California Civil Jury Instructions (CACI) (2017)

4305. Sufficiency and Service of Notice of Termination for Violation of Terms of Agree- ment

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4305.Sufficiency and Service of Notice of Termination for
Violation of Terms of Agreement
[Name of plaintiff] contends that [he/she/it] properly gave [name of
defendant] three days’ notice to [either comply with the requirements of
the [lease/rental agreement/sublease] 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, within three days, [either comply with the
requirements of the [lease/rental agreement/sublease] or] vacate
the property;
2. That the notice described how [name of defendant] failed to
comply with the requirements of the [lease/rental
agreement/sublease] [and how to correct the failure];
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 home 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:
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:
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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 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.]
New August 2007; Revised December 2010, June 2011, December 2011
Directions for Use
If the violation of the condition or covenant involves assignment, subletting, or
waste, or if the breach cannot be cured, the landlord is entitled to possession on
service of a three-day notice to quit; no opportunity to cure by performance is
required. (Code Civ. Proc., § 1161(4); Salton Community Services Dist. v. Southard
(1967) 256 Cal.App.2d 526, 529 [64 Cal.Rptr. 246].) In such a case, omit the
bracketed language in the first paragraph and in elements 1 and 2. If the violation
involves nuisance or illegal activity, give CACI No. 4309, Suffıciency and Service
of Notice of Termination for Nuisance or Unlawful Use.
If the plaintiff is the landlord or owner, select either “lease” or “rental agreement”
in the optional language in the opening paragraph and in elements 1 and 2.
Commercial documents are usually called “leases” while residential documents are
often called “rental agreements.” Select the term that is used on the written
document. If the plaintiff is a tenant seeking to recover possession from a
subtenant, select “sublease.” (Code Civ. Proc., § 1161(3).)
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.
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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.
Local ordinances may impose additional notice requirements for the termination of
a rental agreement. This instruction should be modified accordingly.
Sources and Authority
• Unlawful Detainer Based on Failure to Perform Conditions. Code of Civil
Procedure section 1161(3), (4).
• Manner of Service of Notice. Code of Civil Procedure section 1162.
• “[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
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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
effective on the date the notice is posted and mailed.” (Walters, supra, 226
Cal.App.3d Supp. at p. 20.)
• “It is well settled that the notice required under [Code Civ. Proc., § 1161]
subdivisions 2 and 3 (where the condition or covenant assertedly violated is
capable of being performed) must be framed in the alternative, viz., pay the rent
or quit, perform the covenant or quit, and a notice which merely directs the
tenant to quit is insufficient to render such tenant guilty of unlawful detainer
upon his continued possession.” (Hinman v. Wagnon (1959) 172 Cal.App.2d 24,
27 [341 P.2d 749], original italics.)
• “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,supra, 172
Cal.App.2d at p. 29.)
• “Where a covenant in a lease has been breached and the breach cannot be
cured, a demand for performance is not a condition precedent to an unlawful
detainer action.” (Salton Community Services Dist.,supra, 256 Cal.App.2d at p.
529.)
• “[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
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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 (10th ed. 2006) Real Property, §§ 720, 726,
727
1California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.46 et seq., 8.62 et
seq.
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 5.2, 6.10–6.16,
6.25–6.29, 6.38–6.49, Ch. 8
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.23, 210.24 (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, §§ 236.11,
236.12 (Matthew Bender)
Miller & Starr, California Real Estate (3d ed. 2008) Ch. 19, Landlord-Tenant,
§§ 19:200–19:205 (Thomson Reuters)
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