Block v. Hernandez Madrigal

Background

Hendrik Block alleged that he is physically disabled and uses a walker, wheelchair, or electric scooter for mobility. He sued Venedicto Hernandez Madrigal, doing business as Stadium Liquors, and Jose Diaz and Rosa Diaz, as trustees of The Diaz 1998 Trust dated January 26, 1998, as amended. The complaint alleged that the defendants owned, operated, and/or leased Stadium Liquors in San Jose, California, where Block encountered physical barriers during a November 2020 visit. The complaint asserted claims under the Americans with Disabilities Act, the California Unruh Civil Rights Act, and provisions of the California Health and Safety Code.

The motion addressed only service of process—the formal delivery of the lawsuit and summons to the defendants. Block sought permission to serve the Diaz defendants by publication after unsuccessful attempts at three addresses. His counsel described public-record searches, a grant-deed review, a private-investigator skip trace, multiple process-server attempts, and an attempted postal trace. At one address, occupants said the Diaz defendants were unknown; at another, an occupant said Rosa Diaz owned the house but did not live there; and at a San Jose address, a person who identified himself as the Diaz defendants’ son said they lived in Atwater but would not provide a street address.

Legal standard

Federal Rule of Civil Procedure 4(e)(1) allows service on an individual by following the law of the state where the federal court is located or where service is made. California law allows service by publication when the defendant cannot, with reasonable diligence, be served in another manner and when a cause of action exists against the defendant, the defendant is a necessary or proper party, or the defendant has an interest in property involved in the case.

The court explained that publication is the least likely method to notify a defendant and should be used only as a last resort. “Reasonable diligence” requires a thorough, systematic, good-faith investigation, but not exhaustive efforts that leave no possible step untried.

Court’s analysis

The court found that Block had made reasonably diligent efforts to locate and serve the Diaz defendants. The court considered the public-record search, the private investigator’s skip trace, the potential addresses identified, and the unsuccessful service attempts, including at the Atwater address where service had succeeded in another matter in November 2019. The court noted that Block might have done more, such as using a subpoena to seek information from the person who identified himself as the Diaz defendants’ son, but concluded that the law required reasonable diligence rather than exhaustive efforts.

The court also found that Block satisfied the property-related requirement for publication. Block asserted that the Diaz defendants owned the real property where Stadium Liquors was located, and his counsel submitted a grant deed supporting that assertion.

Disposition

The court granted Block’s motion for leave to serve the Diaz defendants by publication. It extended the service deadline to December 20, 2021. It ordered publication in the San Jose Mercury News and the Merced Sun-Star once per week for four successive weeks. If the Diaz defendants’ address was found before the publication period ended, Block was required to immediately serve them with the summons, complaint, and publication order. The order also stated that other forms of service allowed by California law remained available.

Block was required to mail a copy of the order addressed to the Diaz defendants at Stadium Liquors, 356 Keyes Street, San Jose, California; 6410 Stockton Avenue, Atwater, California 95301; and 4145 San Miguel Way, San Jose, California 95111. The order did not decide the merits of Block’s disability-access claims.