Tenant Didn't Pay First Month's Rent Is contract binding?

[Tony Pham]

I live in san jose california and just recently signed a month to month contract with a tenant. He hasn't paid us and it has been over a week (we should've gotten payment first, we definitely learned our lesson). My question is, is the contract binding and thus we have to serve him a 30 day notice to kick him out? Or because he hasn't paid us first month's rent and security deposit then the contract is not binding? 

[Theresa Harris]

If he didn't pay first month's rent or the security deposit, the contract isn't executed.  For future reference, until you have the deposit and the cheque has cleared, do not hand over the keys.  You will also want to make sure the utilities that they are responsible for (eg electricity) have been transferred to their name prior to them moving in.