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socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 38438
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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The landlords attorney replied just in time simply stating

Customer Question

The landlords attorney replied just in time simply stating that yes they did mail the 3 day notice in addition to sticking it on the door. That was it, they sent nothing to prove it. What short.of certified return receipt constitutes proof of mailing it? We never got in.in the mail and on their own document they checked the box saying put on the door and keft unchecked the.box sent by mail. But now in reply to interrogatories they say they sent it by mail. We need to.know what.burden of ptoof they are up against to decide if we should settle at the conference on Thursday or.go.forward with tbis line if challenging the eviction
Submitted: 7 months ago.
Category: Real Estate Law
Expert:  socrateaser replied 7 months ago.

Hello again,

California case law shows that the landlord does not need to prove that the notice was received by the tenant. Only proof of mailing is required. Bank of America Nat'l Trust& Sav. Ass'n v. Button (1937) 23 Cal.App.2d 651, 652; Lamey v. Masciotra (1969) 273 Cal.App.2d709, 713-714.

The landlord can testify that notice was mailed, and the tenant can testify that notice was not received. At which point, it's the judge or jury (the "trier-of-fact") who must decide who is testifying truthfully.

Another defense may be that no initial attempt was made to personally serve the tenant at the unit before the "nail and mail" procedure was effected. Hozz v. Lewis(1989) 215 Cal.App.3d 314, 317. At least one prior attempt is generally required.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

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Customer: replied 7 months ago.
Do I need to a new question over with you? I'm glad to pay you again within this one, I just have a few more questions. Our attorney we got for this case is a real piece of work, he doesn't seem to have any clue here. At this point it's a he said/she said thing on the notice, and I have already spent way too much money in attorneys fees on this damm case. I cant possibly pay this guy to go forward any further. I'm fine with settling, I wanted to pay and stay as I've had the rent all along and the court has it all in escrow now, but I'm also fine with settling and moving out at the end of august. I just cant get the other side to deal with me, and the attorney I hired is too inept to settle this thing and I dont want another charge from him for going to this conference on thursday. He says if I send a Notice of Intent To Vacate, arranging for the moneys to be transferrd from the court to them, and agree to pay all of their attorneys fees, the case will be settled. First of all, I dont think I should be volunteering to pay for their attorneys fees. I may very well end up having to, but isnt that something up to the discretion of the judge? And I didnt want to get an eviction judgement on my record, which I guess is probably impossible at this point, but dont I have much better chances on both fronts at the settlement conference with a judge there? I dont feel good about having these attorneys construct the settlement and just jack up as many fees on both side for me to pay. Can I just show up to the conference on Thursday on my own? Do I have to officially fire my attorney on record to do so? I want to settle this case as quickly and cheaply as I can, with my best chances of least attorney fees and official judgement on my record. But I dont know my best next step to take?
Expert:  socrateaser replied 7 months ago.

Sorry for the delay, but I've been in court practically all day today.

Yes, I would appreciate your opening a new Q&A session, because the amount I receive from a subscription question is a little more than the cost of a Starbuck's grande drink and a chocolote chip cookie.

I note that you did post your last question again, and that it was answered by a lawyer not licensed in California. If you're satisfied with that answer, then there's no reason to open a new Q&A session for me. If you want me to answer, as a California lawyer with landlord-tenant law experience, then please open a new Q&A session, and put my userid ("ToCustomer only") in the title or first sentence of your new question.

Thanks again for using Justanswer!