Legal Question in Landlord & Tenant Law in California

Re: Eviction Notice not legally served

Without seeing the actual notice, it is difficult to determine whether it is a proper one. Most thirty or sixty day notices that I have seen state that the 'tenancy shall terminate on [fill in date here] or 60 days from the service of this notice upon you, whichever is later'. Often a landlord has a difficult time finding a tenant to serve the notice, so the notice is a few days old before service is accomplished.

As for the method used for service, there are a few different ways a landlord can serve the notice. For more detail, look at California Code of Civil Procedure section 1162. The law favors personal service of the notice, that is, when someone personally hands the notice to the tenant. A landlord may serve the notice himself (this is not so for an unlawful detainer complaint, but that's a different issue).

If the tenant is absent from his or her place of residence and from his or her usual place of business, the landlord may serve the notice on a person of suitable age AND mail the notice.

If, in your situation, you have someone of suitable age (not necessarily 18, simply old enough to understand that the notice is important), is it possible that the landlord served the notice on this person and then mailed it to you? Is it possible that the landlord served someone at your workplace and then mailed it to you?

Or, if the landlord cannot determine your place of business (or residence, which is unlikely here since you rent your residence from him), or if no person of suitable age can be found at either place, he may post a copy of the notice in a conspicuous place on the residence (i.e., taping or tacking it to the front door) AND mail a copy of it to the tenant to accomplish service.

If you fail to leave the residence by the date specified in the notice, your landlord may file an unlawful detainer lawsuit against you to obtain assistance from the court in evicting you from the property. I have seen cases where the landlord admits in court that he only mailed a copy of the notice to the tenant, which, pursuant to section 1162, is not sufficient service of the notice. The unlawful detainer complaint based upon the defectively served notice was then dismissed.

The point is, even if the notice was defectively served, there is nothing to prevent the landlord from filing a suit against you. Depending on facts that you may or may not know (such as whether the landlord attempted to personally serve you before mailing), it may not be worth the risk to depend on defective service as your defense.

Good luck!

Clayton

P.S. Also see Civil Code section 1942.5 for another possible defense