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self-study / Real Estate

Elements of unlawful detainers

Pasadena Courthouse

William D. Dodson

Commissioner, Los Angeles County Superior Court

Unlawful detainer (UD) is a statutory cause of action that allows a person wrongfully deprived of the possession of his or her California real property by a tenant to regain possession of it, together with certain unpaid rents and "damages in lieu of rent" to the date of trial, if appropriate.

The objective of this article and self-study test is to familiarize bench officers and litigants with the most important features of UD law, to consider problem areas in this field, and examine practical solutions. Readers will learn about the basic structure of UD's, including the elements of a UD action, and special rules for service of notices.

Basic Structure

UD's are streamlined proceedings concerned with determining who is entitled to possession of real property. Other landlord-tenant issues, such as the refund of security deposits, non-rent debts, and title to property are not usually issues in an unlawful detainer proceeding. See Larson v. City and County of San Francisco, 192 Cal. App. 4th 1263 (2011); Gray v. Whitmore, 17 Cal. App. 3d 1 (1971). An exception regarding the relevance of title may occur in cases in which the right to possession cannot be determined without some reference to ownership rights. Post-foreclosure cases may present another exception. See Vella v. Hudgins, 20 Cal. 3d 251 (1977). Cross-complaints are not allowed. Glendale Fed. Bank v. Hadden, 73 Cal. App. 4th 1150 (1999).

The UD cause of action is available to landlords when the tenant has at least some permission to be on the premises. See CCP 1161. If the tenant gained possession without any permission, the landlord's action should be in "forcible entry and detainer." CCP 1159, 1160. Either type of action is a summary proceeding, designed to return possession to the person truly entitled to it. Tenants can use the same legal means to evict subtenants wrongfully in possession. See, e.g., CCP 1161(3). The plaintiff in a UD is a lessor or someone who stands in the place of a lessor, such as a subsequent purchaser of the property.

Both the pre-trial and trial time periods are extremely brief in UD cases. CCP 1170.5(a) provides that the court is to set trial within 20 days of the request to set. This short time sequence means the trial court clerk often does not receive a defendant's counter trial-setting request until it is too late to act upon it. Continuances should not exceed 10 days without the consent of both parties, unless good cause is shown. CCP 1167.5.

UD trials may be as short as 10 minutes, and the bulk probably do not exceed 30 minutes or an hour. Some take two to three hours, but the multi-day trial is rare in UD. Most parties seek a court trial, although there is a right to trial by jury unless waived by the parties. CCP 1171.

In lay terms, a "lease" is a written agreement for an extended period, usually a year or more; but a written "rental agreement" connotes a month-to-month tenancy. The law sometimes uses the terms interchangeably. See, e.g., CC 1953(a).

"Tenant" usually connotes a person who has paid consideration of some kind, rent or otherwise, for the tenancy. Although there are tenancies at will and at sufferance, some occupants are not tenants at all. This may be the situation in family disputes. It is fairly common for relatives to try to use UD law against one another after the death of a patriarch or matriarch. Sometimes relief must be denied until the probate court has authorized someone to act on behalf of the estate. Similar problems sometimes arise after

equal partners purchase property, and one comes into exclusive possession. This may or may not be a "tenancy" for UD law purposes, or for "rent control" ordinances. These are factual issues the court must decide.

The UD action is proper in both residential and commercial tenancies. The main practical distinction in this regard for trial judges is that the "notice to pay or quit," must state exactly the rent due in a residential case, but may be a good-faith estimate in commercial cases. CCP 1161.1(a). This is often the case in situations where there are variables such as common area maintenance fees ("CAM charges") or rents tied to sales or the consumer price index (CPI), making the exact rent due difficult to calculate.

What Is a UD?

The act of committing an unlawful detainer is defined in CCP Section1161. It includes:

1. The tenant staying after the agreed end of the lease. This includes the situation in which a resident manager or maintenance person receives a rental unit as compensation for the employment. Such cases do not require a "notice to quit" unless they have become month-to-month tenancies under the terms of the lease, by an agreement implied in fact, or by operation of law. Even in cases in which an annual lease expires, a holdover often creates a new or different type of tenancy. Written agreements sometimes dictate the legal effect of a holdover.

2. A month-to-month tenant failing to leave or pay, within three days after service of proper notice to pay rent or quit. The statute requires many items to be listed in the notice, including the name, address and telephone number of the person to be paid, the hours for payment, or mailing instructions, or other alternative methods of payment. The courts enforce these requirements strictly, and any defect may invalidate the notice. Bevill v. Zoura, 27 Cal. App. 4th 694 (1994).

3. A tenant staying more than three days after failing or refusing to comply with proper notice to perform or quit as required by a contract covenant other than the covenant to pay rent.

4. A tenant staying more than three days after a property notice to quit based on nuisance, waste, or use of the premises for an illegal purpose, especially selling controlled substances, a per se nuisance (see CCP 1161(4)). Nuisance generally applies to acts or conditions that seriously interfere with the rights of the landlord or other tenants. CC 3479.

Special Rules for Service of Three-Day Notice

1. Under CCP 1162 there are special methods of service for a three-day notice:

(a) hand delivery to "the tenant"; or (b) leaving a copy with someone "of suitable age" at the rented premises, and mailing another copy to the tenant; or (c) if the tenant does not answer the door, delivery by "affixing" a copy of the notice in a "conspicuous" place at the rented premises and mailing another copy to the tenant ("nail and mail"). Note: If the lessor knows the tenant's business address, an attempt to serve the three-day notice must be made there also, if the tenant is not at the residence. See CCP 1162(a)(2). Even experienced UD practitioners often miss this issue.

2. The three-day notice may give more than three days for the tenant to act. The extra time does not vitiate the notice. CC 3536-3537. Ten-day notices or 14-day notices may be required under Federal or local laws and regulations for certain low-income housing. They otherwise are as effective as three-day notices under California law. Even a 30-day notice for non-payment of rent is effective if it otherwise fulfills the requirements of CCP 1161. (Sometimes landlords provide longer notice because they do not want to appear harsh or unreasonable. Some lawyers think a 30-day notice is required when the statute says three days. Sometimes litigants and attorneys just do not understand the law.)

3. The three-day period begins at the time of mailing or posting, whichever is the last act. Days are counted by excluding the first and including the last. CCP 12. The time is extended by operation of law only if the last day is a Saturday, Sunday or other holiday. CCP Section 12 et seq. Note that the Civil Code defines holidays differently than the CCP. Under CC 7, Saturdays are not holidays, such that a contractual obligation to do an act on a Saturday is usually enforceable. CCP 12 et seq. controls three-day notices, but the Civil Code controls for the time for performance of duties under the lease other than the payment of rent. Saturday is a holiday for purpose of three-day notices.

4. As mentioned above, CCP 1161(2) allows the landlord to specify the hours for payment by personal delivery. Most notices state reasonable business hours, but some will give unreasonably short hours for compliance, e.g., 1:30 to 3:00 p.m. In such a case, some judges deem the time for compliance extended.

5. Some professional process servers post the three-day notice late at night so that the three days start running within a few minutes, i.e. at midnight. In such a situation, the "first day" that is "excluded" under CCP 12 is shortened in the extreme. This seems contrary to the intent of the statute, and a court may want to deem the service to be effective the following day, especially if the court suspects the process server did not knock loudly. Nevertheless, no specific case law has been found to add a day when service occurs just before midnight.

6. Plaintiffs often argue that registered process servers should always be believed because they are disinterested third parties who have no reason to lie. This is often not a logical argument. Registered process servers depend on the repeat business of those who hire them, and they have a serious economic interest in "proving" valid service. Some tenants, landlords, and process servers regularly misrepresent facts under oath in UD cases. Sometimes the facts are minor, sometimes not. The judge's greatest challenge in many UD cases is to determine who is telling the truth about the service of the three-day notice.

7. Evidence Code Section 647 creates a presumption affecting the burden of proof of the truthfulness of a registered process server's proof of service. See Palm Prop. Invs. LLC v. Yadegar, 194 Cal. App. 4th 1419, 1427 (2011). Therefore, the process server may not appear at trial and the plaintiff may prove a prima facie case by simply submitting the proof of service. The defendant may then testify to rebut the presumption. Note, however, that an affidavit or declaration under penalty of perjury from someone other than a registered process server is insufficient to prove a prima facie case, even if the defendant fails to object to the declaration as hearsay. See Liebovich v. Shahrokhkhany, 56 Cal. App. 4th 511 (1997), and cases cited therein.

8. Case law holds that the court will ignore technical defects in the service of the three-day notice in residential cases if the attempted service resulted in actual notice to the defendant in time to respond to it. Valov v. Tank, 168 Cal. App. 3d 867 (1985). This rule would apply when the defendant sees the posted notice, but never received the mailed notice. Sometimes plaintiffs fail to recognize that they could prove that service was completed by calling the defendant as an adverse witness (EC 776) and asking when he or she first saw the three-day notice.

9. Although there are special rules for service of the three-day notice in a UD case, the normal rules apply to service of a summons and complaint, and the tenant waives defects in the service of summons and complaint by filing an answer or making a general appearance under CCP 410.50(a). (Often, pro per litigants, and even some lawyers, want to put on evidence about the service of the complaint at trial, but this is irrelevant at trial, because the defendant has answered.)

10. The three-day notice must be stated in the alternative, except in cases in which the breach cannot be cured or the law does not require that the tenant be given a chance to cure. See Delta Imports Inc. v. Municipal Court, 146 Cal. App. 3d 1033 (1983). "Alternative" means that the notice must request the tenant to "pay or quit," or "perform or quit."


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