Garcia v. Bernardini et al

Filing 18

ORDER DENYING ADMINISTRATIVE MOTION FOR SERVICE BY PUBLICATION. Signed by Chief Judge Richard Seeborg on 8/1/2022. (rslc3, COURT STAFF) (Filed on 8/1/2022)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
ORLANDO GARCIA,

10

Case No. 21-cv-08560-RS

Plaintiff,
11

United States District Court
Northern District of California

v.
12
JOSEPH BERNARDINI, et al.,

13

ORDER DENYING ADMINISTRATIVE
MOTION FOR SERVICE BY
PUBLICATION

Defendants.
14
15
Plaintiff filed a third administrative motion for service by publication. In his first motion,

16
17

Plaintiff requested to conduct service by publication in a newspaper that is no longer in

18

circulation. The Court denied the motion, and Plaintiff filed a new motion requesting service by

19

publication in the Valley Times, which Plaintiff stated was part of the Bay Area News Group.

20

Finding no reference to the Valley Times on the Bay Area News Group’s website, the motion was

21

denied without prejudice to Plaintiff offering some kind of documentary evidence that the Valley

22

Times is indeed currently in circulation.
Plaintiff brings this third motion, attaching an email with an employee of the Bay Area

23
24

News Group in support of its request to publish in the Valley Times.1 Plaintiff, however, has not

25
26
27
28

Service by publication is permitted “in a named newspaper, published in this state, that is most
likely to give actual notice to the party to be served.” Cal. Civ. Proc. Code. § 4150.50(b). Plaintiff
provides no information about the circulation of the Valley Times to establish that the newspaper
is the one “that is most likely to give actual notice to the party to be served.” Id. Other courts in
this district have found the East Bay Times is a newspaper that is most likely to give actual notice.
1

1

established that he is entitled to service by publication at this stage. Under California law, service

2

by publication is permitted “if upon affidavit it appears to the satisfaction of the court in which the

3

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

4

manner specified” in the statute. Cal. Civ. Proc. Code § 415.50(a). “Before allowing a plaintiff to

5

resort to service by publication, the courts necessarily require him to show exhaustive attempts to

6

locate the defendant, for it is generally recognized that service by publication rarely results in

7
8
9
10

actual notice.” Watts v. Crawford, 10 Cal. 4th 743, 749 n.5 (1995) (internal quotation marks and
citation omitted).
Other courts in this district have held in disability access cases that when the Defendant
owns a business or the physical property at which a business operates, failure to attempt any
investigation at the property in question or to attempt service at that location does not constitute

11

United States District Court
Northern District of California

reasonable diligence. See Garcia v. Clement-Rorick, 21-cv-05037-TSH, 2022 WL 1478532, at *2
12
(N.D. Cal. April 19, 2022); Garcia v. Saffarian, 21-cv-06451-MMC, 2022 WL 634435, at *2
13
14
15
16

(N.D. Cal. March 3, 2022). This lawsuit concerns the property at 688 Blossom Way, Hayward,
California, where Plaintiff alleges the business “Sam’s Cherryland Grocery” operates. Although
Plaintiff has investigated Defendants’ home address and attempted service at the address where he
believes Plaintiffs reside, Plaintiff has not documented any investigation or attempted service at

17

688 Blossom Way. The administrative motion for service by publication is therefore denied

18

without prejudice. Plaintiff is granted a 30-day extension, from the date of this order, to complete

19

service on Defendants.

20
21

IT IS SO ORDERED.

22
23

Dated: August 1, 2022

24
25
26
27
28

See Garcia v. Clement-Rorick, 21-cv-05037-TSH, 2022 WL 1478532, at *3 (N.D. Cal. April 19,
2022); Macias v. Fasail, 2020 WL 2542028, at *4 (N.D. Cal. May 19, 2020); United States v.
Benson, 2019 WL 6612246, at *3 (N.D. Cal. Dec. 5, 2019). If Plaintiff is allowed to serve
Defendants by publication, the East Bay Times is the proper publication.
ORDER DENYING ADMINISTRATIVE MOTION FOR SERVICE BY PUBLICATION
CASE NO. 21-cv-08560-RS

2

1
2

______________________________________
RICHARD SEEBORG
Chief United States District Judge

3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER DENYING ADMINISTRATIVE MOTION FOR SERVICE BY PUBLICATION
CASE NO. 21-cv-08560-RS

3