Robinson v. Gonzalez
- Thomas Hixson
- 3:24-cv-06247
- U.S. District Court · Northern District of California
- 5
In Robinson v. Gonzalez, Judge Hixson denied without prejudice a request to serve Gonzalez by newspaper publication because the required affidavit was missing.
David Robinson may renew his request to serve Iztaccuauhtli Gonzalez by publication, but the renewed motion must include a sworn affidavit of facts supporting a legal claim against Gonzalez. The ruling concerned service of process and did not decide the underlying disability-related claims.
What happened
In Robinson v. Gonzalez, David Robinson asked to serve Iztaccuauhtli Gonzalez by publishing the summons in the East Bay Times. Robinson said he had been unable to serve Gonzalez personally or by mail after attempts at business and residential addresses.
The court found that Robinson had used reasonable diligence to locate and serve Gonzalez. But California law also required a sworn statement of facts supporting the existence of a legal claim against Gonzalez, and Robinson had not provided that affidavit.
Judge Hixson denied the motion without prejudice, meaning Robinson may file a renewed motion. The renewed motion may rely on earlier filings showing his diligence, but it must include the required affidavit.
The detailed version
- Robinson v. Gonzalez · No. 3:24-cv-06247
- Thomas Hixson
- Feb. 3, 2025
Background
David Robinson sued Iztaccuauhtli Gonzalez and others, seeking an injunction under the Americans with Disabilities Act and statutory damages under California's Unruh Civil Rights Act. Robinson alleged that accessible parking spaces at a Farmers Insurance property lacked required signs, pavement markings, and a van-accessible access aisle, and that the pavement was severely damaged.
Robinson moved for permission to serve Gonzalez by publishing the summons in the East Bay Times. He reported that attempts to serve the defendants at their business locations were unsuccessful, mailed service-waiver documents were not returned, and five attempts to serve Gonzalez at a residential address in Pittsburg, California, also failed.
Legal standard
Under Federal Rule of Civil Procedure 4 and California law, service by publication is allowed only when the defendant cannot be served by another available method with “reasonable diligence.” The plaintiff must also show, through an affidavit containing sworn facts, that a legal claim exists against the defendant or that the defendant is a necessary or proper party. Because publication may provide less direct notice, courts treat it as a last resort.
Court’s analysis
The court found that Robinson had satisfied the reasonable-diligence requirement. His counsel attempted service at Gonzalez's business address, mailed the summons and service-waiver documents, researched other possible addresses, and arranged five service attempts at a residential address whose title listed Gonzalez's name. The court concluded that these efforts were enough, even though continued efforts might have been possible.
The court nevertheless found that Robinson had not supplied the required independent evidentiary support in the form of a sworn affidavit of facts showing that a legal claim existed against Gonzalez. The court stated that a complaint alone did not satisfy California's affidavit requirement for service by publication.
Disposition
The court denied Robinson's motion for service by publication without prejudice for failure to provide the required affidavit. Robinson may file a renewed motion, and that motion may incorporate by reference his earlier filings concerning reasonable diligence.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.