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Court Holds that a Landlord in an Unlawful Detainer Action is not Required to Conduct an Extensive Investigation of All Possible Whereabouts of the Tenant Prior to Serving Notice by Posting

In Board of Trustees of the Leland Stanford Junior University v. Ham, a California court of appeal considered whether Code of Civil Procedure Section 415.45, which governs service of summons in unlawful detainer actions, permits service by posting and mailing after multiple attempts to effect personal service on the tenant have been unsuccessful.  The court held that in the particular circumstances presented, the landlord exercised “reasonable diligence” in attempting to serve the tenant.

Christine Ham rented an apartment from the Board of Trustees of the Leland Stanford Junior University (“Stanford”).  Effective February 1, 2010, Ham’s rent increased to $2,525 per month, but she paid only $883 per month.  Stanford served Ham with a three-day notice to pay rent or quit and subsequently, filed a complaint for unlawful detainer.  A process server attempted to personally serve Ham with the summons and complaint at the property address on five separate dates, at various times of day.  However, Ham was on the East Coast during this period.  Stanford also repeatedly attempted to contact Ham in writing between January and July of 2010 at the only address it had for Ham, the apartment, but Ham’s mail was not forwarded to her due to a postal error.

Unable to effect personal service, Stanford requested and obtained a court order permitting it to serve Ham by posting a copy of the summons and complaint on the premises of the apartment and mailing a copy to Ham’s last known address, also the apartment.  Ham did not receive the summons and complaint because she was staying on the East Coast and her mail was not being forwarded to her.  The unlawful detainer action proceeded to a default judgment against Ham, and Stanford took possession of the premises and rented the apartment to a new tenant.

After learning of the default judgment, Ham moved to vacate the judgment and restore possession of the apartment to her.  She argued that Stanford had failed to use reasonable diligence to locate her, when it had her cell phone number, the number for her employment supervisor, and the number and address of her sister.  Ham urged the Court to find that the requirement of “reasonable diligence” contained in Code of Civil Procedure Section 415.45 was the same as the “reasonable diligence” required by Code of Civil Procedure Section 415.50, a separate statute allowing for service by publication when a defendant cannot be served by other means.  In the context of Section 415.50, the term “reasonable diligence” denotes a thorough, systematic investigation and inquiry and requires such steps as inquiring of the defendant’s relatives and investigating city and telephone directories.

The Court of Appeal held that the “extraordinary measures required before publication is permitted [under section 415.50] should not be imported into section 415.45.”  The Court explained:

Publication is the last resort because it is so unlikely to give notice to the defendant that he or she is being sued.  Accordingly, it can require exhaustive attempts to locate the defendant before this method may be employed.  The unlawful detainer defendant, however, has a residence that is known to the plaintiff; it is therefore reasonable for the plaintiff to assume, at least initially, that personal service will eventually be successful.  While section 415.45 does not allow the plaintiff to rely on this assumption, we cannot agree with appellant that reasonable diligence under section 415.45 requires a landlord to conduct an extensive investigation of all the possible whereabouts of its tenant before seeking the posting alternative.  “The purpose of the unlawful detainer statutes is to provide the landlord with a summary, expeditious way of getting back his property when a tenant fails to pay the rent or refuses to vacate the premises at the end of his tenancy.” . . .  This purpose is not served by a protracted inquiry into all sources of information regarding the tenant’s location before posting and mailing at the one address of which the landlord is certain.

The Court concluded that it could not say that the lower court had erred by allowing service by posting and mailing at Ham’s residence address.  Each case must be evaluated on its own facts, however, and the Court cautioned that “’No single formula [or] mode of search can be said to constitute due diligence in every case.’”

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