In California, except in the case where a lease terminates by its own terms, the foundation of an eviction proceeding is the “Notice.” Not only is it required to be attached to the Unlawful Detainer complaint, it speaks to the eviction’s cause of action. The particulars of the Notice should be correct. (There are some voices that say a three day notice to pay or quit cannot overstate the amounts due the landlord. Other authority argues that it is legally enforceable if the stated sum is just in the neighborhood of what is actually owed. Still others contend successfully that simply proving the Notice overstates the amounts due is a defense to the Unlawful Detainer.) All of this discussion is for another time and place. This article talks only about service of the Notice. Note however that any Judge and any lawyer wants it to be right. So get it right and the issues at trial are reduced.
California Code of Civil Procedure
In speaking about the service of a Notice, California Code of Civil Procedure 1162 states as follows:
The notices required by Sections 1161 and 1161a may be served, either:
1. By delivering a copy to the tenant personally; or,
2. If he or she is absent from his or her place of residence, and from his or her usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his or her place of residence; or,
3. If such place of residence and business can not be ascertained, or a person of suitable age or discretion there can not be found, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated. Service upon a subtenant may be made in the same manner.
This statute governs how Notices are served in California.
Foolproof Success Starts with A Mailing
Assuming for the sake of the present discussion that the Notice is filled out correctly, the first thing to do before you leave the office to initiate service is to mail a copy of the notice in separate envelopes, first class postage fully paid, to each tenant. Do this first. The critical element is to mail a copy before you do anything else. True, if you personally serve the Notice on a particular tenant the mailing is not needed, but in most cases you will not personally serve everyone and the mailing will be necessary. If you do it first you won’t have to worry about it later. Just do it and the service will be easier.
Second: Go to the Property to Effect Personal Service
When you arrive at the property location, knock on the door, and if your tenant(s) is(are) present, hand it to them. This is personal service. Service is complete on that individual(s) at this point. Note: the tenant does not have to take the notice from your hand. For example, you can drop it at his feet, toss it through an open window, or slip it under the door and service is complete. You just need to know that it is your tenant on the other side of the door
Third: Substituted Service on Absent Tenants
As noted, in many instances one or more of the Tenants are not present.
To complete service on an absentee tenant leave a copy with the tenant that you just served for the absentee tenant(s). Note that you have already mailed a copy to him or her. Because of the mailing, the act of leaving a copy completes service of the notice on everyone you did not serve personally.
If, on attempting service of the notice, someone of competent age, generally 18 years or older, but who is not your tenant, answers the door, substituted service may be effected by leaving copies with that individual. Note that fortuitously the mailing requirement has already been taken care of before you arrived at the leased/rented property.
If No One is Present: Post the Notice
If no one is present at the rental property, tape a copy for each tenant on to the front door or in a conspicuous place. Note that you have already mailed a copy to your tenant, first class postage prepaid. When both the mailing and the posting is complete, the service is complete. As a footnote: It is really nice if the server takes a picture of the notices taped to the door. It makes the trial easier and the issue of service more conclusive.
If You Know Where Your Tenant Works, There’s More to Do
You’ll notice in reading the language of the statute that it mentions “business. The statute states in two different places first that “If he or she is absent from his or her place of residence, and from his or her usual place of business…” and second “If such place of residence and business can not be ascertained…”. This language means simply that if you know where one or more of the individuals works you must attempt to serve her/ him at their business address. If personal service is not available at the place of work you may leave a copy at the business address with someone of competent age and discernment and mail a copy to the business address.
This detail often gets lost in the woodwork of evictions. Once, a long time ago, I represented the Tenant during a court trial. The defense was that the landlord knew where the tenant worked and made no attempt by his own voice, under oath, to serve the tenant at that address. The landlord’s knowledge of the tenant’s employment was established by introducing into evidence the rental application. We won that day. A word to the wise: If you know where the tenant works, make the attempt, don’t skip it.
