Garcia v. Clement-Rorick

Background

Orlando Garcia sued Roxanne Clement-Rorick, individually and as representative of the trustee of The Rorick Trust dated October 19, 1995. Garcia alleges that, during a May 2021 visit to Café Eritrea D’Afrique in Oakland, he encountered barriers to wheelchair access, including a lack of accessible paths of travel and a ramp without a level landing. He seeks injunctive relief under the Americans with Disabilities Act and statutory damages under California’s Unruh Civil Rights Act.

Garcia moved for permission to serve Clement-Rorick by publication in the West County Times. The court had previously extended the deadline for service and later extended it again after Garcia submitted a status report describing service attempts. Garcia’s counsel reported unsuccessful attempts to serve Clement-Rorick at two addresses found through business and property records. Counsel also sent a process server to an address associated with Clement-Rorick’s relative, mailed notices to the three addresses, and stated that Garcia attempted service by email. The motion did not provide the email address or a record of that attempt.

Legal standard

Federal Rule of Civil Procedure 4 allows service on an individual under the law of the state where the federal court is located or where service is made. Under California law, a court may authorize service by publication when the defendant cannot be served by another specified method with “reasonable diligence” and a cause of action exists against the defendant or the defendant is a necessary or proper party.

The court explained that reasonable diligence requires a thorough, systematic, good-faith investigation. Because publication rarely produces actual notice, it should be used only as a last resort. The court required Garcia to show exhaustive efforts to locate and serve Clement-Rorick.

Ruling

The court found that Garcia had not established reasonable diligence. First, although Garcia stated that Clement-Rorick owned the café, he did not show that he attempted personal or other service there. The court noted that the café’s website indicated that it was open and that attempting service there, including asking employees or others present about Clement-Rorick’s whereabouts, appeared reasonable. Second, Garcia did not provide enough information to allow the court to determine whether he had actually provided notice by email.

The court therefore denied Garcia’s motion without prejudice. It extended the service deadline and the deadline to file proof of service one final time, to February 14, 2022. The order was signed by United States Magistrate Judge Thomas S. Hixson.