Robinson v. Gonzalez

Background

David Robinson brought claims seeking injunctive relief under the Americans with Disabilities Act and statutory damages under California’s Unruh Civil Rights Act. He alleged that accessible parking at a Farmers Insurance property lacked required signs, pavement markings, and a van-accessible access aisle, and that the pavement was damaged and excessively sloped.

The motion concerned only service of process on Iztaccuauhtli Gonzalez, identified in the motion as doing business as Farmers Insurance. Robinson’s first attempt to obtain permission to serve Gonzalez by publication was denied without prejudice because it did not include an affidavit of facts showing a cause of action against Gonzalez. Robinson then filed the renewed motion.

Court’s Analysis

Under Federal Rule of Civil Procedure 4(e)(1), an individual defendant may be served under the law of the state where the federal court is located or where service is made. California law permits service by publication when the defendant cannot be served by another specified method despite reasonable diligence and a cause of action exists against the defendant, or the defendant is a necessary or proper party.

The court found that Robinson had met the reasonable-diligence requirement. A process server made five unsuccessful attempts at Gonzalez’s business addresses. Robinson’s counsel also mailed the summons, complaint, and service-waiver documents, but Gonzalez did not return a signed waiver and the package was not returned as undeliverable. Counsel then located a residential address through a title search and made five unsuccessful service attempts there. Counsel stated that no other good addresses had been found. The court concluded that reasonable diligence, rather than exhaustive efforts, was required.

The court also found adequate sworn support for the existence of a cause of action. Robinson stated that the lack of accessible parking prevented him from accessing the office and caused him distress, discomfort, frustration, annoyance, and inconvenience. He also stated that he wished to return to the Farmers Insurance location. His counsel described research into ownership and responsibility for the property and stated that counsel believed Gonzalez was the owner and operator of the office and might have an ownership interest in the property or an adjacent parcel.

Ruling

Judge Thomas S. Hixson granted Robinson’s renewed motion for leave to serve Gonzalez by publication. The court approved the East Bay Times as the newspaper most likely to provide actual notice and ordered publication once per week for four successive weeks.

The court extended the deadline for service on Gonzalez to March 24, 2025. It also ordered Robinson to mail a copy of the publication order to three listed addresses and file proof of mailing. If Gonzalez’s address became known before the publication period ended, Robinson would have to serve him with the summons, complaint, and publication order; the order also allowed service through other methods permitted by California law.