In California, Who Should Serve the 3-Day Notice to Pay or Quit?
Many landlords take it upon themselves to serve the 3-day notice. This is, after all, allowed. It’s not like serving the summons to appear in court for the unlawful detainer lawsuit. In that situation, the law is perfectly clear. The California Code of Civil Procedure states that “any person who is at least 18 years of age and not a party to the action" may serve the summons. As far as the, “not a party to the action," no such restrictions exist for the 3-day notice. The methods of service for the notice to terminate a tenancy can be found in California Code of Civil Procedure §1162.
Once a landlord has a holdover tenant, they generally want to act quickly. Many times they proceed without seeking the advice of an attorney, and that could come back to cause them problems. The court in Horton-Howard v. Payton, 44 Cal. App. 108 stated “The right to recover possession in an action such as this is based upon the idea that the tenant has forfeited his leasehold. The service upon defendants of such a demand for possession, or a notice to quit, as is contemplated by the statute, was a condition precedent to the forfeiture of defendants' leasehold interest. Forfeitures are not favored by the courts; every intendment and presumption is against the person seeking to enforce the forfeiture; statutes creating forfeitures must be strictly construed; and one who seeks the summary remedy of unlawful detainer allowed by the statute must bring himself clearly within its terms." Basically, an entire case depends on a properly served 3-day notice. Without it, no cause of action exists, and the court will dismiss the unlawful detainer case. All of the elements of an unlawful detainer cause of action can be found in California Code of Civil Procedure §1161.
There are other issues of concern with the 3-day notice that can get a case dismissed, but here I’m only addressing the service of the notice. If a defendant claims that the service of the 3-day notice was not done as required by law, the burden will shift to the landlord to prove that it was. If the landlord himself served the notice, then the court will have to weigh the credibility of the testimony, and the potential bias of the landlord could come into play. One way to reduce the perception of bias is for the landlord to have a friend serve the notice. Clearly, this doesn’t fully remove bias, as it is, after all, a friend. In addition, it will be required to have the person who served the notice appear in court.
Another option is to use a registered process server. It could end up being a small price to pay. In PALM PROPERTY INVESTMENTS, LLC, v. FEREYDOON YADEGAR et al., 194 Cal. App. 4th 1419; 123 Cal. Rptr. 3d 816; 2011 Cal. App. LEXIS 522, the California Court of Appeal, Second Appellate District, Division Two, looked at this very issue. The court pointed out that the “notice is valid and enforceable only if the lessor strictly complies with the specifically described notice conditions." They went on to say that by using a registered process server, California Evidence Code §647 comes into play. That section provides a presumption that shifts the burden back to the tenant. In other words, if a process server is used, it’s not up to the landlord to prove service was proper, but rather up to the tenant to prove that service wasn’t proper. The court went on to say “We agree that where service is carried out by a registered process server, Evidence Code section 647 applies to eliminate the necessity of calling the process server as a witness at trial. This conclusion is consistent with the purpose of the unlawful detainer procedure to afford a relatively simple and speedy remedy for specific landlord-tenant disputes.
The information on these pages is to help in understanding the legal process in some aspects of Landlord Tenant law. The information here is not the same as legal advice, which is unique to each set of facts. You must consult with a lawyer to determine the appropriate action in your specific case. Scott R. Rights, Esq. www.sandiegoevictioncenter.com