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

Background

The plaintiffs filed their fourth motion asking to serve defendant Brian Hernandez by alternative means. The court relied on its earlier orders addressing the plaintiffs’ previous requests.

Why the Court Denied the Motion

The court identified three independent problems.

First, the plaintiffs did not show reasonable diligence in trying to locate and serve Hernandez. The court’s prior order had identified missed opportunities and steps that Attorney Meyers had not taken, and instructed the plaintiffs to make additional efforts to locate Hernandez and complete service. Instead, the plaintiffs resubmitted the same declaration from Meyers. The court therefore denied the motion on that basis.

Second, the plaintiffs did not provide an acceptable affidavit independently supporting the existence of a cause of action against Hernandez. California Code of Civil Procedure section 415.50 requires an affidavit signed by someone with personal knowledge of the essential facts supporting a cause of action. Although at least some admissible statements in Jane Doe’s declaration supported such a cause of action, the declaration used an electronic “/s/” signature, and Meyers did not attest that Doe had agreed to the filing. The court therefore would not accept the document as the required affidavit and denied the motion on this additional basis.

Third, the plaintiffs did not follow the court’s previous instructions. They did not identify the publications where they proposed to publish notice, and they did not file a proposed order stating the requested relief and a short explanation with supporting authority. The court denied the motion on this additional basis as well.

Disposition

The court denied the motion to serve Hernandez by alternative means. It dismissed the action without prejudice as to Hernandez under Federal Rule of Civil Procedure 4(m). The opinion does not state that the court reached the merits of the plaintiffs’ claims.