Garcia v. Clement-Rorick

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 ORLANDO GARCIA, Case No. 21-cv-05037-TSH 8 Plaintiff, ORDER GRANTING SECOND 9 v. MOTION FOR SERVICE BY PUBLICATION 10 ROXANNE CLEMENT-RORICK, Re: Dkt. No. 21 11 Defendant. [12] 13 I. INTRODUCTION 14 Plaintiff Orlando Garcia seeks leave to serve Defendant Roxanne Clement-Rorick by 15 publication. ECF No. 21. No opposition has been received. The Court finds this matter suitable 16 for disposition without oral argument. See Civ. L.R. 7-1(b). Having considered Garcia’s request, 17 the relevant legal authority, and the record in this case, the Court GRANTS his motion for the 18 following reasons.1 19 II. BACKGROUND 20 Garcia is a California resident with physical disabilities who requires a wheelchair for 21 mobility. Compl. ¶ 1, ECF No. 1. In May 2021 he went to Café Eritrea D’Afrique, located at 22 4069 Telegraph Avenue, Oakland, California. Id. ¶ 8. Defendant Roxanne Clement-Rorick, as 23 Trustee of The Rorick Trust dated October 19, 1995, owns the property. Id. ¶ 3. On the date of 24 his visit, Garcia found the café did not have wheelchair accessible paths of travel, the ramp that 25 runs up to the entrance did not have a level landing, and the pathway inside the business had a [26] 1 On February 22, 2022, the Court ordered Garcia to show cause why this case should not be [27] dismissed for failure to prosecute and failure to comply with court deadlines after he failed to 1 path of travel width of about 33 inches, which is not accessible for wheelchair users. Id. ¶¶ 10-12. 2 Garcia filed this case on June 30, 2021, seeking injunctive relief under the Americans with 3 Disabilities Act, 42 U.S.C. §§ 12101 , et seq., and statutory damages under the Unruh Civil Rights 4 Act, Cal. Civ. Code §§ 51-53 . Compl. ¶¶ 22-32. 5 On August 27, 2021, Garcia requested an additional 90 days to complete service upon 6 Clement-Rorick. ECF No. 8. Garcia stated he had been unable to effectuate personal service due 7 to COVID-19 restrictions in the Northern District, but he had recently discovered new information 8 and anticipated that service could be completed shortly. The Court granted Garcia’s request and 9 extended the service deadline to November 26. ECF No. 9. However, as of December 1, there 10 had been no further docket activity, and the Court therefore ordered Garcia to file a status report 11 by December 8. ECF No. 10. In response, Garcia filed a “Service Attempts Status Report,” 12 which did not provide an updated status but merely attached exhibits showing service attempts 13 through November. ECF No. 12. Although Garcia did not request a further extension or other 14 type of relief, the Court extended the service deadline to January 6, 2022. ECF No. 13. 15 On December 30, 2021, Garcia filed his first motion for service by publication, stating that 16 his counsel searched business and property records and found the following mailing addresses for 17 Clement-Rorick: 18 • 2640 Silvercrest St., Pinole, Ca 94564-1141 19 • 1419 Oxford St., Berkeley, Ca 94709 20 First Mot. at 2, ECF No. 14; Zaman Decl. ¶ 7, ECF No. 14-2. Counsel hired a process service 21 company to serve Clement-Rorick at these addresses, but it was unsuccessful. Zaman Decl. ¶¶ 722 8. Counsel also sent the service company to the address of Clement-Rorick’s relative, Naruemon 23 Rorick, at 121 Gary Cir., Vallejo, CA 94591-8228, to inquire about her whereabouts, but “[t]he 24 attempt to enquire turned futile as the property showed no occupancy or movement.” First Mot. at 25 3; Zaman Decl. ¶ 9. Counsel also mailed notices of acknowledgements and receipts to all three 26 addresses, but there had been no response. First Mot. at 3; Zaman Decl. ¶ 12. As part of his 27 motion, Garcia stated that he also attempted to serve Clement-Rorick by email, First Mot. at 4, but 1 sought to serve Clement-Rorick by publication in the West County Times, located at 1050 Marina 2 Way So. Richmond, CA. 94804. 3 On January 14, 2022, the Court denied Garcia’s first motion, finding he failed to establish 4 reasonable diligence in his attempts to serve Clement-Rorick for two reasons: (1) although 5 Clement-Rorick owns Café Eritrea D’Afrique and the café’s website showed that it was open for 6 business, there was no indication he attempted service there, personal or otherwise; and (2) while 7 Garcia stated he attempted service by email, he did not provide the email address or a record of 8 any such attempt. ECF No. 15; Garcia v. Clement-Rorick, 2022 WL 137630 , at *2 (N.D. Cal. Jan. 9 14, 2022). The Court also noted its hesitancy to permit such service because “it is generally 10 recognized that service by publication rarely results in actual notice.” Id. at *2 (citing Watts v. 11 Crawford, 10 Cal. 4th 743 , 749 n.5 (1995)). 12 Garcia filed the present motion on March 24, 2022. In addition to the service attempts 13 above, Garcia states his counsel “conducted an investigation to find out the whereabouts of the 14 Defendant at one of the addresses from the employees who revealed that the Defendant was not 15 employed any more.” Vento Decl. ¶ 13, ECF No. 21-2. Garcia also provided a copy of an 16 investigation report conducted by his investigator, Laketha Parker Rodrigues, who went to the café 17 and reported: “I spoke with an individual who indicated they were the zimam gabreab/owner and 18 they stated subject no longer employed. Subject is unknown.” Id. ¶ 14 & Ex. 3 ECF No. 21-6. 19 Counsel has been unable to locate any additional addresses for Clement-Rorick. Vento Decl. ¶ 15. 20 III. LEGAL STANDARD 21 Service upon an individual defendant in a judicial district of the United States may be 22 effected pursuant to the state law where the district court is located or where service is made. Fed. 23 R. Civ. P. 4(e)(1). Under California law, service by publication is permissible when: 24 (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 25 that the party to be served cannot with reasonable diligence be served in another manner specified in this article and that either: [26] (1) A cause of action exists against the party upon whom service is to 27 be made or he or she is a necessary or proper party to the action. 1 diligence” be served by another available method. Felix v. Anderson, 2015 WL 545483 , at *2 2 (N.D. Cal. Feb. 9, 2015). 3 To determine whether a plaintiff has exercised reasonable diligence, a court must examine 4 the affidavit to see whether the plaintiff “took those steps a reasonable person who truly desired to 5 give notice would have taken under the circumstances.” Donel, Inc. v. Badalian, 87 Cal. App. 3d 6 327, 333 (1978). Reasonable diligence “denotes a thorough, systematic investigation and inquiry 7 conducted in good faith by the party or his agent or attorney.” Watts, 10 Cal. 4th at 749 n.5 8 (citation omitted). Before allowing a plaintiff to resort to service by publication, the courts must 9 require him to show “exhaustive” attempts to locate the defendant. Id. (citations omitted). 10 Because of due process concerns, service by publication should be allowed only “as a last 11 resort.” Donel, 87 Cal. App. 3d at 333 . That a plaintiff has taken one or a few reasonable steps 12 does not necessarily mean that “all myriad of other avenues” have been properly exhausted to 13 warrant service by publication. Id. But a plaintiff will generally satisfy his burden through “[a] 14 number of honest attempts to learn defendant’s whereabouts or his address by inquiry of relatives, 15 friends, and acquaintances, or of his employer, and by investigation of appropriate city and 16 telephone directories, the voters’ register, and the real and personal property index in the 17 assessor’s office, near the defendant’s last known location[.] Kott v. Superior Ct., 45 Cal. App. 18 4th 1126, 1137 (1996). “These are likely sources of information, and consequently must be 19 searched before resorting to service by publication.” Id. 20 If a party can show reasonable diligence, they must also show that a “cause of action exists 21 against the party upon whom service is to be made or he or she is a necessary or proper party to 22 the action.” Cal. Civ. Proc. Code § 415.50 (a)(1). The party must offer “independent evidentiary 23 support, in the form of a sworn statement of facts, for the existence of a cause of action against the 24 defendant.” Cummings v. Brantley Hale, 2016 WL 4762208 , at *2 (N.D. Cal. Sept. 13, 2016) 25 (citing McNamara v. Sher, 2012 WL 760531 , at *4 (S.D. Cal. Mar. 8, 2012)); see also Zhang v. 26 Tse, 2012 WL 3583036 , at *3 (N.D. Cal. Aug. 20, 2012) (collecting cases). [27] 1 IV. DISCUSSION 2 A. Reasonable Diligence 3 Although service by publication is a method of last resort, the Court is satisfied that Garcia 4 is unable to locate a current address for Clement-Rorick, despite reasonable diligence. Without 5 such information, Garcia cannot serve Clement-Rorick by other methods, such as personal service, 6 substitute service, or service by mail. The record indicates that Garcia’s counsel has conducted a 7 public records search, hired a process server that attempted service at multiple addresses without 8 success, and located one of Clement-Rorick’s relatives and attempted to find her whereabouts 9 through them. After the Court denied his previous motion, Garcia’s counsel also conducted an 10 investigation at Café Eritrea D’Afrique but was told Clement-Rorick was no longer employed 11 there. While it is conceivable that Garcia could do more, the Court recognizes that reasonable 12 diligence does not require him to “leave no stone unturned.” Cummings, 2016 WL 4762208 , at 13 *2. Under these circumstances, the Court finds Garcia has made reasonably diligent attempts to 14 locate and serve Clement-Rorick. 15 B. Cause of Action or Necessary or Proper Party 16 Garcia has also demonstrated that he has a claim against Clement-Rorick. Garcia’s 17 counsel attests that the firm’s investigators were directed to visit the subject property and to 18 inspect and photograph it, and this investigation “confirmed my client’s allegations that there were 19 unlawful architectural barriers at the subject business property that violated the Americans with 20 Disabilities Act and the California Unruh Civil Rights Act, as pled in the complaint.” Vento Decl. 21 ¶ 3. Garcia also attests that Clement-Rorick owns the real property that is the subject of this 22 action, and he has submitted a Deed of Trust showing this ownership. Id. ¶ 5 & Ex. 1 (Deed of 23 Trust), ECF No. 21-3. Thus, the Court finds Garcia has also satisfied this requirement for service 24 by publication. See Block v. Hernandez Madrigal, 2021 WL 5991732 , at *3 (N.D. Cal. Nov. 4, 25 2021) (finding plaintiff satisfied the requirement for service by publication where she submitted 26 grant deed that showed defendants owned the subject property). 27 Accordingly, Garcia’s motion for leave to serve Clement-Rorick by publication is granted. 1 C. Method of Service 2 As Garcia has satisfied the requirements of section 415.50, he is entitled to effectuate 3 service by publication “in a named newspaper, published in this state, that is most likely to give 4 actual notice to the party to be served.” Cal. Civ. Proc. Code. § 4150.50(b). Garcia states he 5 intends to publish summons in the West County Times. However, as of April 2016, the West 6 County Times stopped publishing and became part of the East Bay Times. See 7 https://www.eastbaytimes.com/; https://www.mondotimes.com/1/world/us/5/11470/33118; 8 https://en.wikipedia.org/w/index.php?title=West_County_Times&redirect=no (redirecting to East 9 Bay Times page, https://en.wikipedia.org/wiki/East_Bay_Times). Both this Court and others have 10 found the East Bay Times is a newspaper that is most likely to give actual notice. See Macias v. 11 Fasail, 2020 WL 2542028 , at *4 (N.D. Cal. May 19, 2020) (granting motion for service by 12 publication in East Bay Times once a week for four weeks); United States v. Benson, 2019 WL 13 6612246, at *3 (N.D. Cal. Dec. 5, 2019) (same). Therefore, the Court finds that the East Bay 14 Times is a proper newspaper for publication of service. 15 V. CONCLUSION 16 Based on the analysis above, Garcia’s motion for leave to serve Clement-Rorick by 17 publication is GRANTED as follows: 18 1. Good cause appearing, the Court extends the deadline for service of process on Clement19 Rorick to June 3, 2022. Fed. R. Civ. P. 4(m). 20 2. Publication shall be made in the East Bay Times once per week for four successive 21 weeks. See Cal. Civ. Proc. Code § 415.50 (c); Cal. Gov’t Code § 6064. 22 3. If Clement-Rorick’s address is ascertained prior to the expiration of the time prescribed 23 for publication of the summons, a copy of the summons and complaint and of this order for 24 publication shall immediately be served on her. This order does not preclude service upon 25 Clement-Rorick in any other manner specified in the California Code of Civil Procedure sections 26 415.10 through 415.30. 27 4. Garcia must mail a copy of this order, addressed to Roxanne Clement-Rorick, to the 1 e 4069 Telegraph Avenue, Oakland, CA 94609 2 e 2640 Silvercrest St., Pinole, CA 94564-1141 3 e 1419 Oxford St., Berkeley, CA 94709 4 e 121 Gary Cir., Vallejo, CA 94591-8228 5 After mailing, Garcia shall file proof of service. 6 IT IS SO ORDERED. [7] 8 Dated: April 19, 2022 5 TAA. |p THOMAS S. HIXSON 10 United States Magistrate Judge ll a 12 [16] € = 17 [6] Zz 18