United States of America v. 1442 N. 8th Street, Fresno, California et al

Filing 17

Memorandum Opinion and Order granting 15 Motion for Substituted Service..Plaintiff is to publish the summons in the San Francisco Chronicle in compliance with Section 6064 of the California Government Code. Should Vongphachanh's address be ascertained prior to expiration of the time prescribed for the publication of the summons, the summons, complaint and order for publication shall be mailed to such address.l (Ordered by Judge John McBryde on 6/22/2015) (wrb)

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IN THE UNITED STATES DISTRI T COU~ -- --- NORTHERN DISTRICT OF T XAS L 'JUN 2 2 2015
FORT WORTH DIVISIO
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UNITED STATES OF AMERICA,
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Plaintiff,

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§
§

vs.

§

NO. 4:14-CV-852-A

§

REAL PROPERTY KNOWN AS
1442 N. 8TH STREET, FRESNO,
CALIFORNIA, INCLUDING ALL
BUILDINGS, APPURTENANCES, AND
IMPROVEMENTS LOCATED THEREON;
ET AL.,

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Respondents in Rem.

§

MEMORANDUM OPINION
and
ORDER
Before the court for decision is the motion for constructive
service of direct notice to a potential claimant in a forfeiture
action filed by plaintiff, the United States of America, on June
16, 2015.

After having considered such motion, the affidavit

filed in support thereof, and applicable legal authorities, the
court has concluded that the motion should be granted.
I.

Plaintiff's Motion and Supporting Affidavits
The above-captioned action is a complaint for forfeiture
against various properties pursuant to 21 U.S.C.

§§

881(a) (6) and

(7).

In accordance with Rule G(4) (b) of the Supplemental Rules,

plaintiff sought to give notice of the above-captioned action to
all known potential claimants.

Supp. R. for Admiralty or Mar.

Claims and Asset Forfeiture Actions G(4) (b).
Vongphachanh ("Vongphachanh")

Khamsouk

is one such potential claimant.

Plaintiff mailed Vongphachanh direct written notice of the
complaint for forfeiture on October 31, 2014.

However due to a

defect, the notice and complaint were re-sent on May 12, 2015.
The time for Vongphachanh to file a claim pursuant to such notice
has passed.
In support of its motion, plaintiff submitted the affidavit
of Edward Barrett ("Barrett"), who is assigned to the Dallas
Field Division Office as a federally deputized Task Force
Officer.

In his affidavit, Barrett stated that

(1) on

December 17, 2013, DEA agents/officers attempted to locate
Vongphachanh and arrest him pursuant to an arrest warrant;

(2)

they searched several properties, including the properties where
notice was sent to Vongphachanh, but he could not be located;
Vongphachanh was declared a fugitive in April 2014;

(4) DEA

agents/officers attempted to ascertain whether Vongphachanh

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(3)

returned to his native country of Laos but were unable to
determine his location; and (5} Vongphachanh's location is
presently unknown.
Because Vongphachanh's location is presently unknown,
plaintiff requested the court to order constructive notice of the
complaint pursuant to California law.

Plaintiff requested the

court find that plaintiff has previously served Vongphachanh
under Cal. Civ. P. Code

§

415.45, or, in the alternative,

authorize plaintiff to serve Vongphachanh under Cal. Civ. P. Code
§

415.50.
II.

Analysis
A.

Law Pertaining to Substituted Service
In order to initiate a civil forfeiture action against real

property, plaintiff must file a complaint for forfeiture, post a
notice of the complaint on the property, and serve such notice on
the property owner along with a copy of the complaint.
§

985 (c) (1}.

18 U.S.C.

Such notice "must be sent by means reasonably

calculated to reach the potential claimant."

Supp. R. for

Admiralty or Mar. Claims and Asset Forfeiture Actions
G(4} (b) (iii} (A}.

However, if a property owner cannot be so

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served because he is a fugitive,

•constructive service may be

made in accordance with the laws of the state in which the
property is located."

18 U.S.C. § 985(c) (2).

All of the

property subject to this action is located in California.
California law provides that a summons may be served by
publication,
if 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 and that .
(2)The party to be served has or claims an interest in
real or personal property in [California] that is
subject to the jurisdiction of the court or the relief
demanded consists wholly or in part in excluding the
party from any interest in the property.
Cal. Civ. P. Code§ 415.50(a)
B.

(West 2004).

Application of Law to Facts
The Supplemental Rules require notice to be sent "by means

reasonably calculated to reach the potential claimant."

Supp. R.

for Admiralty or Mar. Claims and Asset Forfeiture Actions
G(4) (b) (iii) (A).

Sending notice to the last address that

Vongphachanh gave to the DEA would not be so calculated, because
the DEA has knowledge that Vongphachanh is no longer at that
address.
The civil forfeiture statute specifically provides that
where a potential claimant cannot be served because he is a

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fugitive,

such claimant may be served with notice according to

the laws of the state in which the property is located, in this
instance, California.

18

u.s.c.

§985 (c) (2).

Plaintiff requested

that the court order service pursuant to Cal. Civ. P. Code §
415.45 (West), however that section of the Code is specifically
relevant to unlawful detainer actions and plaintiff makes no
argument that California law authorizes parties in other types of
suits to use that manner of service.'

Instead, the California

Civil Procedure Code provides for substituted service by
publication.

Cal. Civ. P. Code § 415.50

(West 2004).

In this instance, substitute service by publication is
appropriate because Vongphachanh cannot be served by any other
method specified in Article 3 of the California Code of Civil
Procedure.

Because the location of Vongphachanh is unknown, he

cannot be personally served under Cal. Civ. P. Code§ 415.10
(West)

Furthermore, his office, usual mailing address, dwelling

house, and usual place of abode are also unknown, so service
cannot be accomplished per Cal. Civ. P. Code § 415.20 (West

'Text of§ 4 I 5.45 reads in pertinent part that:
(a) A summons in an action for unlawful detainer of real prope1ty may be served by
posting 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 any
manner specified in this article other than publication ....
Cal. Civ. P. Code§ 4 I 5.45 (West).
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2004).

For the same reason, service by mail pursuant to Cal.

Civ. P. Code § 415.30

(West)

is unavailable.

Therefore, the only

remaining method of service under California law is publication
under Cal. Civ. P. Code § 415.50 (West 2004).

Furthermore, this

action is one wherein Vongphachanh is a potential claimant to the
real property at issue and the relief demanded would exclude him
from such property. Id.

For that reason, constructive service by

publication is appropriate under California law.
Service by publication must be made in the newspaper that is
"most likely to give actual notice to [him]
P. Code§ 415.50

(West 2004).

"

Cal. Civ.

Barrett's affidavit stated that,

as near as the DEA could tell, Vongphachanh has not returned to
his native country of Laos.
Fresno, California.

Vongphachanh's wife was still in

All of the property subject to this suit is

in Fresno or Mariposa, California.

Plaintiff represented that

the San Francisco Chronicle is the publication most likely to
give notice to someone in that part of California.

For that

reason, the court finds that the San Francisco Chronicle is the
newspaper most likely to give actual notice to Vongphachanh of
this suit, and for that reason, service by publication should be
made in that newspaper.

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III.

Order
Therefore,
The court ORDERS that plaintiff's motion for substituted
service be, and is hereby, granted.
The court further ORDERS that plaintiff is to publish the
summons in the San Francisco Chronicle in compliance with Section
6064 of the California Government Code.
The court further ORDERS that should Vongphachanh's address
be ascertained prior to the expiration of the time prescribed for
publication of the summons, the summons, complaint, and order for

Distr/t,Judge

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