Trial Court: Santa Clara County Superior Court Appellate Division Trial Judges: Hon. Kurt Kumli, Hon. Erica Yew and Hon. Carrie Zepeda and Hon. Socrates P. Manoukian (Santa Clara County Super. Ct. No. 110CV171121)
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
This case comes to us from the appellate division of the superior court, which granted the request of appellant Christine Ham to transfer the matter under California Rules of Court, rule 8.1005. The issue before us is whether Code of Civil Procedure section 415.45,*fn1 which governs service of summons in unlawful detainer actions, permits service by posting and mailing after multiple attempts to effect personal service have been unsuccessful. The appellate division, reversing the superior court, ruled that such efforts are not sufficient to comply with the "reasonable diligence" requirement of section 415.45. We agree with the superior court, however, that in the particular circumstances presented, the landlord, the Board of Trustees Of The Leland Stanford Junior University (Stanford), exercised reasonable diligence in attempting to serve appellant. We will therefore affirm the superior court's order denying the motion of appellant Christine Ham to vacate the default judgment entered against her.
Neither party's brief on appeal offers a complete and accurate summary of the procedural history of this case accompanied by correct citations to the record. The record indicates, however, that appellant rented an apartment from Stanford on Durand Way from May 2003 through May 2010, when Stanford filed its unlawful detainer action. Until June 2008, appellant paid rent at the market rate while on the waiting list for a below-market-rate (BMR) apartment. In June 2008, however, the parties signed a one-year lease at $870 per month, the BMR rent for that unit.
Before the lease term expired, Stanford notified appellant that her rent would increase to $883 a month for the following year. After the July 2009 payment, however, Stanford informed appellant that she no longer qualified for the BMR program and that her rate would increase to $2,525 per month beginning February 1, 2010. Nevertheless, beginning in July 2009 and continuing to September 2010, appellant paid $883 per month by money order or cashier's check, accompanied by letters of unspecified content.*fn2 On each occasion she listed the subject property as her return address. From the end of 2009 through approximately July 31, 2010, however, appellant was on the East Coast, staying in different states and cities. Her mail was not being forwarded between February or March and August of 2010.
Stanford attempted to return the September 2009 and February 2010 checks, but appellant again submitted them to Stanford, suggesting that they had been returned to her in error. On February 17, 2010, Stanford served appellant with a three-day "Notice to Pay Rent or Quit" pursuant to section 1161, subdivision (2). The notice expired on February 22, and on May 5, 2010, Stanford filed its complaint for unlawful detainer.
A process server attempted to personally serve appellant with the summons at the residence on May 6, May 7, May 9, May 10, and May 11, 2010, at various times. Appellant, however, was on the East Coast during this period. According to the business manager for the apartments, Stanford repeatedly attempted to contact appellant in writing between January and July of 2010 at the only address it had, the Durand Way apartment. Although Stanford received some mail from appellant between January and October 2010, she did not provide any alternative addresses other than the Durand Way apartment, and in July 2010 Stanford learned that the postal service had been unable to forward her incoming mail.
Meanwhile, on May 18, 2010, having been unsuccessful at personal service, Stanford obtained an order from the Honorable James P. Kleinberg permitting it to serve appellant by posting a copy of the summons and complaint on the premises of the Durand Way apartment and by mailing a copy to her "last known address." Service was deemed complete on the 10th day after the posting and mailing, pursuant to section 415.45. Appellant, however, did not receive the summons and complaint,*fn3 and the unlawful detainer action proceeded to a default judgment on June 7, 2010. Stanford took possession of the property on June 17, 2010, and in August it rented the apartment to a new tenant.
Appellant learned of the judgment in late July of 2010. On December 7, 2010, citing sections 473 and 473.5, she moved to vacate the default and default judgment and restore her to possession of her apartment. Appellant asserted that the judgment was void because the summons and complaint had not been properly served. Stanford, she argued, had failed to use reasonable diligence to locate her, even though it had her cell phone number, the number for her employment supervisor, and the number and address of her sister. Yet it failed to take any of those steps, thus indicating no true effort to comply with its "obligation" to ascertain her whereabouts. At the ensuing hearing appellant's counsel acknowledged that five attempts at personal service was "more than enough"; but personal service at that address, he pointed out, was "just one way to serve her." Stanford could have called her; she would have explained that she was out of state, and service could then have been made by certified mail or by personal service where she was.
Appellant urged the superior court to impose a standard of "reasonable diligence" as defined in Watts v. Crawford (1995) 10 Cal.4th 743. The Honorable Socrates P. Manoukian aptly pointed out, however, that this definition applied to service by publication under section 415.50, not service by posting and mailing under section 415.45. Judge Manoukian found Stanford's five attempts at personal service to have been sufficient to constitute reasonable diligence under section 415.45 and denied appellant's motion to vacate the judgment.
The appellate division of the superior court reversed. The three-judge panel acknowledged (as had appellant) that cases interpreting the term "reasonable diligence" pertained to service by publication under section 415.50, not section 415.45. Nevertheless, the court reasoned, "the fact that identical 'reasonable diligence' language is used in the two statutes strongly supports Appellant's position. Both statutes also require a court's approval prior to resorting to service by publication or posting and mailing as these are the least preferred methods of service." The appellate division rejected Stanford's reliance on section 415.20, because that statute permits substituted service after reasonable diligence in attempting personal service, whereas section 415.45 requires an effort to serve the defendant in any manner specified in sections 415.10 through 415.95. Here Stanford's attorney had recited five attempts at personal service at the apartment but no facts indicating that Stanford was unable to serve her at a different location or by mail, pursuant to section 415.30 or section 415.40, nor any effort to determine her whereabouts or business address. The court thus concluded that Stanford had failed to comply with the "reasonable diligence" requirement, rendering the subsequent default judgment void on its face.
Appellant had already filed a petition to certify the matter to this court. The appellate division noted that there was no case law addressing the meaning of "reasonable diligence" under section 415.45. It therefore granted appellant's petition, reasoning that proper service in an unlawful detainer action is important, since "a defendant in an unlawful detainer action stands to lose his or her right to stay in the home." This court thereafter ordered the ...