1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 ORLANDO GARCIA, Case No. 21-cv-06451-MMC

8 Plaintiff, ORDER DENYING PLAINTIFF'S 9 v. APPLICATION FOR ORDER FOR PUBLICATION OF SUMMONS; 10 REZA SAFFARIAN, DEFERRING RULING ON ORDER TO SHOW CAUSE; DIRECTIONS TO 11 Defendant. PLAINTIFF

12

13 By order filed February 7, 2022, the Court directed plaintiff Orlando Garcia 14 (“Garcia”) to show cause why the above-titled action should not be dismissed for failure 15 to prosecute. (See Doc. No. 10 (“February 7 Order to Show Cause”).) On February 25, 16 2022, Garcia filed both a Response, whereby he asserts he has been unable to serve 17 defendant Reza Saffarian (“Saffarian”) (see Doc. No. 12), and an Application, whereby he 18 seeks a court order authorizing service by publication (see Doc. No. 13). Having read 19 and considered the papers filed in support of the Response and the Application, the 20 Court rules as follows. 21 A. Legal Standard 22 Under Rule 4(e)(1) of the Federal Rules of Civil Procedure, an individual 23 defendant may be served with process in accordance with the law “in the state where the 24 district court is located or where service is made.” California law, in turn, provides that 25 “[a] summons may be served by publication if upon affidavit it appears to the satisfaction 26 of the court . . . [1] that the party to be served cannot with reasonable diligence be served 27 in another manner specified in this article and [2] that . . . [a] cause of action exists 1 B. Reasonable Diligence 2 Garcia has submitted a declaration from his counsel, along with supporting 3 exhibits, describing his attempts to serve process on Saffarian in the following manner. 4 By using a skip tracing database and a property database search engine (see Decl. of 5 Christopher A. Seabock in Supp. of Appl. to Serve by Publication (“Seabock Decl.”) ¶ 3), 6 he discovered “Saffarian owns the real property . . . upon which the business ‘EZ 7 Laundry’ operates,” and also obtained a mailing address and two e-mail addresses listed 8 for Saffarian (see id. ¶¶ 4-5). He then hired a process server, who, on numerous 9 occasions, unsuccessfully attempted to effectuate service at the mailing address (see id. 10 ¶ 6, Ex. 1), as to the last of which the process server noted: “I spoke with a neighbor who 11 says subject resides. It was reported the family is out of the Country and does not know 12 when they will return.” (See id. Ex. 1 at 4 (“Declaration of Non Service”).) Thereafter, he 13 sent notices of acknowledgment and receipt to Saffarian’s mailing address and the two e- 14 mail addresses. (See id. ¶¶ 7-8, Exs. 2-3.) Based on the above, said counsel asserts 15 Saffarian’s “whereabouts are currently unknown[,] and counsel has been unable to locate 16 any additional addresses for [Saffarian].” (See id. ¶ 9.) 17 To determine whether a plaintiff has exercised “reasonable diligence,” a court 18 must examine whether the plaintiff “took those steps which a reasonable person who truly 19 desired to give notice would have taken under the circumstances.” See Donel, Inc. v. 20 Badalian,

(1978). Reasonable diligence “denotes a thorough, 21 systematic investigation and inquiry conducted in good faith by the party or his agent or 22 attorney.” See Kott v. Superior Court,

(1996). “Before 23 allowing a plaintiff to resort to service by publication, . . . courts necessarily require him to 24 show exhaustive attempts to locate the defendant, for it is generally recognized that 25 service by publication rarely results in actual notice.” Watts v. Crawford,

, 26 479 n.5 (1995) (internal quotation and citation omitted). 27 Here, although Garcia has shown more than a cursory effort to serve, entitlement 1 the defendant,” see

and, as discussed below, Garcia has failed to make the requisite 2 showing. 3 First, there is no indication that Garcia, either with or without professional 4 assistance, has sought out, let alone consulted, any other “likely sources of information” 5 that “must be searched before resorting to service by publication,” including Saffarian’s 6 “relatives, friends, . . . acquaintances, or . . . employer.” See Kott,

1137; see also Castiollo-Antonio v. Azurdia, Case No. C-13-05709 DMR,

7206609, at *4 (N.D. Cal. Dec. 18, 2014) (noting “hiring a private investigator is one of 9 the measures a plaintiff should take before requesting service by publication”). 10 Further, although Garcia asserts Saffarian owns the property on which EZ Laundry 11 operates, he has not attempted service at that location, personal or otherwise, see Cal. 12 Code Civ. P. § 415.20(b) (providing procedure for substituted service), nor has he asked 13 EZ Laundry employees or other persons present at that location about Saffarian’s 14 whereabouts, see Garcia v. Clement-Rorick, Case No. 21-cv-05037-TSH,

137630, at *2 (N.D. Cal. Jan. 14, 2022) (denying request for service by publication where 16 plaintiff did not attempt service at business owned by defendant).1 17 Lastly, Garcia’s counsel has only recently attempted to serve Saffarian by mail, 18 and the deadline has not yet passed for Saffarian to return the acknowledgment of 19 receipt without becoming liable for costs of service. (See Seabock Decl. ¶ 7-8 (asserting 20 counsel sent notices of acknowledgment and receipt on February 23, 2022)); see also 21 Cal. Code Civ. P. § 415.30 (providing 20-day deadline for defendant to return 22 acknowledgment form without becoming liable for costs of service). 23 Accordingly, Garcia has not established reasonable diligence in attempting to 24 serve process on Saffarian. 25

26 1 Although, from the record presented thus far, it is not clear whether Saffarian owns EZ Laundry or only the property on which it is located, “it seems reasonable to 27 attempt service there” or at least “learn of [his] whereabouts by asking employees and 1 C. Affidavit Supporting Cause of Action 2 “An application for an order of publication must be accompanied by an affidavit 3 || stating facts from which the trial court can draw the conclusion that the plaintiff has a 4 || cause of action against the defendant.” Rios v. Singh,

, 884 (2021). 5 || “This is a jurisdictional prerequisite to the issuance of an order of publication.”

6 Here, as noted, Garcia has submitted a declaration from his counsel in support of 7 || the instant application. The declaration, however, contains no “independent evidentiary 8 || support, in the form of a sworn statement of facts, to support a cause of action against 9 [Saffarian],” see Castillo-Antonio v. AZurdia, Case No. C-13-05709 DMR,

|} 4060219, at *2 (N.D. Cal. Aug. 14, 2014) (internal quotation and citation omitted), nor 11 does Garcia’s counsel purport to have “personal knowledge” of those facts, see 12 Malachowski v. Doheny, Case No. 21-cv-05751-VKD,

, at *2 (N.D. Cal. 5 13 |} Nov. 30, 2021) (noting “affidavit in support of . . . request for service by publication must 14 || state facts based on personal knowledge and not on mere hearsay” (internal quotation 15 || and citation omitted)). é 16 Accordingly, Garcia has not shown by affidavit that a cause of action exists against 17 || Saffarian. 5 18 || D. Conclusion 19 For the reasons stated above, Garcia's application is hereby DENIED. Such 20 denial, however, is without prejudice. Additionally, the Court DEFERS ruling on its 21 February 7 Order to Show Cause, to afford Garcia a further opportunity to effectuate 22 service by serving Saffarian, no later than April 6, 2022, with a copy of the summons and 23 complaint, and to file, no later than April 7, 2022, proof of such service. 24 IT IS SO ORDERED. 25 26 || Dated: March 4, 2022 ball Cate INE M. CHESNEY 27 United States District Judge 28