CACI 4309 Sufficiency and Service of Notice of Termination for Nuisance or Unlawful Use

California Civil Jury Instructions CACI

4309 Sufficiency and Service of Notice of Termination for Nuisance or Unlawful Use

[Name of plaintiff] contends that [he/she/nonbinary pronoun/it] properly gave [name of defendant] three days’ notice to vacate the property. To prove that the notice contained the required information and was properly given, [name of plaintiff] must prove all of the following:

1.That the notice informed [name of defendant] in writing that [he/she/nonbinary pronoun/it] must vacate the property within three days;

2.That the notice described how [name of defendant] [created a nuisance on the property/ [or] used the property for an illegal purpose]; and

3.That the notice was given to [name of defendant] at least three days before [insert date on which action was filed].

Notice was properly given if [select one or more of the following manners of service:]

[the notice was delivered to [name of defendant] personally[./; or]]

[[name of defendant] was not at [home or work/the commercial rental property], and the notice was left with a responsible person at [[name of defendant]’s residence or place of work/the commercial property], and a copy was also mailed in an envelope addressed to [name of defendant] at [[his/her/nonbinary pronoun] residence/the commercial property]. In this case, notice is considered given on the date the second notice was [received by [name of defendant]/placed in the mail][./; or]]

[for a residential tenancy:

[name of defendant]’s place of residence and work could not be discovered, or a responsible person could not be found at either place, and (1) the notice was posted on the property in a place where it would easily be noticed, (2) a copy was given to a person living there if someone could be found, and (3) a copy was also mailed to the address of the rented property in an envelope addressed to [name of defendant]. In this case, notice is considered given on the date the second notice was [received by [name of defendant]/placed in the mail].]

[or for a commercial tenancy:

at the time of attempted service, a responsible person could not be found at the commercial rental property through the exercise of reasonable diligence, and (1) the notice was posted on the property in a place where it would easily be noticed, and (2) a copy was also mailed to the address of the commercial property in an envelope addressed to [name of defendant]. In this case, notice is considered given on the date the second notice was [received by [name of defendant]/placed in the mail].]

[The three-day notice period begins on the day after the notice was given to [name of defendant]. If the last day of the notice period falls on a Saturday, Sunday, or holiday, [name of defendant]’s time to correct the failure or to vacate the property is extended to include the first day after the Saturday, Sunday, or holiday that is not also a Saturday, Sunday, or holiday.]

Directions for Use

Select the manner of service used: personal service, substituted service by leaving the notice at the defendant’s home or place of work or at the commercial property, or substituted service by posting on the property. (See Code Civ. Proc., § 1162.)

There is a conflict in the case law with respect to when the three-day period begins if substituted service is used. Compare Davidson v. Quinn (1982) 138 Cal.App.3d Supp. 9, 14 [188 Cal.Rptr. 421] [tenant must be given three days to pay, so period does not begin until actual notice is received] with Walters v. Meyers (1990) 226 Cal.App.3d Supp. 15, 19–20 [277 Cal.Rptr. 316] [notice is effective when posted and mailed]. This conflict is accounted for in the second, third, and fourth bracketed options for the manner of service.

Read the next-to-last paragraph if the last day of the notice period fell on a Saturday, Sunday, or holiday.

If a lease specifies a time period for giving notice other than the three-day period, substitute that time period for three days throughout the instruction, provided that it is not less than three days.

Defective service may be waived if defendant admits timely receipt of notice. (See Valov v. Tank (1985) 168 Cal.App.3d 867, 876 [214 Cal.Rptr. 546].) However, if the fact of service is contested, compliance with the statutory requirements must be shown. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425 [123 Cal.Rptr.3d 816].) Therefore, this instruction does not provide an option for the jury to determine whether or not defective service was waived if there was actual receipt.

If a commercial lease requires service by a particular method, actual receipt by the tenant will not cure the landlord’s failure to comply with the service requirements of the lease. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4th 744, 752 [110 Cal.Rptr.3d 833].) Whether the same rule applies to a residential lease that specifies a method of service has not yet been decided.

The Tenant Protection Act of 2019 and/or local ordinances may impose additional notice requirements for the termination of a rental agreement. (See, e.g., Civ. Code, § 1946.2(a) [“just cause” requirement for termination of certain residential tenancies], (b) [“just cause” defined].) This instruction should be modified accordingly if applicable.

Sources and Authority

Unlawful Detainer Based on Tenant Conduct. Code of Civil Procedure section 1161(4).

Manner of Service of Notice. Code of Civil Procedure section 1162.

Tenant Protection Act of 2019. Civil Code section 1946.2.

“[T]he service and notice provisions in the unlawful detainer statutes and [Code of Civil Procedure] section 1013 are mutually exclusive, and thus, section 1013 does not extend the notice periods that are a prerequisite to filing an unlawful detainer action.” (Losornio v. Motta (1998) 67 Cal.App.4th 110, 112 [78 Cal.Rptr.2d 799].)

“Section 1162 does not authorize service of a three-day notice to pay rent or quit by mail delivery alone, certified or otherwise. It provides for service by: personal delivery; leaving a copy with a person of suitable age and discretion at the renter’s residence or usual place of business and sending a copy through the mail to the tenant’s residence; or posting and delivery of a copy to a person there residing, if one can be found, and sending a copy through the mail. Strict compliance with the statute is required.” (Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 516 [65 Cal.Rptr.2d 457], original italics, internal citation omitted.)

“We … hold that service made in accordance with section 1162, subdivision 3, as applied to section 1161, subdivision 2, must be effected in such a manner as will give a tenant the three days of written notice required by the Legislature in which he may cure his default in the payment of rent.” (Davidsonsupra, 138 Cal.App.3d Supp. at p. 14.)

“We … hold that service of the three-day notice by posting and mailing is effective on the date the notice is posted and mailed.” (Walterssupra, 226 Cal.App.3d Supp. at p. 20.)

“Plaintiff argues, however, that he should be allowed to amend his complaint so as to bring his action under section 1161, subdivision 4. The notice thereunder required need not be framed in the alternative. However, plaintiff has at no time, either by his three days’ notice or in any of his pleadings, suggested that defendant had assigned the lease or sublet the property, or had committed waste contrary to the conditions or covenants of the lease, or maintained a nuisance on the premises, or had used the property for an unlawful purpose. Plaintiff had three opportunities to state a cause of action; if he was of the belief that facts existed which brought his case under 1161, subdivision 4, it would have been a simple matter to allege such facts, but this he did not do.” (Hinman v. Wagnon (1959) 172 Cal.App.2d 24, 29 [341 P.2d 749].)

“[D]efendant admitted in his answer that he ‘ultimately received [the relevant] notice’ but ‘affirmatively allege[d] that he was not properly and legally served’ with a valid notice. We find that, under the circumstances of this case, the defendant waived any defect in the challenged service of the notice under section 1162, subdivision 1.” (Valovsupra, 168 Cal.App.3d at p. 876.)

“In the cases discussed … , a finding of proper service turned on a party’s acknowledgment or admission the notice in question was in fact received. In the present case, defendant denied, in his answer and at trial, that he had ever received the … notice. Because there was no admission of receipt in this case, service by certified mail did not establish or amount to personal delivery. Further, there was no evidence of compliance with any of the three methods of service of a … notice … provided in section 1162. Therefore, the judgment must be reversed.” (Liebovich, supra, 56 Cal.App.4th at p. 518.)

“[Code of Civil Procedure section 1162 specifies] three ways in which service of the … notice may be effected on a residential tenant: … . As explained in Liebovich, supra, … , ‘[w]hen the fact of service is contested, compliance with one of these methods must be shown or the judgment must be reversed.’ ” (Palm Property Investments, LLC, supra, 194 Cal.App.4th at p. 1425.)

“In commercial leases the landlord and commercial tenant may lawfully agree to notice procedures that differ from those provided in the statutory provisions governing unlawful detainer.” (Culver Center Partners East #1, L.P.supra, 185 Cal.App.4th at p.750.)

“[E]ven if some policy rationale might support such a waiver/forfeiture [by actual receipt] rule in the residential lease context, there is no basis to apply it in the commercial context where matters of service and waiver are prescribed in the lease itself. Nothing in the parties’ lease suggests actual receipt of a notice to quit results in the waiver or forfeiture of [tenant]’s right to service accomplished in the manner prescribed. To the contrary, the lease specifically provides, ‘No covenant, term or condition, or breach’ of the lease ‘shall be deemed waived except if expressly waived in a written instrument executed by the waiving party.’ Although [tenant’s agent] acted on the notice to quit by attempting to deliver the rent check, neither her fortuitous receipt of the notice nor her actions in response to it constitutes an express waiver of the notice provisions in the lease.” (Culver Center Partners East #1, L.P.supra, 185 Cal.App.4th at p. 752, internal citation omitted.)

Secondary Sources

12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 701, 759, 760
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.62–8.68
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 6.25–6.29
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 7-C, Bases For Terminating Tenancy, ¶¶ 7:98.5 et seq., 7:137 et seq. (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, § 210.24 (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and Procedures, § 200.21 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 4, Termination of Tenancy, 4.23
29 California Forms of Pleading and Practice, Ch. 332, Landlord and Tenant: The Tenancy, § 332.28 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant: Eviction Actions, § 333.10 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, § 236.11 (Matthew Bender)
Miller & Starr California Real Estate 4th, §§ 34:182, 34:183 (Thomson Reuters)