Board of Trustees for the Laborers Health & Welfare Trust Fund for Northern…

Background

The plaintiffs moved for permission to serve the summons by publication. Their complaint alleged that P & J Utility Company failed to make fringe-benefit contributions to trust funds administered by the plaintiffs, allegedly violating the parties’ collective bargaining agreement and the Employee Retirement Income Security Act. The plaintiffs sought $371,658.87 in unpaid contributions, $341,080.82 in liquidated damages and interest, $600 in liquidated-damages-related fees, and attorneys’ fees.

The plaintiffs filed a proof of service stating that a process server had sent the complaint and related documents by first-class mail to an address in Davis, California associated with Daniel J. Miller, identified as the defendant’s agent for service of process. The plaintiffs later obtained another summons addressed to Gregory C. Miller at the same address, but did not file information showing whether that summons was returned executed or unexecuted.

Court’s analysis

California law permits service by publication only when an affidavit satisfies the court that the defendant cannot be served by another method with reasonable diligence and that a cause of action exists against the defendant, or that the defendant is a necessary or proper party. The court explained that publication is a last resort because it rarely provides actual notice. If the defendant’s address can be found, a better method of service, such as mail or substitute service, must be used.

The court found that the plaintiffs’ motion did not show the required reasonable diligence or exhaustive efforts to serve the defendant. It also found that the motion lacked legal citations and adequate argument. The supporting declaration attached private-investigator reports without adequately explaining their significance or establishing a complete timeline. The court further found that the declaration did not independently support the existence of a cause of action against the defendant, and that the plaintiffs did not identify the newspaper in which they sought publication or explain why publication there would likely provide actual notice.

Disposition

The court denied the motion for service by publication without prejudice. The plaintiffs were told to address the identified deficiencies if they wished to renew their request and were ordered to file either a renewed motion or a status report by May 27, 2022.