New Policy for 3-Day Notice Services?

Note: See 2/27/20 Update here: https://psinstitute.com/new-policy-for-3-day-notice-services-update/

There is a new interpretation changing the effective service date when deemed complete after a 3-day notice is subserved or posted. It may be finding its way to a court near you.

The California Judicial Council has apparently sent all California courts a new directive about extending that date by 10 days. This directive, which is morphing into policy, is posted on the Judicial Council’s website here:

https://www.courts.ca.gov/27723.htm

This new policy is beginning to be adopted by courts in the bay area. Highlighted are the parts that add 10 days to a subserved or posted notice. The courts that are adopting this policy will not allow the unlawful detainer case to be filed unless the service is complete.

It is not uncommon for the Judicial Council to write directives for self-represented litigants in their “Self-Help” pages. They cover several legal topics. They create forms explaining procedural requirements, such as a small claims form entitled How to Serve a Business or Public Entity (which is reasonably accurate), and how to fill out a proof of service. There are several family law topics that are posted on their website.

But this explanation on how to serve a 3-day notice is flawed in so many ways.

The issue of when service is deemed complete after subserving or posting a notice has been to the appellate courts on several occasions in the past 70+ years. The issue has mainly focused on whether the mailing should be extended 5 days, similar to the extensions for mailing a notice to an opposing party in litigation under CCP sec. 1013. That issue has been repeatedly rejected for the service of a 3-day notice, noting that the 3-day notice is a pre-litigation document, the unlawful detainer action is a summary proceeding where time is of the essence, and that service must be made that strictly complies with the requirements in Unlawful Detainer Act.

It has NEVER been 10 days.  It is for service of a summons, but never a 3-day notice.

Furthermore, not only are courts following this. Pro per or pro se litigants or non-professional process servers will also be reading this.  Note, for instance, the phrase “nail and mail”. Although the description is a colloquial term, some might read it literally. Just think what a nail might do to a $10,000 door.

The law governing service on 3-day notices is found in CCP sec. 1162

CCP section 1162.  

(a) Except as provided in subdivision (b), the notices required by Sections 1161 and 1161a may be served by any of the following methods:
(1) By delivering a copy to the tenant personally.
(2) If he or she is absent from his or her place of residence, and from his or her usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his or her place of residence.
(3) If such place of residence and business cannot be ascertained, or a person of suitable age or discretion there can not be found, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated. Service upon a subtenant may be made in the same manner.
(b) The notices required by Section 1161 may be served upon a commercial tenant by any of the following methods:
(1) By delivering a copy to the tenant personally.
(2) If he or she is absent from the commercial rental property, by leaving a copy with some person of suitable age and discretion at the property, and sending a copy through the mail addressed to the tenant at the address where the property is situated.
(3) If, at the time of attempted service, a person of suitable age or discretion is not found at the rental property through the exercise of reasonable diligence, then by affixing a copy in a conspicuous place on the property, and also sending a copy through the mail addressed to the tenant at the address where the property is situated. Service upon a subtenant may be made in the same manner.
(c) For purposes of subdivision (b), “commercial tenant” means a person or entity that hires any real property in this state that is not a dwelling unit, as defined in subdivision (c) of Section 1940 of the Civil Code, or a mobilehome, as defined in Section 798.3 of the Civil Code.(Amended by Stats. 2010, Ch. 144, Sec. 1. (AB 1263) Effective January 1, 2011.)

• CCP section 1162 says that the posting may be made “by affixing a copy in a conspicuous place on the property” – it does not have to be on the door. It could also be posted on a locked metal gate preventing access to the door, or a window close to the entryway, or on a wooden stake, sunk into the ground, 1/4 mile from the house on a farm.  All of those are conspicuous places on the property. Also, the tape is fine, but a nail could damage the door – bad advice if read literally.  
• The directive doesn’t mention that you must also attempt service at a known business before you can resort to subservice on a person or by posting the notice.
• The notice does not need to be served on someone 18 or older – the statute stated that it may be served on a person of “suitable age and discretion.” If no person of “suitable age and discretion” can be found, any “resident” may be served. That could mean a 10-year-old, alone, at home from school. 
• The mailing is to be made to the tenant at the residence, not the subject property unless it is a commercial tenant.

Finally, the directive adds a phantom 10 days to the mailing of the notice yet fails to mention that the September 1, 2019 law that changed the time calculation for service because it cannot include a weekend or holiday. (See CCP sec. 1161(2))

We’ll see how many courts adopt this. It will make for a bumpy ride for lawyers filing unlawful detainer cases in different counties. Process servers may be affected by this too.