Unlawful Detainer: Personal Service of Notice to Quit Must Be Attempted; Post Foreclosure Plaintiff Must Prove Duly Perfected Title

  In an unusual move, the California Supreme Court ordered publication of an opinion issued by the Santa Clara County Superior Court, Appellate Division, in an limited jurisdiction unlawful detainer case: Bank of New York Mellon v. Preciado. The decision specified two errors in the unlawful detainer proceedings: 1) the proofs of service of the 3-day notice failed to show that personal service was attempted; 2) the post foreclosure plaintiff failed to prove its title was duly perfected. Each defect required reversal of the judgment and a new and different judgment in favor of defendants.

1) Service of Notices to Quit

  As a prerequisite to filing an unlawful detainer action, a tenant must be served with either a 3, 30, or 90 days’ notice. Where service is carried out by a registered process server, Evidence Code section 647 applies to eliminate the necessity of calling the process server as a witness at trial.  Under section 647 the return of a process server establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.

  If plaintiff does not call the process server as a witness, the question is whether the proofs of service establish compliance with the notice requirements of Code of Civil Procedure section 1162. Section 1162 provides three methods of serving these notices: (1) by personal delivery to the tenant (personal service); or (2) if the tenant is absent from his residence and usual place of business, by leaving a copy with a person of suitable age and discretion at either place, and sending a copy through the mail to the tenant’s residence (substituted service); or (3) if a place of residence and usual place of business cannot be ascertained or a person of suitable age or discretion cannot be found there, then by affixing a copy in a conspicuous place on the property and delivering a copy to a person residing there, if such a person can be found, and also sending a copy through the mail addressed to the tenant at the place where the property is situated (post and mail service).  A notice is valid and enforceable only if the lessor has strictly complied with these statutorily mandated requirements for service.

  In this case, the proofs of service alleged service by post and mail. However, they failed to recite any evidence that personal service had been first attempted. Post and mail service is not authorized in the first instance. Proper service of termination notices are an essential element of plaintiff’s case in unlawful detainer actions. A general denial of each statement in the complaint sufficiently put the service of the notices at issue – defendants are not required to plead ineffective notice as an affirmative defense.

2) Duly Perfected Title: Compliance with Civil Code section 2924 et seq.

  In an unlawful detainer action brought pursuant to Code of Civil Procedure section 1161a, subdivision (b)(3), the plaintiff must show that he acquired the property at a regularly conducted sale and thereafter “duly perfected” his title. Where the plaintiff in the unlawful detainer action is the purchaser at a trustee’s sale, sale in compliance with Civil Code section 2924 and the deed of trust, followed by purchase at such sale, is the only proof of title required.

  In many cases, the Trustee’s Deed Upon Sale, duly recorded, will be sufficient proof that the plaintiff acquired the property at a regularly conducted sale and thereafter “duly perfected” its title. Title is duly perfected when all steps have been taken to make it perfect, i.e., to convey to the purchaser that which he has purchased, valid and good. Under a deed of trust, power of sale upon the trustor’s default vests in the trustee. Therefore, in order to prove compliance with section 2924, the plaintiff must necessarily prove the sale was conducted by the trustee.

  Plaintiff’s proof fell short. The Trustee’s Deed Upon Sale indicated the property was sold by Recontrust Company, acting as trustee.  However, the Deed of Trust identified Commonwealth Land Title Company as the trustee. Plaintiff failed to provide any evidence establishing Recontrust’s authority to conduct the trustee’s sale. Since plaintiff failed to provide evidence that Recontrust was substituted for the original trustee, plaintiff was not entitled to judgment.


   Mr. Daymude consults with clients and accepts cases involving unlawful detainer proceedings, including those where defective notice, service, or title is alleged. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.

Jump to top