BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



           ------------------------------------------------------------ 
          |SENATE RULES COMMITTEE            |                  AB 1263|
          |Office of Senate Floor Analyses   |                         |
          |1020 N Street, Suite 524          |                         |
          |(916) 651-1520         Fax: (916) |                         |
          |327-4478                          |                         |
           ------------------------------------------------------------ 
           
                                         
                                 THIRD READING


          Bill No:  AB 1263
          Author:   Audra Strickland (R)
          Amended:  6/23/10 in Senate
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  5-0, 6/15/10
          AYES: Corbett, Harman, Hancock, Leno, Walters

           ASSEMBLY FLOOR  :  68-0, 1/27/10 - See last page for vote  
            (Consent) 


           SUBJECT  :    Unlawful detainer:  service of notice

           SOURCE  :     Author


           DIGEST  :    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 requires those notices to be served  
          as follows:  (1) by delivering a copy to the tenant  
          personally; (2) 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 (3) if, at the time  
          attempted service, a person of suitable age or discretion  
          is not 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  
                                                           CONTINUED





                                                               AB 1263
                                                                Page  
          2

          where the property is situated.  

           Senate Floor Amendments  of 6/23/10 strike language  
          encouraging the use of process servers and sheriffs, and  
          insert clarifying language.

           ANALYSIS  :    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:

          1.When the tenant continues in possession after the lease  
            term expires;
          2.When the tenant continues in possession without the  
            landlord's permission after defaulting on rent payment;
          3.When the tenant continues in possession after failure to  
            perform other lease requirements;
          4.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
          5.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:

          1.By personally delivering the notice to the tenant; or 
          2.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
          3.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 following:

               A.     Affixing the notice in a conspicuous place at  
                 the property from which the tenant is to be removed;

                                                           CONTINUED





                                                               AB 1263
                                                                Page  
          3

               B.     Delivering a copy to the person there residing,  
                 if such person can be found; and
               C.     Mailing a copy to the tenant at the property  
                 address. (Code Civ. Proc. Sec. 1162.)

          This bill specifies 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 requires the above unlawful detainer notices to  
          be served on a commercial tenant by any of the following  
          methods:

          1.By delivering a copy to the tenant personally;

          2.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

          3.If, at the time of attempted service, a person of  
            suitable age or discretion is not 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 defines "commercial tenant" as a person or entity  
          that hires any real property that is not a dwelling unit or  
          a mobilehome, as specified. 

           Comments
           
          According to the author's office, the purpose of this bill  
          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  

                                                           CONTINUED





                                                              AB 1263
                                                                Page  
          4

          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.

          This bill 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.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           ASSEMBLY FLOOR  :  
          AYES:  Adams, Ammiano, Anderson, Arambula, Beall, Bill  
            Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,  
            Bradford, Brownley, Buchanan, Caballero, Charles  
            Calderon, Chesbro, Cook, Coto, De La Torre, Emmerson,  
            Eng, Evans, Feuer, Fletcher, Fong, Fuentes, Fuller,  

                                                           CONTINUED





                                                               AB 1263
                                                                Page  
          5

            Furutani, Gaines, Galgiani, Garrick, Gilmore, Hagman,  
            Harkey, Hayashi, Hernandez, Hill, Huber, Huffman,  
            Jeffries, Jones, Knight, Lieu, Logue, Bonnie Lowenthal,  
            Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello,  
            Nielsen, John A. Perez, Portantino, Ruskin, Saldana,  
            Silva, Skinner, Smyth, Solorio, Audra Strickland,  
            Swanson, Torres, Torrico, Tran, Villines, Yamada
          NO VOTE RECORDED:  Carter, Conway, Davis, De Leon, DeVore,  
            Hall, V. Manuel Perez, Salas, Torlakson, Bass


          RJG:nl  6/24/10   Senate Floor Analyses 

                       SUPPORT/OPPOSITION:  NONE RECEIVED

                                ****  END  ****





























                                                           CONTINUED