Denham v. Aranda et al

Filing 68

ORDER denying 67 Motion for Rehearing on Motion Requesting CDCR to Provide Full Legal Names of Defendants; and the USDC Clerk to Serve Defendants by Publication. Signed by Magistrate Judge William V. Gallo on 6/9/11. (All non-registered users served via U.S. Mail Service)(lmt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PAUL DENHAM,

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Plaintiff,

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v.

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ARANDA, et al.,

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Defendants.

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Civil No. 09-1505-JLS(WVG)
ORDER DENYING MOTION FOR
REHEARING OF MOTION REQUESTING
CDCR TO PROVIDE FULL LEGAL
NAMES OF DEFENDANTS ARANDA AND
BENVIN; AND ORDER THE USDC
CLERK TO SERVE DEFENDANTS
ARANDA AND BENVIN BY
PUBLICATION
(DOC. # 67)

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On May 16, 2011, the Court denied Plaintiff’s Motion For

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Order For CDCR To Provide Full Legal Names of Aranda and Benvin And

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Order the USDC Clerk To Serve Defendants Aranda and Benvin By

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Publication. On June 6, 2011, Plaintiff filed a Motion for Rehearing

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of that Motion. The Court construes the June 6, 2011 Motion to be a

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Motion for Reconsideration.

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In the June 6, 2011 Motion, Plaintiff argues that the Court’s

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May 16, 2011 order unreasonably applied state law and will cause him

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prejudice in not being able to serve Defendants Aranda and Benvin

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(hereafter “Defendants”).

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09cv1505

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Procedural History

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On July 10, 2009, Plaintiff filed a Complaint Under The Civil

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Rights Act, 42 U.S.C. §1983.

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Plaintiff’s Motion to Proceed in forma pauperis, and directed the

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United States Marshal to effect service of summons and complaint on

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Defendants. On October 27, 2009, the summonses served on Defendants

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Aranda and Benvin were returned unexecuted.1/

On August 31, 2009, the Court granted

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On December 4, 2009, Defendants served and filed a Motion to

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Dismiss Plaintiff’s Complaint. On May 3, 2010, this Court filed a

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Report and Recommendation Granting Defendants’ Motion to Dismiss. On

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June 21, 2010, the District Judge assigned to this case adopted the

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Report and Recommendation and allowed Plaintiff to file a First

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Amended Complaint. On July 30, 2010, Plaintiff filed a First Amended

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Complaint.

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On August 12, 2010, Defendants filed a Motion to Dismiss

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Plaintiff’s First Amended Complaint. On December 30, 2010, this

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Court filed a Report and Recommendation Granting in part and Denying

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in part Defendants’ Motion to Dismiss. On February 4, 2011, the

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District

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Recommendation.

Judge

assigned

to

this

case

adopted

the

Report

and

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On March 16, 2011, Plaintiff filed a Motion for Court Order

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for Substituted Service on the Secretary of State for Defendants

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Aranda and Benvin.

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Leave of Court for Enlargement of Time To Complete Service on

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Defendants, and for a Court Order For Substituted Service on the

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Attorney General and/or the Secretary of State or the California

On March 21, 2011, Plaintiff filed Motions for

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On October 27, 2009, the summons served on Defendant Silvia Garcia
also was returned unexecuted. On May 16, 2011, Ms. Garcia’s attorney
waived the service of summons on her behalf.

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09cv1505

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Department of Corrections and/or Litigation Coordinator at Donovan

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State Prison.

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On March 25, 2011, the Court granted in part the motions

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noted in the preceding paragraph. The March 25, 2011 Order directed

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Defendants’ counsel to provide the last known addresses of Defen-

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dants Aranda and Benvin to the United States Marshal in a confiden-

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tial memorandum and for the United States Marshal to serve those

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Defendants at their last known addresses, as contained in the

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confidential

memorandum,

with

summonses

and

Plaintiff’s

First

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Amended Complaint. On April 28 and May 2, 2011 respectively, the

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summonses for Aranda and Benvin were returned unexecuted.

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On May 12, 2011, Plaintiff filed a Motion to Serve Defendants

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By Publication. On May 16, 2011, the Court denied the Motion.

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Plaintiff now seeks reconsideration of that Order.

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Discussion

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Plaintiff

that

the

Court’s

May

16,

2011

Order

misinterpreted California law. However, Plaintiff is mistaken.

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argues

California

Code

of

Civil

Procedure

§

415.50

states

in

pertinent part:

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(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 in this article...
(emphasis added)

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In order for Plaintiff to invoke California Code of Civil
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Procedure §415.50, he must show that he has exercised reasonable
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diligence to locate the person whom he wishes to serve, in order to
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give that person notice of the action before resorting to the notice
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afforded by publication. Donel v. Badalian, 87 Cal. App. 3d 327, 332
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(1978).
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09cv1505

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When notice is a person’s due, process which a mere
gesture is not due process. The means employed must be
such as one desirous of actually informing the
absentee might reasonably adopt to accomplish it. The
reasonableness... of any chosen method may be defended
on the ground that it is itself reasonably certain to
inform those affected, or where conditions do not
reasonably permit such notice, the that form chosen is
not substantially less likely to bring home notice
than other of feasible and customary substitutes.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315

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(1950)(citations omitted)(emphasis added).

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“When substituted or constructive service is attempted,

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strict compliance with the letter and spirit of the statutes is

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required.” Kott v. Superior Court, 45 Cal. App. 4th 1126, 1137

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(1996)[citing Olvera v. Olvera, 232 Cal. App. 3d 32, 41 (1991)].

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“Reasonable diligence” in attempting to locate a party to be

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served

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denotes a thorough, systematic investigation and
inquiry in good faith by the party... a number of
honest attempts to learn (a) defendant’s whereabouts
or his address by inquiry of relatives, friends and
acquaintances, or of his employer, and by investigation of appropriate city and telephone directories,
the voters’ register, and the real and personal
property index... near the defendant’s last known
address, are generally sufficient. These are likely
sources of information, and consequently must be
searched before resorting to service by publication.
Kott, 45 Cal. App. 4th at 1137. (emphasis added).

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A pro se Plaintiff proceeding in forma pauperis is entitled

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to rely on the U.S. Marshal for service of the summons and com-

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plaint.

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abrogated on other grounds by Sandin v. Conner,515 U.S. 472 (1995);

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Moody v. Finander, 2010 WL 2354586 at *3 (S.D. Cal. 2010); McKenzie

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v. Hernandez, 2010 WL 685005 (S.D. Cal. 2010).

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Plaintiff proceeding in forma pauperis “ ‘may not remain silent and

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do nothing to effectuate service (on a defendant)’, rather, ‘(a)t a

Walker

v.

Sumner,

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F.3d

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1415,

1422

(9th

Cir.

1994)

However, a pro se

09cv1505

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minimum, (he) should request service upon the... defendant and

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attempt to remedy any apparent defects of which (he) has knowl-

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edge.’”

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2010)[quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987)].

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Here, Plaintiff’s application to serve the Defendants by

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publication is deficient. Plaintiff has failed to show that he

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exercised reasonable diligence in locating the Defendants. There-

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fore, any judgment against the Defendants based on service by

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publication

Moore

v.

would

Lacy,

be

2010

void.

WL

5644658

Olvera,

232

at

Cal.

*7

App.

(S.D.

3d

Cal.

at

41.

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Moreover, Plaintiff has not performed (or had someone perform on his

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behalf) an appropriate investigation into public records, as noted

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in

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publication would be proper.

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any authority, nor has the Court found any authority, to suggest

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that the U.S. Marshal must perform that investigation. Consequently,

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it does not appear to the satisfaction of the Court that Plaintiff

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has strictly complied with the letter and spirit of California Code

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of Civil Procedure § 415.50.

Kott,

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As

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DATED:

a

might

result,

be

deemed

sufficient

before

service

by

Moreover, Plaintiff has not presented

Plaintiff’s

Motion

for

Reconsideration

DENIED.

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which

June 9, 2011

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Hon. William V. Gallo
U.S. Magistrate Judge

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09cv1505

is