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 (more) AB 1263 (A. Strickland) Page 2 of ? 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 AB 1263 (A. Strickland) Page 3 of ? 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 AB 1263 (A. Strickland) Page 4 of ? 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 AB 1263 (A. Strickland) Page 5 of ? 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. AB 1263 (A. Strickland) Page 6 of ? 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. AB 1263 (A. Strickland) Page 7 of ? 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) **************