Hernandez et al v. San Jose et al

Filing 34

Order by Hon. Lucy H. Koh Granting 33 Motion for Service by Publication.(lhklc2, COURT STAFF) (Filed on 11/7/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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JUAN HERNANDEZ, et al.,
Plaintiffs,

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Case No. 16-CV-03957-LHK
ORDER AUTHORIZING SERVICE BY
PUBLICATION

v.

Re: Dkt. No. 33
CITY OF SAN JOSE, et al.,
Defendants.

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Plaintiffs Juan Hernandez, Nathan Velasquez, Frank Velasquez, Rachel Casey, Mark

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Doering, Mary Doering, Barbara Arigoni, Dustin Haines-Scrodin, Andrew Zambetti, Christina

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Wong, Craig Parsons, the minor I.P., Greg Hyver, and Todd Broome (collectively, “Plaintiffs”)

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bring this putative class action against Defendants the City of San Jose (“City”); Sam Liccardo,

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the Mayor of San Jose, in his individual capacity (“Liccardo”); Edgardo Garcia, the Police Chief

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of San Jose (“Garcia”) (collectively, “named City Defendants”); Does 1–15; Anthony Yi; the

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minor H.A.; the minor S.M.; and Does 16–38. ECF No. 1 (Compl.). Before the Court is Plaintiff’s

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“Ex Parte Application for Order for Publication of Summons.” ECF No. 33 (“Mot.”). Plaintiffs

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allege that despite reasonable diligence, Plaintiffs have been unable to personally serve Defendant

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Anthony Yi. Mot. at 2–4. Therefore, Defendants request leave to serve Anthony Yi by publication

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Case No. 16-CV-03957-LHK
ORDER AUTHORIZING SERVICE BY PUBLICATION

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in the San Jose Mercury News Newspaper. Id. For the reasons discussed below, the Court

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GRANTS Plaintiff’s motion.

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I.

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FACTUAL AND PROCEDURAL BACKGROUND
The complaint alleges the following facts. Plaintiffs are individuals who attended a rally

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for presidential candidate Donald J. Trump (“Trump”) on June 2, 2016 at the McEnery

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Convention Center (“Convention Center”) in San Jose, California. Compl. ¶¶ 38–39. At the end of

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the rally, as Plaintiffs were leaving the building, San Jose police and other police officers directed

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Plaintiffs from the east-northeast exit of the Convention Center. Id. ¶ 45. A police line outside the

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exit “directed the Trump supporters to turn north and to proceed along Market Street, into [a]
crowd of violent anti-Trump protesters.” Id. ¶ 46. “The police also actively prevented the Trump

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Northern District of California

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Rally attendees from proceeding south along Market Street, away from the anti-Trump protesters,

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or from leaving the convention center through alternative exits.” Id. ¶ 47. When Plaintiffs reached

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the anti-Trump protesters, the protesters attacked. Id. ¶ 48. Among other alleged acts of violence,

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protesters threw a bottle, eggs, and a tomato at Plaintiff Rachel Casey, id. ¶ 82, hit Plaintiff

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Andrew Zambetti with a bag of rocks, id. ¶ 97–100, and threatened and intimidated Plaintiffs Greg

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Hyver and Todd Broome, id. ¶¶ 138–39, 145. During these attacks, Plaintiffs allege that police

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officers directed Plaintiffs into dangerous areas and deliberately did not intervene when violence

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erupted. Id. ¶¶ 50–58, 64, 100, 114–15.

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Plaintiffs allege that Anthony Yi stole Plaintiff Nathan Velasquez’s hat as Nathan

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Velasquez exited the Trump Rally with his father, Frank Velasquez. Id. ¶¶ 65–66. After stealing

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the hat, Anthony Yi allegedly ran approximately 25 yards and fell down. Id. ¶ 67. After Anthony

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Yi fell, Plaintiff Nathan Velasquez helped Anthony Yi to his feet while looking at the hats that

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Anthony Yi was holding to see if any of them belonged to Plaintiff Nathan Velasquez. Id. ¶ 69. As

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Anthony Yi stood up, he allegedly struck Plaintiff Nathan Velasquez in the head with his fist,

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“causing him severe emotional trauma, including a concussion, and extreme emotional distress.”

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Id. ¶ 5. Immediately afterward, Anthony Yi and other protesters allegedly made verbal threats and

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threatening hand gestures to Plaintiff Nathan Velasquez. Id. ¶ 73.

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Case No. 16-CV-03957-LHK
ORDER AUTHORIZING SERVICE BY PUBLICATION

Plaintiffs assert several claims against Anthony Yi: assault, id. ¶¶ 245–51, battery, id. ¶¶

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252–58, violation of California Civil Code § 51.7, id. ¶¶ 259–63, intentional infliction of

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emotional distress, id. ¶¶ 264–68, and negligent infliction of emotional distress, id. ¶¶ 269–73. On

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October 13, 2016, the Court granted in part and denied in part a motion to dismiss filed by

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Plaintiffs the City of San Jose, San Jose Mayor Sam Liccardo, and San Jose Police Chief Edgardo

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Garcia. ECF No. 30. This order did not address any claims against Anthony Yi.

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II.

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DISCUSSION
Service of a complaint in federal court is governed by Federal Rule of Civil Procedure

(“Rule”) 4. Rule 4(e)(1) allows for service “following 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

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United States District Court
Northern District of California

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where service is made.”

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California Code of Civil Procedure § 415.50 provides that “[a] summons may be served by

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publication if upon affidavit it appears to the satisfaction of the court in which the action is

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

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specified in this article and that,” as relevant here, “[a] cause of action exists against the party.”

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Thus, if the requirements of § 415.50 are met in this case, Plaintiffs may use the method of service

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described by § 415.50 under Rule 4(e)(1).

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The second requirement, that “[a] cause of action exists against the party,” Cal. Civ. Pro.

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Code § 415.50, is clearly met. Plaintiffs have alleged that Anthony Yi struck Plaintiff Nathan

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Velasquez in the head. Anthony Yi is a named Defendant in the case, and Plaintiffs have asserted

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five causes of action against Anthony Yi. Thus, a cause of action exists against Anthony Yi.

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Plaintiffs have also met the first requirement of reasonable diligence. The affidavits

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accompanying Plaintiffs’ motion demonstrate that plaintiffs have used reasonable diligence in

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attempting to serve Anthony Yi. Plaintiffs have hired two professional process servers, requested

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information from the Santa Clara County Probation Department, searched social media platforms,

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and sought to verify Anthony Yi’s address using the Santa Clara County voter registration portal.

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See Decl. of Gregory R. Michael, ECF No. 33-2 (describing attorney’s attempts to locate Anthony

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Yi). One process server made four attempts to serve Anthony Yi at two different addresses

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without success. Affidavit of Process Server Kris W. Vorsatz, ECF No. 33-5.

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California courts have found that similar attempts to locate a defendant are sufficient to

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demonstrate “reasonable diligence” under § 415.50. For example, in Giorgio v. Synergy Mgmt.

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Grp., LLC, 231 Cal. App. 4th 241, 248 (2014), the plaintiff had attempted to locate and serve the

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defendant through online searches, hiring two process servers, and attempting to send mail to

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defendant’s only known address. The California Court of Appeal found that these efforts provided

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“substantial evidence” that the defendant “could not with reasonable diligence be served

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personally or by mail.” Id.
In this case, the affidavits show that Plaintiffs have made a “thorough but unsuccessful

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United States District Court
Northern District of California

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search for the defendant.” Judicial Council Comment to Cal. Civ. Pro. Code § 415.50. This is

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enough to meet the requirements of § 415.50.
Plaintiffs have met the requirements of § 415.50 and are therefore entitled to effectuate

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service by publication “in a named newspaper, published in this state, that is most likely to give

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actual notice to the party to be served.” Cal. Civ. Pro. Code. § 4150.50(b). Both of the addresses

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that Plaintiffs had obtained for Anthony Yi were in San Jose. ECF No. 33-5. Therefore, the

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newspaper that is most likely to give actual notice to Anthony Yi is a newspaper in San Jose. At

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least one court has approved the San Jose Mercury News as a newspaper in which publication is

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proper, see Marinache v. Stern, 2015 WL 4537952, at *2 (N.D. Cal. July 27, 2015) (approving

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publication in the San Jose Mercury News), and the Superior Court of the County of Santa Clara’s

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website lists the San Jose Mercury News as a newspaper of general publication,

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http://www.scscourt.org/forms_and_filing/forms/PB-4000.pdf. Thus, the Court finds that the San

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Jose Mercury News is a proper newspaper for publication of service.

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III.

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CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for service by publication is GRANTED.

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Publication shall be made in the San Jose Mercury News once a week for four weeks. Plaintiffs

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have six weeks from the date of this order to complete service by publication. If Anthony Yi’s

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Case No. 16-CV-03957-LHK
ORDER AUTHORIZING SERVICE BY PUBLICATION

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address is ascertained prior to the expiration of the time prescribed for publication of the

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summons, a copy of the summons and complaint and of the order for publication shall

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immediately be served on Anthony Yi. This order does not preclude service upon Anthony Yi in

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any other manner specified in the California Code of Civil Procedure § 415.10 through § 415.30.

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IT IS SO ORDERED.

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Dated: November 7, 2016
______________________________________
LUCY H. KOH
United States District Judge

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United States District Court
Northern District of California

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Case No. 16-CV-03957-LHK
ORDER AUTHORIZING SERVICE BY PUBLICATION