BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1263|
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THIRD READING
Bill No: AB 1263
Author: Audra Strickland (R)
Amended: 6/7/10 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 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.
CONTINUED
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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;
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.)
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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 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 provides 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
provides 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 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
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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.
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,
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Bradford, Brownley, Buchanan, Caballero, Charles
Calderon, Chesbro, Cook, Coto, De La Torre, Emmerson,
Eng, Evans, Feuer, Fletcher, Fong, Fuentes, Fuller,
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 6/17/10 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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