Unreported / Non-Citable
Background
Felicia Fields and minor plaintiff F.L. are proceeding on a Third Amended Complaint asserting claims arising from F.L.'s asthma attack on a Fresno Unified School District campus. The district answered on August 19, 2026, and counsel waived service of summons for individual defendants Misty Her, Michelle Parker, and Amy Idsvoog. Those defendants received an extension until November 5, 2026, to respond to the complaint. Xai Torres was the only defendant who had not been served.
The plaintiffs filed an ex parte application seeking leave to serve Torres by first-class and certified mail, supported by counsel Elias Aguiniga's declaration and an exhibit. The declaration reported 13 unsuccessful personal-service attempts between September 10 and October 17, 2026, at an address identified as both Torres's residence and place of business. Eight attempts occurred on October 17 between 6:06 a.m. and 10:10 a.m. Counsel also emailed the documents to Nick Webb, an attorney representing Torres in other matters. Webb declined to accept service but offered to forward the documents as a professional courtesy; neither Webb nor Torres responded.
The Court’s Holding
Magistrate Judge Helena M. Barch-Kuchta explained that Federal Rule of Civil Procedure 4(e)(1) permits service under the law of the state where the court sits or service is made. California authorizes personal service, substituted service, and service by mail with acknowledgment of receipt. When reasonable diligence cannot accomplish service through the prescribed methods, section 413.30 allows the court to authorize a method reasonably calculated to give actual notice. The applicant must detail attempts under each prescribed method and explain why those methods failed at locations where the defendant is likely to be found. Reasonable diligence means the steps a person genuinely seeking to provide notice would take, including a thorough, systematic, good-faith investigation.
The court found that the unsuccessful attempts demonstrated reasonable diligence regarding personal service under section 415.10. The reported absence of anyone at Torres's residence and place of business also supported the contention that substituted service under section 415.20 could not be accomplished. But the declaration identified no attempt to serve Torres by mail with acknowledgment of receipt under section 415.30 and did not explain why that method could not be accomplished. Sending documents to an attorney who expressly declined to accept service did not establish an attempt under that provision.
The order emphasized that court authorization is unnecessary to attempt substituted service or first-class mail service with acknowledgment of receipt. Before obtaining alternative service under section 413.30, the plaintiffs therefore had to establish that the prescribed methods were unsuccessful despite reasonable diligence. Because they had not addressed section 415.30, the court denied the application without prejudice and extended the deadline to serve Torres until 30 days after entry of the order. Within that period, the plaintiffs must file proof of service, a renewed application supported by a declaration addressing the identified deficiencies, or a request for a further extension supported by good cause.
Key Takeaways
- Thirteen unsuccessful personal-service attempts supported reasonable diligence, but they did not eliminate the need to address every prescribed service method.
- Forwarding papers to an attorney who declined to accept service was not an attempt at service by mail with acknowledgment of receipt under California law.
- The plaintiffs did not need court permission to try substituted service or California's authorized first-class mail procedure.
- The denial was without prejudice, and the court supplied a 30-day period to complete service, renew the application with a corrected declaration, or seek another extension for good cause.
Why It Matters
The decision distinguishes diligence in pursuing one service method from the broader showing required for court-authorized alternative service. Even extensive personal-service efforts did not justify bypassing an available statutory mailing procedure without an attempt or explanation.
The ruling is procedural and does not decide the merits of the claims arising from the asthma attack. It preserves the plaintiffs' ability to serve Torres while imposing a concrete deadline and specifying the filings needed to avoid further delay.