Improper Service of 3-Day Notice!!!

[sandyclaus]

My question involves an eviction in the state of: CALIFORNIA. I am seeking advice regarding the matter from someone who has knowledge of CA law and how this would be interpreted in a court action.

I am helping a tenant who has the stated issue. They have gotten behind on their rent and have received a 3-day notice in the mail.

According to CA Law, I know that such a notice must be served personally, or can be served through substituted service (upon another household member) or by posting, but none of those things occurred (they were not personally served, we checked with the other 7 household members, and no one received anything, nor was the notice posted on the rented premises anywhere). The ONLY notice they received was the one that was mailed out.

According to the law, the mailing needs to take place after either the substituted service or posting occurs, and since neither one took place first, the law would interpret service as being incomplete.

If this is true, and the LL decides to file an Unlawful Detainer action against the tenant based on the notice that was received in the mail (which is most likely), then what would be the next course of action for the tenant? Could the improper service of the requisite notice be used as a basis for a Motion to Quash? If not, how could the tenant challenge the improper service?

 

[Searchertwin]

My question involves an eviction in the state of: CALIFORNIA. I am seeking advice regarding the matter from someone who has knowledge of CA law and how this would be interpreted in a court action.

I am helping a tenant who has the stated issue. They have gotten behind on their rent and have received a 3-day notice in the mail.

According to CA Law, I know that such a notice must be served personally, or can be served through substituted service (upon another household member) or by posting, but none of those things occurred (they were not personally served, we checked with the other 7 household members, and no one received anything, nor was the notice posted on the rented premises anywhere). The ONLY notice they received was the one that was mailed out.

According to the law, the mailing needs to take place after either the substituted service or posting occurs, and since neither one took place first, the law would interpret service as being incomplete.

If this is true, and the LL decides to file an Unlawful Detainer action against the tenant based on the notice that was received in the mail (which is most likely), then what would be the next course of action for the tenant? Could the improper service of the requisite notice be used as a basis for a Motion to Quash? If not, how could the tenant challenge the improper service?

It would be hard to prove that it was never "posted". One could speculate that a neighbor hood child could have taken it down. Or it wasn't properly taped or tacked and wind took it, or a neighbor didn't like the tenant and they saw it and took it, a number of things. This is what hurts when trying to prove it was never posted. More than likely, they just mailed it and didn't post anything. Letting tenant prove otherwise.

 

[FarmerJ]

Sandy check to see the exact procedure for substitute service, EG: if server is required to make two attempts at differing times, different days for personal then can do substitute service, what you want to learn is if regular first class mail delivery that is sworn to is allowed or is the server required to use a method that gives proof like certificate of mailing , (lowest cost method with reciept that shows to whom mail was put into mail system ) Yes its true if a door is posted someone could have stolen- ripped down the notice , or one of the house mates could have taken it and is lying about it. The clerk of the court should have a form filled out for substitute service which the server would have had to fill out. If there still is doubt as to proper service I suppose the server could be summoned to court and questioned but if by chance the server was a sheriffs deputy , Ill lay odds the court would not agree with improper service claim.

 

[tranquility]

While it is impossible to know if service was proper, I suspect the landlord will be able to testify it was. Even if he lost, it just delays things a few days.

Deal with the problem. If the few days are not imperative to life functions, better to negotiate an out now than have an eviction on your record.

 

[sandyclaus]

Sandy check to see the exact procedure for substitute service, EG: if server is required to make two attempts at differing times, different days for personal then can do substitute service, what you want to learn is if regular first class mail delivery that is sworn to is allowed or is the server required to use a method that gives proof like certificate of mailing , (lowest cost method with reciept that shows to whom mail was put into mail system ) Yes its true if a door is posted someone could have stolen- ripped down the notice , or one of the house mates could have taken it and is lying about it. The clerk of the court should have a form filled out for substitute service which the server would have had to fill out. If there still is doubt as to proper service I suppose the server could be summoned to court and questioned but if by chance the server was a sheriffs deputy , Ill lay odds the court would not agree with improper service claim.

Unfortunately, there is no hard and fast rule for the number of attempts that constitutes due diligence here. And this is just the 3-Day Notice, not a Summons and Complaint.

The proper sequence of service options should be:

Personal service, then Subservice to someone on the property (after due diligence is exercised to personally serve), then posting (after due diligence is exercised to subserve).

The issue here is "due diligence". The question here is what is considered a reasonable number of attempts before moving on to the next service option?

I have found that 3 attempts (different days, different times) should be considered reasonable according to most process server/legal reference pages. Does that sound right?

And as for the other comments, yes, I am sure that a lazy or unscrupulous LL and/or their process server could easily claim subservice or posting. In fact, I am certain that it is done all the time to skirt the legal requirements for service, hoping that the tenant doesn't know how or what to challenge. Until I see their proof of service, I will have no idea what they are claiming to have done. I won't get to see a POS until the UD is filed, making this an issue for the courts at that point.

As I'm sure you will agree, it is extremely difficult to prove a negative in something like this. But as far as a court case is concerned, the LL should have the burden of proving the POSITIVE, that they DID in fact serve the 3-day notice properly, especially if it is being challenged. If that can't be proven, then the courts never gain jurisdiction at all.

 

[sandyclaus]

Sandy check to see the exact procedure for substitute service, EG: if server is required to make two attempts at differing times, different days for personal then can do substitute service, what you want to learn is if regular first class mail delivery that is sworn to is allowed or is the server required to use a method that gives proof like certificate of mailing , (lowest cost method with reciept that shows to whom mail was put into mail system ) Yes its true if a door is posted someone could have stolen- ripped down the notice , or one of the house mates could have taken it and is lying about it. The clerk of the court should have a form filled out for substitute service which the server would have had to fill out. If there still is doubt as to proper service I suppose the server could be summoned to court and questioned but if by chance the server was a sheriffs deputy , Ill lay odds the court would not agree with improper service claim.

OH, FYI... The property where the tenants live is a BACK HOUSE on the lot, with a separate entrance. They do not use the common entrance at the front house. If someone had mistakenly posted there (I say IF because no one has said anything), it STILL would be improper service because it is not an area visited or frequented by the tenants in the back house at all.

 

[FarmerJ]

Sandy to me reasonable is day one no one home at say 8am then day two go back say 6pm Which is the deal here where I live , two attempts different times of day diff days. Maybe youll have to wait for monday and a clerk of the court can tell you ?

 

[Searchertwin]

After reading a few more of your post, you are trying to hard to show this tenant that you know better about how things are done.
Using phrases like, constitutes due diligence here, "The proper sequence of service options should be," "(after due diligence is exercised to subserve)", and a few more.

Than you accuse the LL of being lazy or unscrupulous because you refuse to let the person you are trying to help believe that it was never posted.
No one cares if YOU don't see their proof of service, the fact is it was posted and she was sent a mail proves the LL did what was required. What more do you want? Have the LL personally hand it to the tenant? I don't think so.


You stated, "But as far as a court case is concerned, the LL should have the burden of proving the POSITIVE, that they DID in fact serve the 3-day notice properly, especially if it is being challenged. Who is challenging this? You or them? Seems like you are trying to hard to show them you know what you are talking about. Again as I stated, "It would be hard to prove that it was never "posted". One could speculate that a neighbor hood child could have taken it down. Or it wasn't properly taped or tacked and wind took it, or a neighbor didn't like the tenant and they saw it and took it, a number of things." So it can easily be turn around to have the tenant to prove the POSITIVE, (another big word to show you know what you are talking about), that they did not see the notice.

Usually when one fights for another and says things like, "I will have no idea what they are claiming to have done." than you are sticking your nose in a situation helping the tenants believe they did no wrong. Why would a LL go to the extreme if something wasn't done? Do you think he was bored that day? And decided it was their turn to get evicted?

 

[sandyclaus]

Sandy to me reasonable is day one no one home at say 8am then day two go back say 6pm Which is the deal here where I live , two attempts different times of day diff days. Maybe youll have to wait for monday and a clerk of the court can tell you ?

That definitely makes sense, in that due diligence means that more than one attempt needs to be made on each service method before moving to the last one. What my concern is, is that the completed 3-day notice has a fax time/date stamp at the top that indicates it the form was FAXED on the 15th to whomever received it for serving. The postmark on that envelope shows it was also MAILED on the 15th.

I would love it of CourtClerk would chime in on this one - she is always very clear and concise as to what a judge would do if faced with something like this here situation...

 

[Searchertwin]

That definitely makes sense, in that due diligence means that more than one attempt needs to be made on each service method before moving to the last one. What my concern is, is that the completed 3-day notice has a fax time/date stamp at the top that indicates it the form was FAXED on the 15th to whomever received it for serving. The postmark on that envelope shows it was also MAILED on the 15th.

I would love it of CourtClerk would chime in on this one - she is always very clear and concise as to what a judge would do if faced with something like this here situation...

I was right. You are trying to make like you know something and trying to prove it didn't happen by twisting and using big words and phrases.

Explain the following:

1) You stated, "by posting, but none of those things occurred" ]

Than you stated: " completed 3-day notice has a fax time/date stamp at the top

Which is it? Did she or did she not? You stated in YOUR OWN WORDS, that she did receive the notice. The one posted, not the mail.

2) You stated, "They have gotten behind on their rent

You stated, " "I will have no idea what they are claiming to have done."

Which is it? Are they behind in rent or you trying to get them out of not facing up to paying the rent? I believe you are trying to get them out of paying rent and getting evicted and I know I am right. Again, stick you nose some place else and have them pay their rent. Your such an idiot.

 

[Zigner]

A fax time-stamp or machine-generated report of time/date of sending means very very little. It takes about a minute to reprogram a fax machine to whatever time/date you want.

 

[FarmerJ]

Sandy If improper service is claimed and there is two different structures on the property , gotta ask , do they share one address number OR each have own? , perhaps photo of front home and photo of rear home can be offered to the court and the server can be summoned and while being shown pic of the front home they can be asked if that was the home they served? reason being , if they ID the front home as the structure they went to to serve it , then they have not properly served tenant because LL should have provided enough info so server understood there were two structures.

 

[tranquility]

I believe the OP is looking for a legal loophole rather than dealing with the problem. Focus on a 3-day service is not a winning strategy.

 

[Searchertwin]

Sandy If improper service is claimed and there is two different structures on the property , gotta ask , do they share one address number OR each have own? , perhaps photo of front home and photo of rear home can be offered to the court and the server can be summoned and while being shown pic of the front home they can be asked if that was the home they served? reason being , if they ID the front home as the structure they went to to serve it , then they have not properly served tenant because LL should have provided enough info so server understood there were two structures.

That is only if there are two address. But if the server can describe the property before he is shown the pictures, ..he is covered. Son was a server for the courts. A server protects themselves as well. They take pictures, they take notes of what is happening in the area, a number of things to show they were in that area for the purpose of serving a notice.
She has a losing battle here. As tranquility states, she is trying to find a loophole. As I stated, she is trying to find a way for the tenant to avoid paying the back rent.
Have the deadbeats pay the rent or get evicted.

 

[sandyclaus]

I was right. You are trying to make like you know something and trying to prove it didn't happen by twisting and using big words and phrases.

Explain the following:

1) You stated, "by posting, but none of those things occurred" ]

Than you stated: " completed 3-day notice has a fax time/date stamp at the top

Which is it? Did she or did she not? You stated in YOUR OWN WORDS, that she did receive the notice. The one posted, not the mail.

2) You stated, "They have gotten behind on their rent

You stated, " "I will have no idea what they are claiming to have done."

Which is it? Are they behind in rent or you trying to get them out of not facing up to paying the rent? I believe you are trying to get them out of paying rent and getting evicted and I know I am right. Again, stick you nose some place else and have them pay their rent. Your such an idiot.

The sole notice received was in the mail. The mailed copy has the timestamp as it was a faxed page, and the envelope it was mailed inhas the postmark. The "THEY" I refer to is the LL and/or the process server they paid to properly serve that notice. I have no idea what THEY are claiming to have done, as far as how they will say that the notice was served. I can only assume that because a copy was mailed, that they will either claim substituted service or "Nail and Mail", and the tenant cannot even begin to know which one until a Proof of Service is filed with the Unlawful Detainer paperwork once filed. And the 3 day period they would have to cure that default doesn't even begin until the proper service is effected, and since it wasn't, then there is a BIG problem here.

As for the idiot, I believe that YOU are the one sticking your nose in. Have any legal advice based on the question asked? Great, then offer it or kindly step off and move along.

No one said anything about them getting out of paying rent. I just know that there is a legal process that must be followed, and that if the LL fails to follow it, then they have no business filing an Unlawful Detainer with the court until they have. And the Court has no jurisdiction until it happens, either.