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I am very sorry to learn of this situation and the way both the landlord and their counsel have conducted themselves in this matter.
Serving a 3 day notice is not complex (compared with some other service requirements), to be effective, the landlord must either deliver the 3 day notice to you; deliver it to an adult that is present in the unit; or "nail it" (post it on the doorway) and mail it by US Mail.
If the landlord has failed to do this, the notice is invalid, and assuming you prevail in court on this matter alone, the landlord will have to start the process over with a new 3 day notice and serve that notice properly.
ok. I know that they do stick them in the gaps in the door, but we live in a very windy area of the state and IF they did that, there is a 90% chance that it blew away within 10 minutes. They never mailed me a copy
The best resource for landlords and tenants in unlawful detainer matters is the California Department of Consumer Affairs website, this link here has information both on the service of 3 day notices, above, and links to case law/statutes.
that was the issue I mentioned in my demeeure, but the attorneys for the landlord moved up the date without telling me and then the judge ruled against me because I did not show up. Can the attorney for the landlord have what amounts to a secret court date without telling me?
The purpose of giving notice is to ensure that the tenant receives the notice, (the code uses the word "conspicuous" which is not of much use other than to make the document obvious). However, this type of "nail and mail" service is not effective until the notice is also sent by US Mail, so while it may have been too late for you to act on it, if you have never received it by US Mail, the notice was never properly served.
ok, so my question is; who has the responsibility to prove that it was mailed or not?
I will say that I never got it and the lawyers will say the oppostie
The opposing counsel should have given you notice of any date change or any other communications with the Court. The Court does not allow "ex parte" communications, (this is not to be confused with a type of motion called "ex parte motion") where only one side communicates with the Court.
They have the responsibility to prove that the document was properly served.
hold on for one second while I get the paperwork of the hearing (I do remember seeing ex parte something)
it says ex parte hearing to advance demurrer date. The court paper I got was AFTER the whole thing was over
They are required to notify you no later than 10:00 a.m. the day before the hearing, tell you what the hearing is going to be about, and ask if you plan on appearing or opposing the ex parte.
After the hearing (assuming they do appear properly), they are required to serve you with a copy of the court order regarding the hearing - (did the court advance the hearing, e.g.)
so they never did anything like that AT ALL!!! All I got was this court letter stating that my demurrer was overruled (because I was not there to argue my point that I never saw a three day)
From what you have described you were not given notice of an ex parte to advance the hearing, did not know of the new hearing date for your demurrer, and only afterwards learned of the demurrer being overruled?
tomorrow is my court hearing, what I would like to be able to say to the judge is "according to ??????? the landlord cannot pull this irresponsible behavior.
yes. I never knew about the new hearing date for the demurrer
I would like court cases that I can state (or laws-whatever) that I can say "This is wrong."
and the lawyers have to prove to the judge that they informed me of the advanced demurrer date?
You have a long list of things that are wrong - far more than I can cover in a "chat" session, but I can give you some pointers and general tips that can be helpful for you to focus on your hearing date (housing law cases move quickly it is important to stay on top of your time). Fortunately, the rules regarding ex parte notice are so clear and unambiguous that the Court will be able to accept them without any questions - I will pull a few of the code sections for these things, but like I noted, your current situation is outside the scope for a single "chat" function, and I believe that some hints on how to deal with counsel like this in the courtroom may be more helpful.
First - focus on the merits of your case - you say you paid your rent, but they credited the wrong account. Remember your defense, keep your evidence to prove your defense well organized so that you can show the court, with a copy to the other side.
Second - to deal with this failure of notice. The statutes (complete with some case law annotations (you can cite the cases listed directly out of the website)) regarding service of a 3 day notice in the Consumer Protection Handbook will give you exactly the information you need to argue whether or not the notice they attempted to give you was properly served (if they claim "nail and mail" - where is the mail, I believe there is a case directly on point saying "service is not effective until the date of mailing).
ok, what is that link again about "nail and mail?" I think that should be all I need.
Third - to deal with the demurrer. You can ask the court to rehear the issue of the demurrer as you were not given notice of the motion to advance the hearing, or of the new hearing date. Be clear and be direct - they may argue that you waived this argument through failing to argue the demurrer, etc. etc. - but really why would you miss your own hearing date (they will lose significant credibility).
Walters v. Meyers (1990) 226 Cal.App.3d Supp. 15, 19-20 [277 Cal.Rptr. 316, 318-319] (service of a three-day notice is effective from the date the notice is mailed, not from the date the tenant received it)
so that is the case law about proper service? Thanks, XXXXX XXXXX appreciate your help
and one more thing, is there any case law about proving that one mailed something?
You are very welcome. I wish you the best of luck with this matter, and I apologize for the terrible impression left by these attorneys regarding my profession.
I know they will say they mailed it.
Oh, I don't hate lawyers! I think some of them try a tad too hard for their clients
There is no case law on what constitutes proof of mailing for the 3 day notice. But what you are looking for is - do they have any proof of service. (It is not the same as what is used for civil procedure, but it would at least have someone specifically responsible for mailing that piece of mail to you - "XXXXX XXXXX mailed to Tenant Smith at Unit 9 ..."
ok. thanks so much. Have a nice night/morning (wherever you are).
Thank you, XXXXX XXXXX the same.
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