BILL ANALYSIS
AB 1263
Page 1
Date of Hearing: January 12, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1263 (Strickland) - As Amended: January 4, 2010
PROPOSED CONSENT (As Proposed To Be Amended)
SUBJECT : UNLAWFUL DETAINER: SERVICE OF NOTICE
KEY ISSUE : SHOULD EXISTING LAW be amended to specify that a
lanDlord may serve unlawful detainer notices on a commercial
tenant at the rental property, instead of requiring service at
the commercial tenant's "Place of residence," as is required by
existing law.
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
Existing law specifies that, before a landlord can remove a
tenant through an unlawful detainer proceeding, the landlord
must serve notice upon the tenant so that the tenant can leave
the property, cure whatever lease violation justifies the
eviction, or file an answer with the court. As set out in
existing law, the landlord must serve notice upon the tenant in
one of the following ways: (a) by personally delivering notice
to the tenant; or (b) if the tenant is absent from his or her
place of residence or business, by leaving a copy of the notice
with a person of suitable age and discretion and sending a copy
through the mail to the tenant at his or her residence; or (c)
if the tenant's place of residence and business cannot be
determined, or if a person of suitable age and discretion cannot
be found there, by affixing the notice in a conspicuous place at
the subject property and mailing another copy of the notice to
the tenant at the property address. These steps may be
reasonable in regards to a residential tenant. But in the case
of commercial tenants, if read literally, would require the
landlord to attempt personal service at the tenant's "place of
residence," and if the "post and mail" form of service is
permitted, the copy of the notice must be mailed to the
commercial tenant's "place of residence." However, as the
author notes, a landlord has no reason to know the commercial
tenant's "place of residence." Indeed, if the commercial tenant
is a corporation, it is not clear what would constitute its
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"place of residence." Because the bill as currently in print
would have applied to either a residential or a commercial
tenant, and this apparently was not the author's intent, the
author will adopt amendments in this Committee that will apply
only to commercial tenants. The foregoing bill summary and
analysis reflects the bill as proposed to be amended.
SUMMARY : Provides, as proposed to be amended, that in order to
effect removal of a commercial tenant from property under the
unlawful detainer statute, notice that the commercial tenant is
in violation of lease terms must be served as follows:
a) By delivering a copy of the notice to the tenant
personally;
b) If the tenant is absent from the subject property, by
leaving a copy with a person of suitable age and discretion
at the property and mailing a copy to the tenant at the
rental property address.
c) If service cannot be achieved by (a) or (b) above, then
by affixing a copy in a conspicuous place at the rental
property and mailing a copy addressed to the tenant at the
rental property address.
EXISTING LAW :
1)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:
a) When the tenant continues in possession after the lease
term expires;
b) When the tenant continues in possession without the
landlord's permission after defaulting on rent payment;
c) When the tenant continues in possession after failure to
perform other lease requirements;
d) 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;
e) When the tenant agrees to surrender the property on a
certain date and fails to do so. (Code of Civil Procedure
section 1161.)
2)Provides that, before a landlord can seek repossession of
rental property through an unlawful detainer action, based on
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one the circumstances above, the tenant must be served notice
to quit the property or cure the default of other lease
violation. Specifies that the required notice must be served
as follows:
a) By personally delivering it to the tenant; or
b) 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
c) 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:
i) Affixing the notice in a conspicuous place at the
property from which the tenant is to be removed;
ii) Delivering a copy to the person there residing, if
such person can be found; and
iii) Mailing a copy to the tenant at the property
address. (Code of Civil Procedure section 1162.)
COMMENTS : Under existing law, before a landlord can initiate an
unlawful detainer (UD) action to regain possession of the rented
property, the landlord must serve notice upon the tenant that he
or she has violated a term of the lease, thereby giving the
tenant an opportunity to either correct the violation or leave
the premises. The procedure serving notice upon the tenant is
set out in the statute in some detail. Existing law creates a
strong preference for serving the tenant in person before
employing alternative forms of notice. Specifically, existing
law requires that personal service be attempted at the tenant's
residence and the place of business, if known. If the tenant is
absent from the residence and place of business, then service
may be accomplished by leaving the notice with another person of
suitable age and discretion at either the residence or place of
business, and then mailing a copy of notice to the tenant at his
or her place of residence (i.e. "substitute service"). If the
place of residence and place of business cannot be ascertained,
and there is no suitable person with whom to leave the notice at
either place, then service may be achieved by posting a copy of
the notice in a conspicuous place at the rental property and
then mailing a copy of the notice addressed to the tenant at the
place where the rental property is situated (i.e.
"post-and-mail" service).
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This bill, as proposed to be amended, seeks to address a problem
that arises when the existing statutory scheme is applied to a
commercial tenant. According to the author, in residential
evictions, the existing law does not present a problem, since
the landlord obviously knows the tenant's place of residence.
However in the commercial context, the author contends, the
landlord typically has no reason to know the personal residence
of the commercial tenant - unlike the residential context, when
the rental property and the place of residence are one and the
same. The author seeks to correct this problem by eliminating
from the existing statute all references to attempting personal
service or mailing notices to "the residence" or "place of
business" and instead requiring that personal service be
attempted at, or any required mailings be sent to, the rented
"property."
Proposed Amendments Remove Opposition : As currently in print
this bill would have changed existing law so that it would have
applied to both residential and commercial tenants, thereby
eliminating the existing requirement that landlords first
attempt personal service at both the residence and place of
business of a residential tenant. Not only was this apparently
not the author's intended purpose, the bill in print was opposed
by the Western Center on Law and Poverty and California Rural
Legal Assistance on the grounds that it would weaken the law's
long-standing and well-established preference for personal
service, especially for residential tenants. In response to
this concern, and to better reflect the author's original
concern, the bill now specifies that the proposed change applies
only to commercial tenants. In addition, the bill in print had
two other provisions that engendered some opposition, and which
will be removed. The bill in print would have provided that the
mailings required under the forms of alternate notice would be
sent to rental property and any alternate address that the
tenant may have designated in writing for this purpose, and
which was acknowledged by the landlord in writing. However, in
the commercial context that this bill addresses, this simply
would have created an additional and unnecessary mailing at odds
with the underlying purpose of the bill. In addition, the bill
in print - apparently to assuage concerns about failing to
provide personal service to residential tenants - would have
required process servers to attest under penalty of perjury that
they had exercised "reasonable diligence" in their attempt to
obtain personal service. However, it became apparent that this
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change was at odds with existing case law, would have prompted
opposition from the process servers' organization, and, again,
would have created an added burden at odds with the purpose of
the bill. The proposed author amendments, below, appear to
remove all opposition.
ARGUMENT IN SUPPORT : The author states that the bill is
necessary to provide landlords with a reasonable method of
serving notice on commercial tenants, whose residential
addresses are often unknown to the landlord.
AUTHOR'S PROPOSED AMENDMENTS : In light of the above
considerations, the author will accept the following amendments
in this Committee:
Amendment 1
On page 2, before line 1, insert:
Section 1162 of the Code of Civil Procedure is amended to read
as follows:
1162. (a)Except as provided in (b), the notices required by
Sections 1161 and 1161a may be served, either by any of the
following methods :
(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.
(b) The notices required by Section 1161 may be served
upon a commercial tenant by any of the following methods:
(1) By delivering a copy to the tenant personally.
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(2) If he or she is absent from the commercial rental
property, by leaving a copy with some person 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.
(3) If a person of suitable age or discretion can not be
found at the rental property, 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 place where the
property is situated. Service upon a subtenant may be made in
the same manner.
(c)For purposes of subdivision (b), "commercial tenant"
means a person or entity that hires any real property in this
state that is not a dwelling unit, as defined in subdivision (c)
of Section 1940 of the Civil Code, or a mobilehome, as defined
in Section 798.3 of the Civil Code.
REGISTERED SUPPORT / OPPOSITION:
Support
California Apartment Association (for prior version only)
California Association of Realtors (for prior version only)
Opposition
None on file (as proposed to be amended)
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334