Liebovich v. Shahrokhkhany (56 Cal. App. 4th 511, 1997)

Opinion

TURNER, P. J.

Introduction

Kamyar Shahrokhkhany (defendant) appeals from the judgment in favor of his landlord, Ted Liebovich, as trustee of the Liebovich 1984 Trust (plaintiff), in this unlawful detainer action. Defendant operated a newsstand on property leased from plaintiff. He was served with a three-day notice to pay rent or quit by certified mail. Defendant denied he ever received the notice. We conclude as follows: There was no substantial evidence defendant was properly served; Code of Civil Procedure section 1162 does not authorize service of a three-day notice to pay rent or quit by mail alone, certified or otherwise; therefore, even if there was substantial evidence the notice was served by certified mail (a question we need not decide), there was no proof of compliance with section 1162; and the decisional authority on which plaintiff relies—holding a party’s acknowledgment or admission notice was received by mail amounts to personal delivery—is inapplicable to this case in which defendant denied, in his answer and at trial, he had received the document. Therefore, the judgment must be reversed.

Discussion

Proper service on the lessee of a valid three-day notice to pay rent or quit is an essential prerequisite to a judgment declaring a lessor’s right to possession under section 1161, subdivision 2. (Jordan v. Talbot (1961) 55 Cal.2d 597, 608-609 [12 Cal.Rptr. 488, 361 P.2d 20, 6 A.L.R.3d 161]; Lacrabere v. Wise (1904) 141 Cal. 554, 556 [75 P. 185]; Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697 [32 Cal.Rptr.2d 635]; Kwok v. Bergren (1982) 130 Cal.App.3d 596, 599-600 [181 Cal.Rptr. 795]; Lamey v. Masciotra (1969) 273 Cal.App.2d 709, 713-714 [78 Cal.Rptr. 344]; Samuels v. Singer (1934) 1 Cal.App.2d 545, 549-550 [36 P.2d 1098].) A lessor must allege and prove proper service of the requisite notice. (Lacrabere v. Wise, supra, 141 Cal. at p. 556; Samuels v. Singer, supra, 1 Cal.App.2d at p. 549 [no unlawful detainer cause of action stated where complaint did not allege service of three-day notice].) Absent evidence the requisite notice was properly served pursuant to section 1162, no judgment for possession can be obtained. (Jordan v. Talbot, supra, 55 Cal.2d at pp. 608-609; Lacrabere v. Wise, supra, 141 Cal. at pp. 555-557; Kwok v. Bergren, supra, 130 Cal.App.3d at pp. 599-600.)

A lessor must strictly comply with the statutorily mandated requirements for service of a three-day notice to pay rent or quit. (Jordan v. Talbot, supra, 55 Cal.2d at pp. 608-609; Kwok v. Bergren, supra, 130 Cal.App.3d at pp. 599-600; Lamey v. Masciotra, supra, 273 Cal.App.2d at p. 713; cf. Bevill v. Zoura, supra, 27 Cal.App.4th at pp. 697-698 [strict compliance with statutory mandate as to contents of notice required].) Section 1162 provides for service of the notice by three alternative methods: “1. By delivering a copy to the tenant personally; or, [^D 2. If he be absent from his place of residence, and from his 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 place of residence; or, [^Q 3. If such place of residence and business can not 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.” When the fact of service is contested, compliance with one of these methods must be shown or the judgment must be reversed. (Jordan v. Talbot, supra, 55 Cal.2d at pp. 608-609 [mere act of posting notice under door did not comply with section 1162]; Kwok v. Bergren, supra, 130 Cal.App.3d at pp. 598, 600 [in a case involving multiple tenants and subtenants, showing notice to purported manager of leased premises and mailing a single copy to that address did not comply with section 1162]; Lamey v. Masciotra, supra, 273 Cal.App.2d at p. 714 [sending notice solely by registered letter was “clearly deficient”].)

The evidence of service produced at trial consisted of two items. First, there was an affidavit of service by certified mail. Second, there was a certified mail return receipt bearing the signature of an unidentified person as “addressee.” The address on the affidavit of service and the return receipt was that of a separate business operated by defendant next door to the leased property. The evidence was admitted over defendant’s objection. Defense counsel specifically argued there was no valid service. Defense counsel further argued that the proof of service was inadmissible—the person who served the motion had to testify. Defendant denied, both in his answer and at trial, that he had ever received the three-day notice.

Plaintiff contends: There was substantial evidence defendant was served by certified mail and mailing a three-day notice to pay rent or quit is equivalent to personal delivery within the meaning of section 1162, subdivision 1. We conclude that even if there was substantial evidence the three-day notice was served by certified mail, plaintiff failed to prove compliance with section 1162.

We need not decide whether there was sufficient evidence of service by certified mail. Even if there was such proof, there was no evidence of compliance with section 1162. We note, however, that the affidavit of service alone (putting aside questions concerning the return receipt) was insufficient to prove the controverted fact of service. (Lacrabere v. Wise, supra, 141 Cal. at pp. 556-557; see Estate of Fraysher (1956) 47 Cal.2d 131, 135 [301 P.2d 848].) Affidavits of service may not be relied on at trial to prove a three-day notice was served pursuant to section 1162; testimony of the person who made the service is required. (47 Cal.2d 131, 135.) As the Supreme Court explained in Lacrabere v. Wise, supra, 141 Cal. at pages 556-557: “It is an essential prerequisite to the maintenance of an action for unlawful detainer, under section 1161 of the Code of Civil Procedure, that a three days’ notice . . . should be served upon the defendants, as subdivision 2 of that section requires. It is equally essential to allege the service of such demand in the complaint, and, if controverted, prove it on the trial. Service is an act to be performed before suit, a fact to be alleged in bringing suit, and a fact to be proven to successfully maintain it, and such fact is to be proven as any other disputed fact in the case. The rule is, that the best evidence must be produced which the nature of the transaction will permit; the testimony of witnesses given in open court where the adverse party may have an opportunity of cross-examination. Affidavits are not in the nature of the best evidence by which to prove issuable facts. They rank on no higher plane for that purpose than hearsay evidence. [*fl] Counsel for respondent relies solely upon the construction he places on section 2009 of the Code of Civil Procedure to support the method of proof adopted by him. [