California Civil Jury Instructions (CACI) (2017)

4307. Sufficiency and Service of Notice of Termination of Month-to-Month Tenancy

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4307.Sufficiency and Service of Notice of Termination of Month-
to-Month Tenancy
[Name of plaintiff] contends that [he/she/it] properly gave [name of
defendant] written notice that the tenancy was ending. 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 the
tenancy would end on a date at least [30/60] days after notice
was given to [him/her/it];
2. That the notice was given to [name of defendant] at least [30/60]
days before the date that the tenancy was to end; and
3. That the notice was given to [name of defendant] at least [30/60]
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. [the notice was sent by certified or registered mail in an envelope
addressed to [name of defendant], in which case notice is
considered given on the date the notice was placed in the mail[./;
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 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 property in an envelope addressed to
[name of defendant]. In this case, notice is considered given on the
date the second notice was placed in the mail.]
3. [or for a commercial tenancy:
3. at the time of attempted service, a responsible person could not
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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
placed in the mail.]
[The [30/60]-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 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
Select the applicable number of days’ notice required by statute. Thirty days is
sufficient for commercial tenancies, residential tenancies of less than a year’s
duration, and certain transfers of the ownership interest to a bona fide purchaser.
For residential tenancies of a year or more’s duration, 60 days is generally required.
(Civ. Code, §§ 1946, 1946.1(b)–(d).)
If 30 days’ notice is sufficient and the lease provided for a notice period other than
the statutory 30-day period (but not less than 7), insert that number instead of “30”
or “60” throughout the instruction. (Civ. Code, § 1946.)
Select all manners of service used, including personal service, certified or registered
mail, substituted service by leaving the notice at the defendant’s home or place of
work or at the rental property, and substituted service by posting on the property.
(See Civ. Code, §§ 1946, 1946.1(f); Code Civ. Proc., § 1162.)
Read the next-to-last paragraph if the last day of the notice period fell on a
Saturday, Sunday, or holiday.
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
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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
• Automatic Renewal of Tenancy at End of Term. Civil Code section 1946.
Time and Manner of Giving Notice of Termination. Civil Code section 1946.1.
• 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 . . . notice . . . 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.)
• “[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 . . . 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
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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. 2005) Real Property, §§ 680, 727
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 8-B, Unlawful
Detainer Complaint, ¶¶ 8:68, 8:69 (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 7-C, Bases For
Terminating Tenancy, ¶¶ 7:119, 7:190 et seq. (The Rutter Group)
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.69–8.80
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) § 5.3, Ch. 7
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.27 (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,
§§ 236.10–236.12 (Matthew Bender)
Miller & Starr, California Real Estate 3d, §§ 19:188, 19:192 (Thomson Reuters)
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