“Due process” is a fundamental component of almost any lawsuit, including unlawful detainer actions.   This legal concept ensures the defendant has proper notice and an opportunity to be heard in any action affecting his or her personal or property rights.  The right to receive proper notice (and the notice’s required contents) are heavily scrutinized in an unlawful detainer case, given the expedited nature of such a lawsuit and short deadlines for taking action.  This article discusses required notice procedures in a California eviction matter, for both the initial notice and the subsequent lawsuit that would follow if the initial notice is ignored by the tenant.    

Authorized Methods of Service for Initial Notice

For residential tenancies, service of almost any notice to terminate the tenancy may be made by three methods:

(1) Personal Service – by handing a copy to the tenant personally;

(2) Substitute Service – permitted when tenant is absent from his or her residence and usual place of business.  In that situation service may be made by leaving a copy of the notice with a person of suitable age and discretion at either location, and mailing a copy to the tenant at his or her place of residence, or

(3) “Posting and Mailing” – which is authorized if the tenant’s place of residence and business cannot be ascertained, or a person of suitable age or discretion cannot be found there.  Under those circumstances service may be effected by affixing a copy of the notice in a conspicuous place on the property rented to the tenant, and delivering a copy to the person residing there (if such person can be found), and also mailing a copy to the tenant at the residence. (See, Code of Civil Procedure § 1162)

If a landlord is seeking to terminate the tenancy based on a 30 or 60 Day Notice of Termination of Tenancy, he may use any of the methods described above.  Additionally, a landlord may serve a 30 or 60 Day Notice of Termination of Tenancy by certified or registered mail. (See, Civil Code § 1946 & 1946.1)

Service Requirements in a California Unlawful Detainer Case

If your tenant ignores the initial notice, the next step is to file an unlawful detainer action.  The manners in which a tenant is considered to have been legally notified of the eviction proceeding are similar, but not identical to the notice requirements that apply to the initial notice.   

Personal service and substitute service are authorized methods of serving the Summons and Complaint in an unlawful detainer case.  The “posting and mailing” option also is available in limited circumstances, but only after the plaintiff makes a diligent effort to attempt to serve the defendant personally or by substitute service.  Unlike service of the initial notice, this requires that 3 attempts be made to effectuate personal or substituted service.  If the server is unsuccessful using these methods after three attempts, the Plaintiff must then apply for and obtain a court order permitting service by posting and mailing.   

Who May Serve the Notice?

The initial notice may be served by the landlord, the landlord’s agent, or anyone over the age of 18.  The ensuing lawsuit, however, cannot be served by a party to the action such as the landlord plaintiff.    

Using a registered process server to serve eviction papers has its advantages.  Service by a registered process server creates a rebuttable presumption of proper service. This presumption can be overcome only of the tenant has specific, compelling facts showing he was not properly served. 

Is Proof of Actual Notice Required? 

The law does not require that the tenant actually receive the notice. It is enough that the landlord properly served the notice in compliance with one of the methods described above.  Conversely, proof that the tenant received actual notice can serve to cure any defects in service in some instances.

The receipt of proper notice is a threshold question the court must resolve in any eviction case. If service is not effectuated in compliance with applicable law, the landlord is typically forced to start an eviction case over from the beginning.

Lynx Legal has substantial experience preparing and serving eviction notices, having handled over 12,000 eviction cases over the last 15 years. Please contact us with any questions regarding the above, or if you are ready to start a case.  We can be reached at 925-237-9216, toll-free at 888-441-2355 or online at [email protected].  You can also schedule a telephonic consultation with one of our representatives by clicking the “Schedule a Consultation” tab on our website.