Garcia v. Clement-Rorick

Background

Orlando Garcia sued Roxanne Clement-Rorick, alleging that Café Eritrea D’Afrique lacked wheelchair-accessible features. The complaint sought injunctive relief under the Americans with Disabilities Act and statutory damages under California’s Unruh Civil Rights Act. The opinion states that Clement-Rorick, as trustee of The Rorick Trust dated October 19, 1995, owns the property.

Garcia had difficulty serving Clement-Rorick. The court had previously extended the service deadline and later denied Garcia’s first request to serve her by publication because he had not shown reasonable diligence. The court noted that Garcia had not shown an attempt to serve Clement-Rorick at the café and had not provided the email address or a record of his claimed email-service attempt.

For his second motion, Garcia submitted evidence that counsel had searched public records, hired a process-service company that unsuccessfully attempted service at multiple addresses, and tried to learn Clement-Rorick’s whereabouts through a relative. After the first motion was denied, an investigator went to the café and was told that Clement-Rorick was no longer employed there. Counsel stated that no additional addresses had been located.

Legal standard

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, with reasonable diligence, be served by another specified method and either a cause of action exists against the defendant or the defendant is a necessary or proper party.

“Reasonable diligence” requires a thorough, systematic, good-faith investigation. Because publication may not provide actual notice, it is a last-resort method. The plaintiff must also provide independent sworn factual support showing that a cause of action exists against the defendant or that the defendant is a necessary or proper party.

Court’s analysis

The court found that Garcia had exercised reasonable diligence. It relied on the public-records search, unsuccessful service attempts at multiple addresses, the inquiry involving Clement-Rorick’s relative, and the later investigation at the café. The court stated that reasonable diligence did not require Garcia to leave no stone unturned.

The court also found that Garcia had shown a claim against Clement-Rorick. Counsel attested that investigators inspected and photographed the property and confirmed the alleged architectural barriers. Garcia also submitted a deed of trust supporting his assertion that Clement-Rorick owned the property.

Garcia proposed publishing the summons in the West County Times. The court found that this newspaper had stopped publishing and had become part of the East Bay Times. It therefore determined that the East Bay Times was an appropriate newspaper for publication.

Disposition

The court GRANTED Garcia’s motion for leave to serve Clement-Rorick by publication. It extended the service deadline to June 3, 2022, and ordered publication in the East Bay Times once each week for four successive weeks. If Clement-Rorick’s address were found before the publication period ended, Garcia was required to serve her with the summons, complaint, and publication order. The order also required Garcia to mail a copy of the order to Clement-Rorick at the listed addresses and file proof of service.