Highland Plastics, Inc. v. Enders

• Citation: 109 Cal.App.3d Supp. 1,167 Cal.Rptr. 353
• Decision Date: 24 June 1980
• Docket Number: No. 14557,14557
• Parties: 109 Cal.App.3d Supp. 1 HIGHLAND PLASTICS, INC., Plaintiff and Respondent, v. Max L. ENDERS, Defendant and Appellant. Civ. A. Appellate Department, Superior Court, Los Angeles County, California
• Court: United States Superior Court (California)

Page 353

167 Cal.Rptr. 353

109 Cal.App.3d Supp. 1

HIGHLAND PLASTICS, INC., Plaintiff and Respondent, v. Max L. ENDERS, Defendant and Appellant.

Civ. A. No. 14557.

Appellate Department, Superior Court, Los Angeles County, California.

June 24, 1980.

As Modified July 16, 1980.

Maurice A. Benson, Long Beach, for defendant and appellant.

Gray, White & Burkitt and William R. Burkitt, Los Angeles, for plaintiff and respondent.

Marvin E. Krakow, Long Beach, for amicus curiae.

FAINER, Judge.

Defendant appeals from an unlawful detainer judgment contending that the notice terminating his month-to-month tenancy was not properly served; that the thirty-day period of the notice was extended five days under CODE OF CIVIL PROCEDURE SECTION 1013 SUBPARAGRAPH (A)¹ because it was served by mail; that plaintiff had waived the right to proceed in this unlawful detainer action because it had accepted defendant's rent check during the 30-day notice period, and finally, that defendant was entitled to certain relocation and notice rights under the California Administrative Code, title 25, chapter 6 because plaintiff had acquired the rented premises from defendant in a real property acquisition under the authority of the Pasadena Redevelopment Agency herein called Agency.

These contentions are without merit and we affirm the judgment.

Defendant had owned real property in Pasadena which was used as his business and residence. After eminent domain proceedings were commenced against him by the Pasadena Redevelopment Agency, defendant agreed with the Agency to sell the property to plaintiff or his assignees, reserving to plaintiff a leasehold interest therein. Plaintiff subsequently arranged for Fair Oaks Partnership to purchase said property. The terms of the sale permitted defendant to remain in possession without charge until June 30, 1977, and then at a monthly rental until December 31, 1978, when his rights under the sales agreement expired.

As a part of the sales transaction, defendant assigned his relocation assistance right from the Agency to plaintiff.

On February 9, 1979, plaintiff had the marshal serve a 30-day notice terminating defendant's month-to-month tenancy. (Civ.Code, § 1946.) This service was accomplished on February 9, 1979, by posting the notice on the property and mailing a copy on the same day to defendant's address. Defendant did not vacate the premises. Plaintiff filed its unlawful detainer complaint on March 16, 1979.

1. The service of the 30-day notice was proper.

Defendant contends that the service of the notice by posting and mailing did not comply with the provisions of section 1162, subdivision 3. He argues that posting and mailing method of service of a notice terminating a tenancy must be preceded by an attempted personal service. Section 1162 provides three methods of service of notices terminating a tenancy; by personal delivery to the tenant or by substituted service when the tenant is 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 by mail addressed to the tenant's residence address, or by substituted service by posting and mailing when the tenant's residence and business addresses cannot be ascertained.

This code section does not require a showing of reasonable diligence in attempting personal service before utilizing the substituted service provisions, as required in section 415.20, subdivision (b). The "post and mail" provision of section 1162, subdivision 3 does require, however, that if the tenant cannot be located for personal service that the person making this substituted service first determine either that the tenant's ". . . place of residence and business cannot be ascertained, or that a person of suitable age or discretion there cannot be found, . . . ." The deputy marshal who made the substituted service in our present case testified that when he attempted to serve the 30-day notice on defendant, no one answered his knock on the door of the premises which had been identified to him as the place of residence and business of defendant. When there was no response to the deputy's knock, he then posted the notice "in a conspicuous place on the property" and mailed a copy to the place where the property is situated. This is substantial evidence supporting the trial court's finding that there had been a proper service of the notice utilizing the "post and mail" provisions. When defendant could not be found, one of the two ways of substituted service of the notice was proper and when a person of suitable age and discretion could not be found, the "post and mail" method of service could be accomplished. ² The service of the 30-day notice to terminate defendant's month-to-month tenancy was proper under the provisions of section 1162, subdivision 3. ³

2. Section 1013, subdivision (a) does not extend the notice period under Civil Code, section 1946 when the notice is served pursuant to the "post and mail" provisions of section 1162, subdivision 3.

The notice to terminate was served on February 9, 1979, and the unlawful detainer action was filed 35 days later on March 16, 1979. The 35 days is computed, under section 12, by excluding the first day, February 9th and including the last day, March 16th. If the defendant is correct in his contention that the 35-day notice period is extended 5 additional days because the service was accomplished by the "post and mail" procedure, then the unlawful detainer action was filed prematurely and the judgment must be reversed. The tenancy is not terminated on the giving of the notice but on expiration of the notice period. (Nicolaysen v. Pacific Home (1944) 65 Cal.App.2d 769, 773, 151 P.2d 567.) There is no cause of action until after the tenancy has been terminated. (See Bauer v. Neuzil (1944) 66 Cal.App.2d Supp. 1020, 1029, 152 P.2d 47.) We hold that the notice period is not extended by provisions of section 1013, subdivision (a) and plaintiff's unlawful detainer action was not prematurely filed. The more recent and better reasoned appellate court decisions have held that the provisions of section 1013, subdivision (a) are applicable to all pleadings, notices and other documents filed subsequent to the filing and service of the complaint ⁴ unless the Legislature has expressed a clear intention to exclude a subsequently filed document from the extension provisions. ⁵ Delgado v. Superior Court (1977) 74 Cal.App.3d 560, 141 Cal.Rptr. 528 (motion for change of venue); Shearer v. Superior Court (1977) 70 Cal.App.3d 424, 138 Cal.Rptr. 824 (petition for writ of mandamus); Shell Oil v. Superior Court (1975) 50 Cal.App.3d 489, 123 Cal.Rptr. 307 (pretrial discovery motion); California Accounts, Inc. v. Superior Court (1975) 50 Cal.App.3d 483, 123 Cal.Rptr. 304 (pretrial discovery motion); Richards v. Miller (1980) 106 Cal.App.3d Supp. 13, 165 Cal.Rptr. 276.) The appellate courts have not permitted the extension provisions to be expanded to precomplaint government tort claims (Smith v. City and County of San Francisco (1977) 68 Cal.App.3d 227, 137 Cal.Rptr. 146; Thierfeldt v. Marin Hospital District (1973) 35 Cal.App.3d 186, 110 Cal.Rptr. 791), but have applied the extensions of section 1013, subdivision (a) to service of notices of decisions and orders of administrative agencies and tribunals (Pesce v. Dept. Alcoholic Beverage Control (1958) 51 Cal.2d 310, 311, 333 P.2d 15) and to the criminal trial court related 180-day period set forth in Penal Code, section 1305 to move the court to set aside a prior court order forfeiting and exonerating bail (People v. National Automobile & Casualty Ins. Co. (1979) 92 Cal.App.3d 907, 155 Cal.Rptr. 602). In a 1936 case (Colyear v. Tobriner (1936) 7 Cal.2d 735, 743, 62 P.2d 741) our Supreme Court, in an interpretation of the extension provisions of a predecessor of section 1013, subdivision (a), stated that mail provisions of the Code of Civil Procedure did not apply to the situations where notice is required to be given, under the Civil Code, independent of any action. (See White v. De Martini (1960) 183 Cal.App.2d 665, 668, 6 Cal.Rptr. 782.) We believe that this rule is still applicable for notices required as condition precedent to an unlawful detainer action even though the method of giving the notice is now set forth in the Code of Civil Procedure.

The purpose of section 1013, subdivision (a) is to make allowances for the uncertainties of mail delivery by giving recipients of mailed notices or papers longer time to act or to exercise their rights. It seems clear, however, that the code provisions are limited to civil proceedings where either a civil action is pending or where notice is required for the decision or order of an administrative agency or where court related civil proceedings are involved. The extension provisions are not applicable to any other notice provisions even though the notice is a prerequisite to a civil proceeding.

Turning our attention specifically to unlawful detainer actions we point out that the Legislature, in its wisdom, has made this summary remedy available to landlords to remove tenants. The procedure substantially limits the time in which a defendant-tenant may plead to an unlawful detainer complaint (§§ 1167, 1167.3, 1167.4). The right to a continuance under section 1054 is limited to 30 days without the consent of the adverse party and trial of the action takes precedence over all other civil actions (§ 1179a). There is one statutory exception to the extension provisions of section 1013, subdivision (a) when the notice or other documents are served by mail that expressly refers "directly to" unlawful detainer actions. That exception is in section 594, providing for notice of trial by mail and expressly states that the " . . . time provisions of section 1013 shall not serve to extend the notice of trial requirements . . . for unlawful detainer...