BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          AB 1263 (A. Strickland)
          As Amended June 7, 2010
          Hearing Date: June 15, 2010
          Fiscal: No
          Urgency: No
          BCP:jd
                    

                                        SUBJECT
                                           
                        Unlawful Detainer: Service of Notice

                                      DESCRIPTION  

          This bill would revise the process for serving commercial  
          tenants with a notice of unlawful detainer by tailoring the  
          procedure to the commercial context.  Specifically, this bill  
          would require those notices to be served as follows: 
                 by delivering a copy to the tenant personally;
                 if the tenant is absent from the commercial rental  
               property, by leaving a copy with someone of suitable age  
               and discretion at the property, and sending a copy through  
               the mail addressed to the tenant at the address where the  
               property is situated; or
                 if a person of suitable age or discretion cannot be  
               found at the rental property through the exercise of  
               reasonable diligence, then by affixing a copy in a  
               conspicuous place on the property, and also sending a copy  
               through the mail addressed to the tenant at the address  
               where the property is situated.  

                                      BACKGROUND  

          Prior to evicting a tenant from a property in an "unlawful  
          detainer" proceeding, existing law requires the landlord to  
          serve the tenant with a notice that gives the tenant an  
          opportunity to either leave the property or cure the violation,  
          if possible.  Those notices must be served in the following  
          manner: (1) by delivering a copy personally to the tenant; (2)  
          if they are absent from their residence and place of business,  
          leaving a copy with someone of suitable age and discretion and  
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          sending a copy through the mail to their residence; or (3) if  
          the residence or business cannot be ascertained, or a person of  
          suitable age or discretion cannot be found, then the notice is  
          to be affixed to their property, a copy delivered to the person  
          residing there, and a copy sent through the mail to the tenant  
          at the place the property is situated.
          In response to difficulties in applying the above procedures to  
          commercial tenants, this bill would, instead, enact similar  
          provisions that are specifically tailored to the commercial  
          landlord/tenant relationship. This bill would not modify the  
          procedures for residential tenants.

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that a tenant of real property, for a term  
          less than life, or the executor or administrator of his or her  
          estate is guilty of unlawful detainer under any of the following  
          circumstances:
                 when the tenant continues in possession after the lease  
               term expires;
                 when the tenant continues in possession without the  
               landlord's permission after defaulting on rent payment;
                 when the tenant continues in possession after failure to  
               perform other lease requirements;
                 when the tenant is assigning, subletting, or committing  
               waste on the premises in violation of the lease agreement,  
               or using the premises for an unlawful purpose; or
                 when the tenant agrees to surrender the property on a  
               certain date and fails to do so.  (Code Civ. Proc. Sec.  
               1161.)

           Existing law  provides that, before a landlord can seek  
          repossession of rental property through an unlawful detainer  
          action, based on the circumstances above, the tenant must be  
          served notice to quit the property or cure the default or other  
          lease violation.  Existing law requires those notices to be  
          served as follows:
                 by personally delivering the notice to the tenant; or 
                 if the tenant is absent from his or her place of  
               residence or business, by leaving a copy with a person of  
               suitable age and discretion at either place and sending a  
               copy through the mail to the tenant at his or her  
               residence; or
                 if the tenant's place of residence and business cannot  
               be determined, or if a person of suitable age and  
               discretion cannot be found, then by doing all of the  
                                                                      



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               following:
                  o         affixing the notice in a conspicuous place at  
                    the property from which the tenant is to be removed;
                  o         delivering a copy to the person there  
                    residing, if such person can be found; and
                  o         mailing a copy to the tenant at the property  
                    address. (Code Civ. Proc. Sec. 1162.)
          
           This bill  would specify that the above provisions apply only to  
          residential tenants, and create a similar set of provisions for  
          commercial tenants.  This bill would not substantively modify  
          the process for serving residential tenants.

           This bill  would require the above unlawful detainer notices to  
          be served on a commercial tenant by any of the following  
          methods:
                 by delivering a copy to the tenant personally;
                 if the tenant is absent from the commercial rental  
               property, by leaving a copy with someone of suitable age  
               and discretion at the property, and sending a copy through  
               the mail addressed to the tenant at the address where the  
               property is situated; or
                 if a person of suitable age or discretion cannot be  
               found at the rental property through the exercise of  
               reasonable diligence, then by affixing a copy in a  
               conspicuous place on the property, and also sending a copy  
               through the mail addressed to the tenant at the address  
               where the property is situated.  

           This bill  would provide that, for purposes of looking for a  
          person of suitable age or discretion, it shall be prima facie  
          evidence that there was the exercise of reasonable diligence in  
          completing service if service was made by a registered process  
          server or the sheriff.  This bill would provide that this  
          provision shall not be interpreted to mean that service that is  
          not made by a process server or sheriff does not satisfy the  
          above diligence requirements.

           This bill  would define "commercial tenant" as a person or entity  
          that hires any real property that is not a dwelling unit or a  
          mobilehome, as specified. 

                                        COMMENT
           
          1.   Stated need for the bill  

                                                                      



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          According to the author, the purpose of AB 1263 is to close a  
          gap in law governing unlawful detainer evictions.  Specifically,  
          the author states:

            The problem is an anomaly in the Code of Civil Procedures  
            Section 1162, which governs how service of the first step in  
            the process is served.  Three methods of service are set  
            forth: (1) in-person service (person is handed the notice);  
            (2) so-called "substitute service," where a responsible  
            person on the premises is handed the notice for another  
            person named on the notice and then mailing of the notice  
            takes place to that person, and then (3) the "nail-and-mail"  
            or "posting" service, where nobody is around to serve so  
            service is made by posting a copy on the premises and then  
            mailing a copy to the named person at the subject location.

            The problem exists with the second service method, and  
            specifically with how it directs mailing to be made.  In  
            this second method, mailing must be made to the  residence   
            address of the person served.  This is where the problem  
            arises.

            In residential evictions, this generally does not present a  
            problem.  The address of the property involved in the action  
            is usually the same in that situation - the person's  
            residence.  However, it can present a problem with a  
            non-resident tenant and nearly always does so with  
            commercial tenants, who do not and cannot live there.   
            Whereas nail-and-mail service permits proper service by  
            mailing  to the property  in the action, property  substituted   
            service depends on the landlord having and mailing the  
            notice to the person['s]  residence  address.  This is not  
            available to many landlords for many different reasons, such  
            as the tenants never providing it, moving around or actually  
            evading contact in one way or another.

            AB 2623 takes care of the anomaly in the unlawful detainer  
            law, which was drafted primarily focused on most residential  
            tenancies but which did not take into consideration the  
            problems faced in all commercial transactions and many  
            residential situations.

          2.   Service of commercial tenants  

          Serving commercial tenants with notices of unlawful detainer may  
          present unique challenges to the serving party due to the lack  
                                                                      



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          of certain information about those tenants.  Those notices warn  
          the tenant that they must leave the property or cure the  
          violation within a particular time frame (3, 30, or 60 days,  
          depending on the particular circumstance).  Failure to respond  
          appropriately may result in the landlord filing an unlawful  
          detainer action.

          This bill seeks to create a bifurcated system for notifying  
          tenants of unlawful detainer actions - the residential  
          provisions would remain the same as existing law, but the  
          provisions that apply to commercial tenants would be modified to  
          reflect the differences between the two types of tenants.  It is  
          important to note that there is a preference under existing law  
          for first attempting to serve a tenant with a copy of the notice  
          personally - the changes made by this bill would not affect that  
          preference.

          To adapt the present statute to the commercial context, this  
          bill would make several changes that, in effect, would adapt and  
          enhance the "substitute notice" provision that applies when the  
          tenant cannot be personally served.  Specifically, existing law  
          provides that when an individual is absent from their residence  
          or business, service may be made by leaving a copy with a person  
          of suitable age and discretion at either their residence or  
          business and subsequently mailing a copy to the tenant at their  
          residence.  In response to concerns that a commercial landlord  
          may not actually have the address of their tenant's residence -  
          this bill would, instead, permit that substitute service if the  
          individual is absent from the commercial rental property, and,  
          instead of requiring a copy to be mailed to their residence,  
          require a copy to be mailed to the address where the property is  
          situated.  Those two changes would permit a commercial landlord  
          to use the substitute notice provisions without having to know  
          the address of the individual's residence.

          Second, this bill would provide that if a person of suitable age  
          or discretion cannot be found on the rental property through the  
          exercise of reasonable diligence, then service may be provided  
          by affixing a copy in a conspicuous place on the property and  
          sending a copy through the mail addressed to the tenant at the  
          address where the property is situated.  That provision differs  
          from existing law in two respects:  (1) the provision removes  
          reference to tenant's place of residence or business; and (2)  
          inserts the concept of using reasonable diligence to find a  
          person of suitable age and discretion.  

                                                                      



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          From a policy standpoint, the insertion of reasonable diligence  
          would appear to ensure that the "substitute service" method is  
          not quickly dismissed by the serving party and that, at a  
          minimum, some effort is made to locate an individual of suitable  
          age and discretion.  On the other hand, if service is made by a  
          registered process server or sheriff, the bill would provide  
          that the use of those individuals is "prima facie" evidence that  
          there was exercise of reasonable diligence in completing service  
          for purposes of the above provision.  The author asserts that  
          the intent of this provision is to encourage the use of  
          registered process servers or sheriffs in order to "eliminate or  
          at least reduce chances of fraudulent subservice."

          The practical effect of stating that the use of those  
          individuals is "prima facie" evidence would be to shift the  
          burden to the commercial tenant to demonstrate (when used) that  
          a sheriff or registered process server did not use "reasonable  
          diligence" to find a person of suitable age and discretion.   
          Despite that burden shift,  it should be noted that process  
          servers must be registered, maintain a bond, are liable for  
          damages when service is not completed pursuant to law, and may  
          have their registration revoked or suspended if it is determined  
          that they have provided improper service, or service that does  
          not comply with the law.  (Bus. & Prof. Code Sec. 22350 et seq.)  
           As a result, this bill represents the policy choice of  
          encouraging the use of professionals to serve these notices that  
          may otherwise be served by commercial landlords themselves.

          3.   Definition of "commercial tenant"  

          Although apartment buildings with greater than four units are  
          considered commercial property under certain circumstances, the  
          term "commercial tenant" in this bill is defined so as to ensure  
          that the tenants of those apartments remain under the  
          "residential" portion of Code of Civil Procedure Section 1162.   
          Specifically, this bill would define "commercial tenant" as a  
          person or entity that hires (rents) any real property in this  
          state that is not a dwelling unit or a mobilehome.  Given that  
          each individual apartment is a dwelling unit - defined in Civil  
          Code Section 1940(c) as "a structure or the part of a structure  
          that is used as a home, residence, or sleeping place by one  
          person who maintains a household or by two or more persons who  
          maintain a common household" - the definition of "commercial  
          tenant" would ensure that apartment residents are not affected  
          by the changes made by AB 1263.

                                                                      



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          4.   No opposition
           
          Committee staff notes that although a prior version of this bill  
          did have opposition, that opposition was removed when the author  
          accepted amendments in the Assembly Judiciary Committee to  
          insert the above-described bifurcated system.  As of the writing  
          of this analysis, the Committee has received no opposition to  
          the present version of the bill.
           Support  :  None Known

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :  None Known

           Prior Vote  :

          Assembly Judiciary (Ayes 9, Noes 0)
          Assembly Floor (Ayes 68, Noes 0)

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