Doe v. Santa Clara County Department of Health and Human Services

Background

The plaintiffs filed their third motion asking to serve defendant Brian Hernandez by alternate means, specifically by publication. Federal Rule of Civil Procedure 4(e)(1) permits service by methods allowed by the law of the state where the federal court is located or where service occurs. The plaintiffs relied on California Code of Civil Procedure section 415.50, which requires proof that the defendant cannot be served with reasonable diligence by another method and that a cause of action exists against the defendant or that the defendant is a necessary or proper party.

The court had previously denied two similar motions without prejudice. It had instructed the plaintiffs to provide an affidavit or equivalent sworn declaration showing both reasonable diligence in attempting service and independent evidentiary support for a cause of action against Hernandez.

The Declaration

The court found that attorney Meyers’s new declaration was equivalent to an affidavit because it was signed and stated that the facts were sworn under penalty of perjury. But the court found that the declaration did not provide the required independent factual support for the plaintiffs’ claims against Hernandez.

Meyers stated that the plaintiffs had described physical, emotional, and sexual abuse by Hernandez. He also stated that child-protection officials had discovered abuse of other foster children, although the details were unknown. The court found these statements insufficient because Meyers was the plaintiffs’ attorney, did not personally describe the alleged incidents, relied on unclear hearsay, and offered conclusions rather than sworn facts from someone with personal knowledge. The declaration also did not connect specific facts to the two causes of action identified in the amended complaint: violation of state civil rights and injuries to children in government care.

Efforts to Locate Hernandez

The court did not decide whether the plaintiffs’ efforts to locate Hernandez had fully satisfied the reasonable-diligence requirement. It explained that publication is strongly disfavored and generally should be used only as a last resort. The court identified additional possible efforts, including contacting people connected to Hernandez and using other authorized service methods.

The declaration described searches and attempted contacts involving possible addresses in Sacramento, Winters, and Reno; Hernandez’s father; public records; correctional and county jail records; and people associated with prior residences. The court nevertheless stated that the plaintiffs should make additional attempts to locate and serve Hernandez personally or by another authorized method if they filed a renewed motion.

Ruling

The court denied without prejudice the plaintiffs’ third motion to serve Hernandez by publication. It allowed the plaintiffs to file a renewed motion for alternate service by October 23, 2023, addressing the identified deficiencies. The court warned that if the plaintiffs failed to serve Hernandez or submit another motion by that date, it would dismiss the action without prejudice as to Hernandez. The order did not decide the merits of the plaintiffs’ underlying claims.