Garcia v. JP Lavanderia Express, Inc.

Background

Orlando Garcia filed this case seeking injunctive relief under the Americans with Disabilities Act and statutory damages under California’s Unruh Civil Rights Act. Garcia alleged that, during a December 2021 visit to Lavanderia Express, he encountered inaccessible paths of travel, restrooms, and door hardware. The opinion states that Donald H. Beeson owned the property in his individual capacity and as trustee of The Beeson Trust Agreement dated April 12, 2011.

Garcia moved for permission to serve Beeson by publication. Garcia’s counsel reported unsuccessful service attempts at four addresses, mailed notices to two addresses, and sent electronic notices to three email addresses. Garcia proposed publishing the notice in the San Jose Mercury News. No opposition to the motion was filed.

Legal standard

Federal Rule of Civil Procedure 4(e)(1) permits service on an individual defendant under the law of the state where the federal court is located or where service is made. Under California law, service by publication may be used if the plaintiff shows that the defendant cannot be served through another authorized method despite reasonable diligence and that a claim exists against the defendant or the defendant is a necessary or proper party.

The court explained that reasonable diligence requires a thorough, systematic, and good-faith investigation. Before allowing publication, courts require exhaustive efforts to locate the defendant because publication rarely results in actual notice. The court identified likely sources of information that generally must be investigated, including relatives, friends, acquaintances, an employer, directories, voter records, and property records.

Court’s analysis

The court found that Garcia had shown more than a cursory effort but had not established reasonable diligence. First, although Garcia stated that Beeson owned the property where Lavanderia Express was located, Garcia had not indicated that he attempted service there or tried to learn Beeson’s whereabouts by asking employees or others present.

Second, the record did not show that Garcia, with or without professional assistance, had consulted other likely sources of information, including Beeson’s relatives, friends, acquaintances, or employer. The court also cited authority recognizing that hiring a private investigator is one measure a plaintiff should take before requesting service by publication.

Disposition

Judge Thomas S. Hixson DENIED Garcia’s motion without prejudice and EXTENDED the service deadline to July 5, 2022. The court stated that it would not permit service by publication unless Garcia satisfied his burden of showing exhaustive attempts to locate and serve Beeson.