Garcia v. Bernardini

Background

Orlando Garcia filed a third administrative motion asking to serve Joseph Bernardini and the other defendants by publication in the Valley Times. The court had previously denied a request involving a newspaper that was no longer circulating. It later denied Garcia’s request to use the Valley Times without prejudice because Garcia had not provided documentary evidence that the newspaper was currently in circulation.

For the third motion, Garcia submitted an email from a Bay Area News Group employee. The court found that Garcia still had not provided information about the Valley Times’s circulation sufficient to show that it was an appropriate newspaper for service by publication.

Court’s analysis

Under California law, service by publication is allowed only when the plaintiff shows by affidavit that the defendant cannot be served with reasonable diligence by another authorized method. Courts require exhaustive efforts to locate and serve the defendant because publication rarely provides actual notice.

The court cited other Northern District of California disability-access cases holding that, when a defendant owns a business or the property where a business operates, failing to investigate or attempt service at that property does not demonstrate reasonable diligence. Garcia had investigated the defendants’ home address and attempted service at an address where he believed they resided, but he had not documented any investigation or attempted service at 688 Blossom Way in Hayward, where he alleged Sam’s Cherryland Grocery operated.

Ruling

Judge Richard Seeborg denied the administrative motion for service by publication without prejudice. The court also granted Garcia a 30-day extension, measured from August 1, 2022, to complete service on the defendants. The order stated that, if service by publication were later allowed, the East Bay Times would be the proper publication.