Palm Property Investments, LLC v. Yadegar
123 Cal. Rptr. 3d 816
Cal. Ct. App.2011Background
- Yadegars leased a penthouse at 408 North Palm Drive, Beverly Hills since 2002 under a Trust-owned lease with multiple addenda extending through 2010 and altering rent terms.
- Prior litigation (Enpalm v. Yadegar) challenged the Lease’s validity; a bench trial upheld a third addendum and foreclosed rent disputes against Enpalm; fees were awarded on appeal.
- During the pendency of related actions, the Yadegars ceased paying rent in March 2009 to offset judgments, after which Wilmington Park acquired the Property by foreclosure.
- Palm Property Investments purchased the Property in October 2009 and served a three-day notice to pay rent or quit on the Yadegars on November 4, 2009 by a registered process server; the Yadegars replied the next day disputing amounts due.
- Palm Property filed an unlawful detainer action on November 12, 2009 attaching the Lease and the three-day notice and its proof of service; the Yadegars answered with several defenses.
- The trial court excluded the process server’s proof of service as hearsay under Liebovich, ruling Palm failed to prove proper service, resulting in a judgment for the Yadegars in March 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proof of service of the three-day notice was admissible | Palm contends Liebovich does not control where a registered server served the notice. | Yadegars argue the proof of service is hearsay and inadmissible without a live witness. | Yes; the proof should be admitted, with presumption under Evidence Code 647 applying. |
| Whether the presumption under Evidence Code 647 applies to registered process server service | Palm asserts a presumption attaches to the server’s return establishing proper service. | Yadegars contend the presumption is not available or overcome by their denial. | Yes; presumption applies, shifting burden to Yadegars to rebut with evidence. |
| Whether service complied with former § 1162, subdivision 3, requiring posting and mailing when personal service is not possible | Palm contends the notice was properly served under alternate service methods. | Yadegars argue the notices were not properly served, given the dispute over amounts and dates. | Yes; under the presumption, the notice was properly served in compliance with § 1162(3). |
Key Cases Cited
- Liebovich v. Shahrokhkhany, 56 Cal.App.4th 511 (Cal. Ct. App. 1997) (affidavits of service alone insufficient to prove service; live testimony may be required)
- Lacrabere v. Wise, 141 Cal. 554 (Cal. 1904) (method of proof for service has limits when service is an element of the claim)
- Nourafchan v. Miner, 169 Cal.App.3d 746 (Cal. Ct. App. 1985) (1162 does not require reasonable diligence before posting and mailing)
- Minelian v. Manzella, 215 Cal.App.3d 457 (Cal. Ct. App. 1989) (limits on posting and mailing service before valid service)
- Kwok v. Bergren, 130 Cal.App.3d 596 (Cal. Ct. App. 1982) (three-day notice must be strictly compliant with statutory requirements)
- Lamey v. Masciotra, 273 Cal.App.2d 709 (Cal. Ct. App. 1969) (statutory notice requirements govern validity of service)
- Birkenfeld v. City of Berkeley, 17 Cal.3d 129 (Cal. 1976) (unlawful detainer procedures are governed by statute and require proper service)
- University of Southern California v. Weiss, 208 Cal.App.2d 759 (Cal. Ct. App. 1962) (admission of receipt in mailing contexts considered differently from personal service)