This case comes to us from the appellate division of the superior court, which granted the request of appellant Christine Marie 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,
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
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.
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 to 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 Hon. 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, subdivision (c).
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 phone number for her employment supervisor, and the phone number and address of her sister. Yet it failed to use any of that information, 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 were "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 [42 Cal.Rptr.2d 81, 896 P.2d 807]. The Hon. 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
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 case transferred here for hearing and decision, pursuant to section 911 and California Rules of Court, rule 8.1002.
The parties continue to debate the applicability of companion statutes governing service by other methods. Stanford maintains that the most analogous statute is section 415.20, which allows substituted service when the summons and complaint "cannot with reasonable diligence be personally delivered to the person to be served." (Id., subd. (b).) Appellant, however, insists that the most comparable service provisions are expressed in section 415.50, which permits service by publication if the court determines that the defendant "cannot with reasonable diligence be served in another manner specified in this article." (Id., subd. (a).)
Neither party's comparison of section 415.45 to the selected service statutes is appropriate. Section 415.20, as we have noted, permits substituted service when personal service cannot be accomplished with reasonable diligence; section 415.45 allows posting only if the person cannot be served in any other manner (excluding publication) notwithstanding the application of reasonable diligence. Furthermore, unlike substituted service, the alternative of posting requires the plaintiff to make this showing to the superior court. These safeguards clearly reflect the Legislature's concern for notice in accordance with due process. (See Greene v. Lindsey (1982) 456 U.S. 444, 456 [72 L.Ed.2d 249, 102 S.Ct. 1874] [one attempt at personal service before posting insufficient notice, thereby violating due process].)
As summary proceedings, unlawful detainer actions do not afford defendants all the procedural advantages of ordinary disputes. "The tenant is, by definition, in possession of the property of the landlord; unless a judicially supervised mechanism is provided for what would otherwise be swift repossession by the landlord himself, the tenant would be able to deny the landlord the rights of income incident to ownership by refusing to pay rent and by preventing sale or rental to someone else. Many expenses of the landlord continue to accrue whether a tenant pays his rent or not. Speedy adjudication is desirable to prevent subjecting the landlord to undeserved economic loss and the tenant to unmerited harassment and dispossession when his lease or rental agreement gives him the right to peaceful and undisturbed possession of the property. Holding over by the tenant beyond the term of his agreement or holding without payment of rent has proved a virulent source of friction and dispute." (Lindsey v. Normet (1972) 405 U.S. 56, 72-73 [31 L.Ed.2d 36, 92 S.Ct. 862]; see Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 747 [139 Cal.Rptr. 72] [noting that certain procedural rights must be denied to prevent frustration of the summary nature of the unlawful detainer proceeding].)
Judge Manoukian was entitled to conclude that appellant could not have been personally served at a business address in any event, as she was on the east coast during the unlawful detainer proceedings. Between January and July 2010 Allied repeatedly attempted to contact appellant in writing, and it received mail from her between January and October of 2010, but she provided no address other than the Durand Way apartment. Judge Manoukian could also have found that because the post office had not processed appellant's request to forward her mail,
Greene v. Lindsey, supra, 456 U.S. 444, does not direct us to a different result. The United States Supreme Court noted the particular circumstances that made posting an inadequate method of affording the defendant notice in that case. There, only one attempt at personal service was made before posting, and process servers were "well aware" that at that location notices posted on apartment doors were "`not infrequently'" removed by children or other tenants before being seen by the intended recipients. (Id. at pp. 453-454.) The court acknowledged that the failure of notice in that case was not typical: "The empirical basis of the presumption that notice posted upon property is adequate to alert the owner or occupant of property of the pendency of legal proceedings would appear to make the presumption particularly well founded where notice is posted at a residence. With respect to claims affecting the continued possession of that residence, the application of this presumption seems particularly apt: If the tenant has a continuing interest in maintaining possession of the property for his use and occupancy, he might reasonably be expected to frequent the premises; if he no longer occupies the premises, then the injury that might result from his not having received actual notice as a consequence of the posted notice is reduced. Short of providing personal service, then, posting notice on the door of a person's home would, in many or perhaps most instances, constitute not only a constitutionally acceptable means of service, but indeed a singularly appropriate and effective way of ensuring that a person who cannot conveniently be served personally is actually apprised of proceedings against him." (Id. at pp. 452-453.)
The order is affirmed.
Rushing, P. J., and Premo, J., concurred.