of summons

11

in a newspaper of general circulation. CAL. CIV. PROC. CODE § 415.50. Specifically, the

12

California Code of Civil Procedure provides:

13

(a) A summons may be served 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 . . . and that . . .

14
15

(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.

16
17
18

CAL. CIV. PROC. CODE § 425.50.
However, service by publication should “be utilized only as a last resort,” Watts v.

19
20

Crawford, 10 Cal. 4th 743, 749 n.5 (1995), because “notice by publication [is] not reasonably

21

calculated to provide actual notice of the pending proceeding and [is] therefore inadequate to

22

inform those who could be notified by more effective means such as personal service or mailed

23

notice[,]” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 795 (1983). Hence, “[b]efore

24

allowing a plaintiff to resort to service by publication, the courts necessarily require [a plaintiff]

25

to show exhaustive attempts to locate the defendant . . . .” Watts, 10 Cal. 4th at 749 n.5 (internal

26

quotation marks omitted). A plaintiff has the burden to establish “reasonable diligence” in

27

/////

28

/////
2

1

attempting service by other methods. Olvera v. Olvera, 232 Cal. App. 3d 32, 42 (1991).

2

“Reasonable diligence” in attempting to serve by other methods connotes:

3

[A] thorough, systematic investigation and inquiry conducted in
good faith . . . . A number of honest attempts to learn defendant’s
whereabouts or address by inquiry of relatives, friends, and
acquaintances, or of an employer, and by investigation of
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, are generally sufficient. These
are likely sources of information, and consequently must be
searched before resorting to service by publication. However, the
showing of diligence in a given case must rest on its own facts and
no single formula nor mode of search can be said to constitute due
diligence in every case.

4
5
6
7
8
9
10

Kott v. Superior Court, 45 Cal. App. 4th 1126, 1137-38 (1996) (internal citations and quotations

11

omitted).

12

Here, the court finds plaintiff has met his burden in establishing “reasonable

13

diligence.” Specifically, plaintiff’s counsel has searched various databases and learned that

14

defendant Vuong “had only one listed possible current mailing addresses [sic]”: 2911 Atlas Ave.,

15

Sacramento, CA 95820-4638. (Ballister Decl. ¶¶ 2-3, ECF 8-1.) Plaintiff’s agent for service,

16

Armada Prime, LLC, has provided information about ten unsuccessful attempts to serve

17

defendant Vuong at that address. (See ECF 8-3.) In addition, plaintiff has mailed a notice and

18

acknowledgment receipt of summons and complaint to the same address. (See ECF 8-4.) Finally,

19

plaintiff’s counsel declares he “has been unable to locate any additional addresses for . . .

20

[d]efendant.” (Ballister Decl. ¶ 9.) Under these circumstances, plaintiff has satisfied the

21

“reasonable diligence” requirement. See Bd. of Trustees of the Leland Stanford Junior Univ. v.

22

Ham, 216 Cal. App. 4th 330, 336 (stating that two or three attempts to serve at a proper place

23

generally satisfied the reasonable diligence standard). Accordingly, the court GRANTS

24

plaintiff’s application for an order for publication of summons.

25

Plaintiff is directed to serve defendant Karl Vuong by publication in The

26

Sacramento Bee. See CAL. CIV. CODE § 415.50(b). Plaintiff is further directed to mail a copy of

27

the summons, the complaint, and the order for publication to defendant Vuong at all addresses

28
3

1

available for him. Finally, plaintiff shall comply with California Government Code section 6064,

2

which provides that the publication in the newspaper must occur once a week for four successive

3

weeks.

4
5

IT IS SO ORDERED.
DATED: August 4, 2014.

6
7
UNITED STATES DISTRICT JUDGE
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4