Unlawful detainer actions require service according to the general rules of civil procedure. (Code Civ. Proc., § 1167, subd. (b).) In general, this means that personal service is preferred to substituted service. (Code Civ. Proc., §§ 415.10 & 415.20.) Substituted service is preferred to service by mail. (Code Civ. Proc., §§ 415.20 & 415.30.) And, service by mail is preferred to service by publication. (Code Civ. Proc., §§ 415.30 & 415.50.) The Code provides a special rule just for unlawful detainer, which landlords prefer to all of these methods, but when can the landlord use it?
(PLEASE NOTE “who” should serve is outside this article’s scope. If you are not aware of the rules of service, please do a little extra reading on this website or others to identify the regulations establishing the person performing service.)
Posting and Mailing
The landlord’s favorite service method is the “post and mail” method described in Code of Civil Procedure section 1162. For most notices, the procedure is simple and can be used after a single attempt at the business and residence, which makes it a fast and effective means of serving notices to the tenant. (See our previous blog article on how to serve notices by the post and mail method.) However, the summons cannot be served so simply as most notices. It receives special rules and thus requires a little extra effort before the landlord can use the post and mail procedure.
Code of Civil Procedure Section 415.45
The post and serve rules for most notices are described in Section 1162, but for serving a summons, which is a special document, the rules are prescribed in Code of Civil Procedure section 415.45. In general, the rule is this: When the landlord has attempted other methods with reasonable diligence and failed, the landlord may post the summons on the residence door and send a copy by certified mail to the tenant. (For detailed rules, please see Code of Civil Procedure section 415.45.)
Section 415.45 states that the court must issue an order permitting service by post and mail, and there remains the question: “What is reasonable diligence?”
Asking For Forgiveness Rather Than Permission
Section 415.45 states that “[t]he court shall order the summons to be posted on the premises in a manner most likely to give actual notice to the party to be served and direct that a copy of the summons and of the complaint be forthwith mailed by certified mail to such party at his last known address.” (Code Civ. Proc., § 415.45.) In practice, if they ask for it, Landlords tend to ask for the order after performing the notice.
First, the language is “mandatory.” The court must make the order if the landlord correctly shows that the order should be made. If the landlord makes that showing in court, the court can make the order and find that a prior act satisfied the service requirement.
Second, even though unlawful detainer is a “fast” procedure, the order to show cause hearing is often set 60 days from the initial filing. Waiting for the hearing to ask for the court’s permission defeats the purpose of having a speedy process. “‘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.'” (Board of Trustees of Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 338 [156 Cal.Rptr.3d 893, 899], quoting Nork v. Pacific Coast Medical Enterprises, Inc. (1977) 73 Cal.App.3d 410, 413, 140 Cal.Rptr. 734.) The purpose is not served by causing unreasonable delays. (Ibid.)
What Is Reasonable Diligence?
The Court has taken a stance on the term “reasonable diligence.” Specifically, its view is to the effect: “we refuse to define it.” Specifically, the court said this:
“Indisputably, each case must be evaluated on its own facts. ‘No single formula [or] mode of search can be said to constitute due diligence in every case.'” (Board of Trustees of Leland Stanford Junior University v. Ham, supra, 216 Cal.App.4th 330, 339, quoting Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 333, 150 Cal.Rptr. 855.)
In Board of Trustees, the landlord demonstrated that personal service was impossible because the tenant was on the opposite coast when the landlord attempted service on each visit. Substituted service was impossible because no other person at the residence could receive service. The landlord could not serve the tenant at the tenant’s business because the landlord did not have or know the tenant’s business address. The Landlord submitted a declaration that showed that he had regularly checked on the status of the tenant’s employment and that he learned the tenant no longer worked there. Additionally, the post office had not processed any requests to forward mail, so service by mail would not be effective. Based on the above, the Landlord demonstrated that all other methods of service either had been attempted or would not be effective, so the court determined that the trial court judge was correct to approve a post and mail service. (Board of Trustees of Leland Stanford Junior University v. Ham, supra, 216 Cal.App.4th 330, 341.)
On Day 1, send service by mail under Code of Civil Procedure section 415.30. It requires only first-class postage and a few extra moments. Sending the notice by mail starts the 20-day clock. In most cases, it won’t be necessary, but if it is needed, at least you can tell the judge that you did attempt service by mail and that the statutory period has expired.
Try personal service multiple times in the morning (between 8 am and 12 noon) and several times after noon (12 noon to 8 pm). Document every attempt. The notes will be helpful later when you write your declaration. It is important to note the following for each visit: (1) was the tenant visibly present on the property? (2) was there evidence of the tenant’s presence (car in the driveway, for example)? (3) were any other persons observed? (4) were those persons over 18 (and thus capable of receiving substituted service)?
If personal service fails, and you can leave a copy of the notice with someone over 18, stop there and perform substituted service under Code of Civil Procedure section 415.20.
If all previous attempts failed, write a thorough declaration of your attempts at service using all the above methods, and then perform service by post and mail. You do not have to wait for the 20 days to expire before serving in this manner. However, keep in mind that if the 20 days have not passed, you may not be able to collect the statutory fees for additional efforts because you attempted other efforts before the tenant forced your hand. (It’s still worth asking the judge, don’t be surprised if you have to argue for your costs judgment.)
The Do It Yourself (DIY) landlord can use the above successfully, but it is easier to hire a professional. If you have an eviction in Kern County, call Coleman & Horowitt and ask for Jared Clemence. I can help get your tenants out. Initial consultations are not free, but they are worth the expense and may change how you manage your properties.