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)
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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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