Castillo-Antonio v. Chan et al

Filing 18

Order by Magistrate Judge Donna M. Ryu denying 16 Motion for Service by Publication.(dmrlc2, COURT STAFF) (Filed on 8/14/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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JOSE DANIEL CASTILLO-ANTONIO,

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Plaintiff(s),

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No. C-13-05709 DMR
ORDER DENYING EX PARTE MOTION
FOR SERVICE BY PUBLICATION
[DOCKET NO. 16]

v.
EUGENIA AZURDIA DBA EL CERRITO
INSURANCE SERVICES, KA CHAN, AND
DOES 1-50 INCLUSIVE,
Defendant(s).
___________________________________/

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Before the court is an ex parte motion for service by publication on Defendant Ka Chan filed

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by Plaintiff Jose Daniel Castillo-Antonio. [Docket No. 16.] The court finds that the motion is

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appropriate for resolution without oral argument pursuant to Civil L.R. 7-1(b). For the reasons

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stated below, the motion is denied without prejudice.

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I. BACKGROUND
Plaintiff alleges that he is a physically handicapped person. Compl. [Docket No. 1] at ¶ 6.

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Defendant Eugenia Azurdia dba El Cerrito Insurance Services is the owner and operator of El

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Cerrito Insurance Services, an insurance business located at 10891 San Pablo Avenue in El Cerrito,

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California. Id. at ¶ 7. Chan is also alleged to be the “owner[], operator[], possessor[], builder[], and

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keeper[]” of the insurance business.1 Id. at ¶ 8. Plaintiff alleges that on October 9, 2013, he visited

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the insurance business for the purpose of shopping for insurance, but encountered architectural

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barriers that interfered with his access to the business. Id. at ¶¶ 3-5, 12.

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On December 10, 2013, Plaintiff filed a complaint against Defendants Azurdia and Chan as

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well as unnamed Doe defendants, bringing causes of action for (1) violation of the Americans with

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Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., (2) violation of California Health and Safety

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Code § 19955 et seq., (3) violation of California Civil Code §§ 54, 54.1 and 54.3, and (4) violation

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of California Unruh Civil Rights Act, California Civil Code §§ 51, 51.5. Compl. at ¶ 6-20.

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by publication after unsuccessful attempts to serve him by other means.

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For the Northern District of California

United States District Court

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Default has been entered as to Azurdia. [Docket No. 9.] Plaintiff now moves to serve Chan

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II. DISCUSSION
A. Legal Standards

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Federal Rule of Civil Procedure 4(e)(1) allows for service “following state law for serving a

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summons in an action brought in courts of general jurisdiction in the state where the district court is

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located or where service is made.” Under California law, “[a] summons may be served by

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publication if upon affidavit it appears to the satisfaction of the court . . . that the party to be served

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cannot with reasonable diligence be served in another manner and . . . (1) [a] cause of action exists

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against the party upon whom service is to be made or he or she is a necessary or proper party to the

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action.” Cal. Civ. Proc. Code § 415.50(a).

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“Because of due process concerns, service by publication must be allowed ‘only as a last

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resort.’” Duarte v. Freeland, No. C-05-2780 EMC, 2008 WL 683427 at *1 (N.D. Cal. Mar. 7, 2008)

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(quoting Watts v. Crawford, 10 Cal. 4th 743, 749 n. 5 (1995)). The “reasonable diligence”

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requirement of Section 415.50 “denotes a thorough, systematic investigation and inquiry conducted

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in good faith by the party or his agent or attorney.” Kott v. Superior Court, 45 Cal. App. 4th 1126,

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1137 (1996) (citations omitted). “Before allowing a plaintiff to resort to service by publication, the

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courts necessarily require him to show exhaustive attempts to locate the defendant, for it is generally

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In the motion, Plaintiff identifies Defendant Chan as the landlord of the property in which the
insurance business is located. Motion at 1 (referring to Chan as the “Landlord Defendant”).

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(citation omitted). The fact that a plaintiff has taken one or a few reasonable steps does not

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necessarily warrant service by publication; instead, the plaintiff must first “exhaust the myriad of

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other avenues.” Donel, Inc. v. Badalian, 87 Cal. App. 3d 327, 333 (1978) (the single act of

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searching telephone directories did not constitute reasonable diligence in attempting to locate

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defendant so as to justify service by publication). “A number of honest attempts to learn defendant’s

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whereabouts or his address by inquiry of relatives, friends, and acquaintances, or of his employer,

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and by investigation of appropriate city and telephone directories, the voters’ register, and the real

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and personal property index in the assessor’s office, near the defendant’s last known location, are

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generally sufficient. These are likely sources of information, and consequently must be searched

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For the Northern District of California

recognized that service by publication rarely results in actual notice.” Watts, 10 Cal.4th at 749 n. 5

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United States District Court

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before resorting to service by publication.” Kott, 45 Cal. App. 4th at 1137 (citations omitted).

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The determination of reasonable diligence is fact and case specific. Id. at 1137-38 (“[T]he

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showing of diligence in a given case must rest on its own facts and no single formula nor mode of

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search can be said to constitute due diligence in every case.”) (citation omitted).

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B. Affidavit

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An affidavit submitted under section 415.50 must “provide independent evidentiary support,

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

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McNamara v. Lee, No. 11-cv-l344 BTM (WMc), 2011 WL 4635618 at *1 (S.D. Cal. Oct. 5, 2011)

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(citing Harris v. Cavasso, 68 Cal. App. 3d 723, 726 (1977) (for purpose of service by publication,

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affidavit must contain a statement of “evidence tending to establish” the existence of a cause of

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action)).

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Plaintiff’s affidavit is a declaration submitted by his counsel. See MacBride Decl. [Docket

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No. 16-1]. With respect to the requirement that the affidavit include a statement of facts supporting

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a cause of action against Chan, the declaration is short: it lists the causes of action brought against

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Chan, and states that counsel has “personally interviewed my client and prepared the complaint, and

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can attest that each of these causes of action have a factual basis and merit. A summary of the

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factual basis of the complaint, which I hereby certify, appears within that document at paragraphs

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4(a) to 4(e).” MacBride Decl. at ¶¶ 3-4.

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This statement is insufficient. Reference to another document for the statement of facts is

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insufficient because the affidavit itself must include the statement of facts. See Harris, 68 Cal. App.

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3d at 726 (“Contrary to plaintiffs’ assertion, the verification of the complaint by plaintiffs’ counsel

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on his information and belief is no substitute for the sworn statement of facts which section 415.50

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requires of the affiant.”; finding that predecessor statute allowed showing of cause of action by

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either separate affidavit or verified complaint, but Section 415.50 allows showing to be made only

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by affidavit).

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C. Reasonable Diligence

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In addition, the declaration is deficient because does not demonstrate that Plaintiff “took
those steps which a reasonable person who truly desired to give notice would have taken under the

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For the Northern District of California

United States District Court

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circumstances” would have taken, which is what is required under the “reasonable diligence”

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requirement of Section 415.50. Donel, 87 Cal. App. 3d at 333.

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The declaration describes Plaintiff’s counsel’s attempts to serve Chan. First, counsel

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conducted an investigation at the Contra Costa County Tax Assessor’s Office regarding the owner of

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the property in which the insurance business is located. Counsel’s investigation found that “all

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evidence2 indicated that [a Wenk Avenue address in Richmond, California] was indeed the address

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of property owner Ka Chan.” Id. at ¶ 6(b). Then, counsel (1) used a professional process server to

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attempt service at the Wenk Avenue address on December 12, 14, 16, and 17, 2013;3 and (2)

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attempted to serve by mailing “packages” via first class mail and certified mail. Id. at ¶ 6(a)-(c).

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Counsel does not state when he mailed the “packages” or what those packages contained, but notes

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that the certified mail package was returned as undeliverable on May 16, 2014. Id. The first class

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mail package was not returned.

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The declaration does not explain what evidence constituted “all evidence indicat[ing]” that
Chan could be located at the Wenk Avenue address.
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The declaration also attaches the process server’s Affidavit of Reasonable Diligence which
shows five attempts to serve. MacBride Decl. at Ex. 1 (attempts to serve made on December 14, 2013
at 12:01 p.m. and 7:40 p.m.; December 15, 2013 at 8:00 a.m.; December 16, 2013 at 5:10 p.m.;
December 17, 2013 at 9:25 p.m.). During each attempt, the process server recorded “no answer and no
activity” at the address.

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Counselalso states that he is “not aware of any other person, firm, or entity who knows or is

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likely to know the whereabouts of [Chan], and [he] know[s] of no other reliable source from which

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[he] can obtain such information. The co-defendant, Eugenia Azurdia, has been served, has not

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appeared, and has been defaulted. It is therefore unlikely that [she] will intervene on behalf of her

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co-defendant, since she has not intervened on her own behalf.” Id.

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While Plaintiff has attempted personal service on Chan’s believed address four times over

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four days (during a time of year when many people are away from their homes) and sent “packages”

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via first class and certified mail to that address, these attempts do not exhaust the myriad other

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options available. Plaintiff could have attempted to gather more information about Chan’s
whereabouts and confirm that he either resides at the address or has other properties by searching

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For the Northern District of California

United States District Court

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phone books, online people search tools, voter registries, or other common sources of information,

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or by hiring a private investigator. See, e.g., Loskot v. Galleria, No. CV 12-05549-KA W, 2013 WL

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6512757 at *2 (N.D. Cal. Dec. 12, 2013) (finding that personal service, online people searches and

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telephone calls were reasonable steps but were insufficient due to failure to confirm Defendant

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resided at the address); Aevoe Corp. v. Pace, No. C 11-3215 MEJ, 2011 WL 3904133 at *2 (N.D.

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Cal. Sept. 6, 2011) (holding that personal and substitute service at primary and secondary address,

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calling phone numbers attached to address, and hiring private investigator was sufficient to warrant

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service by publication). Other means of establishing Chan’s whereabouts or determining whether

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Chan does in fact reside at the Richmond address can include contacting relatives, friends, or

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neighbors. See Kott, 45 Cal. App. 4th at 1137. In addition, Plaintiff did not indicate whether he had

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an email address for Chan, and whether he attempted to reach Chan via that email address. See

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Aevoe, 2011 WL 3904133 at *2 (noting that the plaintiff’s diligent efforts included emailing a cease

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and desist letter to the defendant’s known email addres).

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Nor did Plaintiff take the “step[s] which patently appeared to hold the most promise for

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locating” Chan, see Donel, 87 Cal. App. 3d at 333, which in this case would include (1) determining

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whether Chan still owns the San Pablo Avenue property and attempting to locate him there and (2)

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contacting Chan’s co-defendant for Chan’s contact information. That Plaintiff’s counsel believes

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that Azurdia is “unlikely” to “intervene on behalf of her co-defendant” is an insufficient excuse;

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Plaintiff need not require Azurdia to “intervene” but simply explain what she knows about Chan.

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Plaintiff does not claim that the insurance business is no longer operating or that Azurdia is no

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longer operating it; at the least, counsel could contact the insurance business in an attempt to locate

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Chan.

describe what “further investigation” has entailed. Id. at ¶ 7. Simply stating that other investigation

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has proven unsuccessful is insufficient without details as to the steps actually taken. See, e.g.,

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McNamara, 2011 WL 4635618 at *2 (finding the court was “unable to determine whether Plaintiff

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ha[d] investigated all necessary sources of information” because Plaintiff failed to provide content of

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searches); Thieme v. Cobb, No. C 13-3827 MEJ, 2013 WL 6072090 at *5 (N.D. Cal. Nov. 18, 2013)

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(stating that a lack of dates or records of searches prevented court from determining if there was

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reasonable diligence or timeliness in plaintiff’s efforts).

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Because Plaintiff has not shown that he has exhausted the other ways to locate Chan, he has

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not met the reasonable diligence requirement. The last resort option of service by publication is

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therefore appropriate at this time. The motion is denied without prejudice.

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IT IS SO ORDERED.

onna
Judge D
DONNA M. RYU

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NO

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Dated: August 14, 2014

M. Ryu

R NIA

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United States Magistrate Judge

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Counsel declares that “[f]urther investigation has been fruitless,” although he does not

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United States District Court

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