What is “reasonable diligence” of service of legal papers in an unlawful detainer?

California law states that service of a summons and complaint can be accomplished by posting the papers on the tenant’s property, usually the front door, and by mailing a certified copy to the tenant. The court of appeal recently decided a case regarding service of an unlawful detainer by ‘nailing and mailing.’

The tenant rented a below market rent apartment from Stanford University. In 2009, Stanford informed the tenant that she no longer qualified for the below market rate and her rent was increased 35%. The tenant did not pay the increased rent. On February 17, 2010, Stanford served the tenant with a Three-Day Notice to Pay Rent or Quit. Three months later, Stanford filed a complaint for unlawful detainer. The action proceeded to a default judgment, and Stanford took possession of the tenant’s apartment. The tenant filed a motion to vacate the default judgement. The tenant argued that Stanford 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.”

The court of appeal analyzed the law regarding “nailing and mailing.” Due process requires that the tenant be given notice of the proceedings against her. The landlord must first try to personally serve the tenant. After getting a court order and using ‘reasonable diligence’ to serve the tenant at home or work, the landlord can nail the legal papers on the property and mail a copy of the papers to the tenant by certified mail. Here, Stanford’s process server attempted five times within six days to serve the tenant at her home. Stanford had received an order from the court to post and mail the legal papers to the tenant. The court of appeal held that Stanford had exercised reasonable diligence. The court also stated that “each case must be evaluated on its merits.”

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Mary Catherine Wiederhold

Real Estate Attorney
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San Francisco, CA 94109

Mary Catherine Wiederhold
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