California Civil Jury Instructions (CACI) (2017)

4303. Sufficiency and Service of Notice of Termination for Failure to Pay Rent

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4303.Sufficiency and Service of Notice of Termination for Failure
to Pay Rent
[Name of plaintiff] contends that [he/she/it] properly gave [name of
defendant] three days’ notice to pay the rent or 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/it] must pay the amount due within three days or vacate the
property;
2. That the notice stated [no more than/a reasonable estimate of]
the amount due, and the name, telephone number, and address
of the person to whom the amount should be paid, and
2. [Use if payment was to be made personally:
2. the usual days and hours that the person would be available to
receive the payment; and]
2. [or: Use if payment was to be made into a bank account:
2. the number of an account in a bank located within five miles of
the rental property into which the payment could be made, and
the name and street address of the bank; and]
2. [or: Use if an electronic funds transfer procedure had been
previously established:
2. that payment could be made by electronic funds transfer; 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:]
3. [the notice was delivered to [name of defendant] personally[./; or]]
3. [[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] 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]]
3. [for a residential tenancy:
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3. [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].]
3. [or for a commercial tenancy:
3. 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 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 pay the rent
or 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.]
[A notice stating a reasonable estimate of the amount of rent due that is
within 20 percent of the amount actually due is reasonable unless [name
of defendant] proves that it was not reasonable. In determining the
reasonableness of the estimate, you may consider whether calculating
the amount of rent required information primarily within the
knowledge of [name of defendant] and whether [name of defendant]
accurately furnished that information to [name of plaintiff].]
New August 2007; Revised December 2010, June 2011, December 2011
Directions for Use
Use the reasonable-estimate option in the first sentence of element 2 and include
the final paragraph only in cases involving commercial leases. (Code Civ. Proc.,
§ 1161.1(a); see also Code Civ. Proc., § 1161.1(e) [presumption that if amount
found to be due is within 20 percent of amount stated in notice, then estimate was
reasonable].)
In element 2, select the applicable manner in which the notice specifies that
payment is to be made; directly to the landlord, into a bank account, or by
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electronic funds transfer. (Code Civ. Proc., § 1161(2).)
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 rental
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 third-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, provided that it is not less
than three days.
Defective service may be waived if defendant admits 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.
Local ordinances may impose additional notice requirements for the termination of
a rental agreement. This instruction should be modified accordingly.
Sources and Authority
• Conclusive Presumption of Receipt of Rent Sent to Address Provided in Notice.
Code of Civil Procedure section 1161(2).
• Commercial Tenancy: Estimate of Rent Due in Notice. Code of Civil Procedure
1161.1.
• Manner of Service of Notice. Code of Civil Procedure section 1162.
• “ ‘[P]roper service on the lessee of a valid three-day notice to pay rent or quit
is an essential prerequisite to a judgment declaring a lessor’s right to possession
under section 1161, subdivision 2. [Citations.]’ [Citation.] ‘A lessor must allege
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and prove proper service of the requisite notice. [Citations.] Absent evidence the
requisite notice was properly served pursuant to section 1162, no judgment for
possession can be obtained. [Citations.]’ ” (Borsuk v. Appellate Division of
Superior Court (2015) 242 Cal.App.4th 607, 611 [195 Cal.Rptr.3d 581].)
• “A three-day notice must contain ‘the amount which is due.’ A notice which
demands rent in excess of the amount due does not satisfy this requirement.
This rule ensures that a landlord will not be entitled to regain possession in an
unlawful detainer action unless the tenant has had the opportunity to pay the
delinquent rent.” (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697 [32
Cal.Rptr.2d 635], internal citations and footnote omitted.)
• “As compared to service of summons, by which the court acquires personal
jurisdiction, service of the three-day notice is merely an element of an unlawful
detainer cause of action that must be alleged and proven for the landlord to
acquire possession.” (Borsuk, supra, 242 Cal.App.4th at pp. 612–613.)
• “[W]e do not agree that a proper notice may not include anything other than
technical rent. It is true that subdivision 2 of Code of Civil Procedure section
1161 relates to a default in the payment of rent. However, the subdivision refers
to the ‘lease or agreement under which the property is held’ and requires the
notice state ‘the amount which is due.’ The language is not ‘the amount of rent
which is due’ or ‘the rent which is due.’ We think the statutory language is
sufficiently broad to encompass any sums due under the lease or agreement
under which the property is held.” (Canal-Randolph Anaheim, Inc. v. Wilkoski
(1978) 78 Cal.App.3d 477, 492 [144 Cal.Rptr. 474].)
• “[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.” (Davidson, supra,
138 Cal.App.3d Supp. at p. 14.)
• “We . . . hold that service of the three-day notice by posting and mailing is
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effective on the date the notice is posted and mailed.” (Walters, supra, 226
Cal.App.3d Supp. at p. 20.)
• “An unlawful detainer action based on failure to pay rent must be preceded by
a three-day notice to the tenant to pay rent or quit the premises. Failure to state
the exact amount of rent due in the notice is fatal to the subsequent unlawful
detainer action.” (Lynch & Freytag v. Cooper (1990) 218 Cal.App.3d 603, 606,
fn. 2 [267 Cal.Rptr. 189], internal citations omitted.)
• “[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.” (Valov,supra, 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 three-day 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 three-day notice to pay rent or quit 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 three-day 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
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Cal.App.4th at p. 752, internal citation omitted.)
Secondary Sources
12 Witkin, Summary of California Law (10th ed. 2006) Real Property, §§ 720,
722–725, 727
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.26–8.68
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 5.2, 6.10–6.30, Ch.
8
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 5-G, Eviction
Controls, ¶¶ 5:224.3, 5:277.1 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 7-C, Bases For
Terminating Tenancy, ¶¶ 7:98.10, 7:327 (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.22 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.11, 5.12
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.11 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, §§ 236.13,
236.13A (Matthew Bender)
Miller & Starr, California Real Estate (3d ed. 2008) Ch. 19, Landlord-Tenant,
§§ 19:202–19:204 (Thomson Reuters)
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