UNLAWFUL DETAINER CHECKLIST
By: Honorable John J. Hunter
VenturaCounty Superior Court
Updated 2007 by Hon. Lowell E. Richards
ContraCostaCounty Superior Court
A. / Jurisdiction
B. / Notice to Tenant
C. / Prejudgment Claim of Right to Possession
D. / Answer
E. / Trial
F. / Defenses
G. / Defense of Habitability
H. / Retaliatory Eviction
I. / Surrender
J.. / Judgment
K. / Security Deposits
L. / Attorney Fees
M. / Entry of Judgment
N. / Stay on Writ of Execution
O. / Service of Writ
P. / Rent Control
Q. / Foreclosure
R. / Effect of Bankruptcy
S. / Summary Procedure Chart
A. JURISDICTION
l. Real property in the county where action filed. CCP § 86(4), CCP § 392
2. Venue: Real property within court boundaries. If not, it shall be transferred to proper court, unless tenantrepresented by attorney consents to filing court. CCP § 396a
3. Premises sufficiently described to allow execution. CCP § 455
4. Money jurisdiction: Any residential or commercial lease where prayer does not exceed $25,000 is a limited-jurisdiction case. CCP §85(a), 86(a)(4)
5. Small Claims has no unlawful detainer jurisdiction. AB 1551 CH. 8 (2/19/92).
6. Open-ended prayer.
a.Remit excess. CCP §§396
b. No transfer where only potential excess rather than apparent excess. Babcock v. Antis (1979) 94 Cal. App.3d 823
c.Amend at trial to conform with proof. CCP § 1173
7. Complaint must be verified. CCP§§446, 1166
8. Proper plaintiff.
a.Property owner or party entitled to possession. CCP § 1166
b.Agent may not sue in own name. CC §§2322, Modlin v. Walter's Fur Shop (1948) 83 Cal.App.2d 384
c.Agent of owner with written authority to bring suit in own name. CC §§2304, 2322
d.If no authority, the owner may ratify agent's acts. CC §§2310
9.Must be a landlord/tenant relationship. A buyer and seller in escrow generally has no landlord/tenant relationship. Marvell v. Marina Pizzeria (1984) 155 Cal. App.3d Supp. 1
10.The only responsive pleadings allowed are answer, demurrer, or motion to quash service of the summons. CCP § 418.10, 1170
11.Landlord is held to strict compliance with statutory requirements. Berry v. Society of Saint Pius X (1999) 69 Cal.App.4354
B. NOTICE TO TENANT
1.SERVICE OF A VALID NOTICE IS JURISDICTIONAL. A court may not issue judgment for possession in the landlord’s favor without evidence that the required notice was properly served. Liebovich v. Shahrokhany (1997) 56 Cal.App.4 511
a. The tenant of a dwelling may not waive the notice provisions of CCP §1161(2).Gersten Cos. v Deloney (1989) 212 CA3d 1119
2.The 3-day notice must contain the telephone number and address of the person to whom rent payment must be made, plus the days and hours the person will be available to receive payment. CCP § 1161(2)
a. Where payment is to be by mail, the mailing address must be provided; payment is effective on the date of mailing, as proven by the tebant.
b. Landlord may provide the account number and name and address of a financial institution (within 5 miles of the property) into which payment is to be made.
c. If an electronic funds transfer procedure has previously been established, payment may be made according to that procedure.
3.Contents of notice must be accurate as to rent due.
a. If rent overstated, notice ineffective. Nourafchan v. Miner (1985) 169 Cal.App.3d 746. (Rent $1,078 and a $5.96 error.) But see Gruzen v. Henry (1978) 84 Cal.App.3d 515, where a slight error was okay.
b. Rent in notice may not exceed one year from due date. Bevill v Zoura (1994) 27 Cal.App.4th 694.
(1) A commercial tenancy is not automatically invalidated because it demands rent due more than one year before the notice.Levitz Furniture Co. v Wingtip Communications, Inc. (2001) 86 CA4th 1035
c. Commercial property notice may contain a "reasonable estimate" of rent due. CCP § 1161.1
1. Presumption of reasonableness if less than 20% higher than rent, burden shifts to tenant. CinnamonSquareShopping Center v Meadowlark Enters. (1994) 24 CA4th 1837
2. A notice that overstates the rent by more than 20 percent is defective and will not support an unlawful detainer judgment in a commercial tenancy. WDT-Winchester v Nilsson (1994) 27 CA4th 516
d. Tenant does not have to tender reasonable estimate rent if notice defective. WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516.
e. Interest may be included. CC §§3287(a), 3302, (1978) 78 Cal.App.3d 477
f. Property taxes and maintenance. fees are not "rent". Cal-American Income Prop Fund v Ho (1984) 161 Cal.App.3d 583. However, a 3-day notice is not limited to rent per se--it may include "any sums due under the lease." Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697. (CAM charges OK in notice.)
g.Late charges.
(1) If a percent of the balance due, it is void. Garrett v Coast & Southern Fed Savings (1973) 9 Cal.3d 731
(2) If residential, a liquidated damage clause is void, except the parties may Agree upon an amount which shall be presumed to be the amount of damages where it would be impractical or extremely difficult to fix actual damages. CC §§1671
(3) If nonresidential, liquidated damage clause is valid unless proved unreasonable as of lease start time. CC §§1671
(4) Late charges are liquidated damages and void, if the sum extracted from the borrower (or lessee) is designed to exceed substantially the damages suffered by the leader (or lessor) and is really an attempt to have the primary purpose to compel prompt payment. Garrett v. Coast & Southern Fed. Savings & Loan (1973) 9 Cal.3d 731.
(5) Where a late charge is based on a percent of the payment due and (1) that sum bears a reasonable relationship to the probable loss or actual damage, and (2) is reasonable in amount, and (3) the actual damages would be extremely difficult to assess, the late charge is valid. Fox v. Federated Dept. Stores (1979) 94 Cal. App.3d 867.
4.Service - must be served as provided by statute. Kwok v. Bergren(1982) 130 Ca1.App.3d 596
a. Personal. CCP § 1162(1)
b.Substitute service. CCP § 1162(2) Tenant absent from residence and usual place of business, leave copy of notice with anyone of suitable age and mail to residence. "Suitable age" depends on facts. No fixed age. Lehr v. Crosby(1981) 123 Cal.App. Supp. 7. [Age 16 ok.]
c.Nail and Mail. CCP § 1162(3)
(1) Cannot ascertain residence or place of business or a person of suitable age cannot be found.
(2)Post in conspicuous place and mail and deliver to anyone there residing. U.S.C. v. Weiss(1962) 208 Ca1.App.2d 759; Highland Plastics v. Enders (1980) 109 Ca1.App.3d Supp. 1. Possible problem if tenant does not get 3 days to cure. Davidson v. Quinn (1982) 138 Cal.App.3d Supp. 9; Walters v. Meyers,(1990) 226 Ca1.App. 3d Supp. 15 (Service effective upon posting and mailing).
d.Certified mail to landlord or agent of landlord if rent paid to agent. CC §§1946 (30/60-day notice only); CC §§1962.
e.CCP § 1162 does not require due diligence in attempting personal service before substituted service used. Nourafchen v. Miner (1985) 169 Ca1.App.3d 746. But must try personal service, then substitue service, then mail and mail. Hozz v. Lewis (1989) 215 Cal.App. 3d 314
5.Proof of service.
a. Details of service need not be pleaded but must be proved at trial if put into issue. Bank of America v. Button (1937) 23 Ca1.App.2d 651; Lamey v.Masciotra (1969) 273 Ca1.App.2d 709
b. Declaration of service - hearsay but:
(1) Sheriff return prima facie evidence of facts stated. CC 26662
(2) Marshal return prima facie evidence of facts stated. GC 71265
(3)Registered process server return establishes a presumption of the facts stated. EC 647
c. If tenants admit service, any service defect is waived. Valov v. Tank (1985) 168 Cal.App.3d 867
6.Government Housing. Notice of hearing required. 12 U.S.C. 1701, 42 U.S.C. 1401, Cf 58, 236, 221(d) (3)
7.Time expired after notice.
a. 3 days notice.
(1) If last day is a holiday, Saturday, Sunday, tenant gets one more court day. CC §§10, CCP § 12a, 13, 13a, 13b. Lamanna v. Vogner (1993) 17 Ca1.App.4th Supp. 4.
(2) CCP § 1013 (Add 5 days if service by mail.) not applicable to 30/60-day notice.Highland Plastics v.Enders(1980) 109 Ca1.App.3d Supp.1
(3) CCP § 1013 not applicable to a 3-day notice. Walters v. Meyers (1990) 226 Ca1.App.3d Supp 15, Losornio v Motta (1998) 67 CA4 110
b. 30-day/60-day notice to terminate month-to-month tenancy.
(1) After 1/1/07 60-day notice required for tenants who have lived at least one year in residential property. CC §1946.1, Re-enacted 2006)
(2) May be reduced to minimum of 7 days by written agreement.
(3) Cannot file until 30/60 days have expired.
8.No notice required.
a. Where tenancy specifically terminates on a specific date. CCP § 1161(1)
b. The lease breach cannot be remedied.
c. Waste requires a 3-day notice. Rowe v. Wells Fargo(1984) 166 Cal.App.3d 310, CCP § 1161.4
d. Where tenant occupies premises as part of employment, when employment terminates, tenancy terminates and no notice required. Lombard v_ Santa Monica(1985) 169 Ca1.App.3d 529
9.Commercial leases. Parties can contract their own notice requirements. Folberg v. Clara Fiinney Co. (1980) 104 Cal.App.3d 136
10.Service on subtenants.
a. When tenant and subtenant both on premises, a 30/60-day notice may be served on tenant only. Four Seas Inv. Corp, v. Int. Hotel Tenant Assn_ (1978) 81 Cal. App.3d 604
b. A 3-day notice must be served on both to give opportunity to remedy default. Briggs v. Electronic Memories & Magnetics Corp. (1975) 53 Ca1.App.3d 900
11.Service on co-tenants. Service of notice on one is service on all.
a. Service of 3-day notice. Gentrv v. Citron (1918) 36 Cal.App. 288
b.Service of 30/60-day notice. II.S.C. v. Weiss(1962) 208 Ca1.App.2d 759
12.If tenant performs within the 3 days, it nullifies any declaration of forfeiture. CCP § 1161.5
13.Waiver if rent accepted after breach. EDC Assoc. v. Guiterrez (1984) 153 Cal.App.3d 167 (For a no-waiver case, see The City of Hart [1.985] 175 Ca1.App.3d 92.) Acceptance of HUD subsidy after expiration of notice is not a waiver. Savett v. Davis(1995) 29 CA4th Supp. 13.
14.Acceptance of partial payment of rent in a commercial rental is evidence of that payment only and not a waiver. CCP § 1161.1(c)
15.Tender of rent after expiration of notice. If no forfeiture declaration in notice, tenant may pay and retain possession. Briggs v. Electronic Memories & Magnetics Corp. (1975) 53 Ca1.App.3d 900.
C. PREJUDGMENT CLAIM OF RIGHT TO POSSESSION
1.May be served on an occupant at the time summons and complaint served. CCP § 415.46
2.Must be served along with summons and complaint after determining names of occupants. Sex-vice on an identified occupant not present may be by
a. leaving copy with suitable person, and
b. posting in a conspicuous place, and
c. mail by first class mail to named occupant.
3. Service on an unidentified occupant or occupant subserved on tenant by
a. leaving copy attached to summons and complaint at premises, and
b. post in a conspicuous place, and
c. mail by first class mail to "all occupants in care of the named tenant." CCP § 415.46(c).
4.Application for default judgment shall specify all named claimants served. CCP § 1169.
5.Any occupant served may file claim with the court within 10 days, CCP § 1174.25
6.Any claimant shall be added to the complaint as a named defendant and has 5 days to answer. CCP § 1174.25(b)
D. ANSWER
1.Must be filed within 5 days from personal service, excluding holidays. CCP § 1167. CCP § 1167.3 5-day period is constitutional. Deal v. Municipal Court (1984) 157 Ca1.App.3d 991.
2.Must be filed within 5 days from denial of any motion or demurrer. CCP § 1167.3; Rule 325(e).
3.Motion to quash. Hearing set not less than 3 nor more than 7 days after filing notice. CCP § 1167.4 Proper where complaint does not state a cause of action. Delta Imports v. Municipal Court (1983) 146 Ca1.App.3d 1033
4.Request for extension to plead cannot be granted where it exceeds 10 days without consent of the other party, unless good cause is shown. CCP § 1167.5
5.General denial okay where "value of property" (leasehold value) does not exceed $1,000. CCP § 431.40
6.Summary judgment. Any time after answer filed - 5 days notice. CCP § 1170.7
7.Attachment. May attach in commercial leases for back rent plus rent to trial date. CCP § 483.020
8.If default; clerk may issue judgment for possession only. CCP § 1169
9.Interrogatories must be answered no later than 5 days before trial. CCP § 2030
E. TRIAL
1.Jury trial permitted. Must be set within 20 days of request. CCP § 1170.5, 1171 Notice of trial 10 days before trial date. CCP § 594.
2.Jury fees must be posted 5 days prior to trial date. CCP § 631
3.After evidence, the complaint must be amended to conform with proof.CCP § 1173
4.During trial, may grant JOP on court's motion where 3-day notice overstates rent due. Jayasinghe v. Lee (1993) 13 Ca1.App.4th Supp. 33.
5.Consolidation of actions. Where unlawful detainer case in Municipal Court and ejectment in Superior Court, upon motion in Superior Court, actions may be consolidated. CCP § 404
6.Continuance of trial may not be predicated on payment of back rent in residential lease cases. Medford v. Superior Court (1983) 140 Cal.App.3d 236
7.Continuance must be predicated upon payment of future rent to court for period of delay only, upon a finding of a reasonable probability that landlord will prevail. CCP § 1170.5(c).
F. DEFENSES
1.Need not allege in complaint all covenants performed. Fifth & Broadway Partnership v Kinney (1980) 102 Cal. App.3d 1985; DeLaVara v. Municipal Court (1980) 98 Cal. App.3d 638.
2.Proper. [see summary in Nork v. Pacific Med. Ent (1977) 73 Cal.App.3d 410]
a. Oral lease rather than month-to-month tenancy.
b.Lease was part of consideration for sale.
c.Tenant was purchaser of life estate.
d.Landlord and tenant were partners.
e.Landlord refused tender of rent.
f. Premises uninhabitable.
g.Tenant not in possession when complaint filed.
h.Retaliatory eviction.
i.Issue of title in residential case. (But may be tried only in Superior Court.) Asuncion v. Superior Court (1980) 108 Cal.App.3d 141
j.Rent control violation. Nourafchen v. Miner (1985) 169 Cal.App.3d 746
k.Violation of Subdivision Map Act, Gov. C. 66410 seQ.,Adler v. Elphick (1986) 184 Cal.App.3d 642 1. Over payment of rent. Minelian v. Manzella (1989) 215 Cal.App.3d 457.
3. Improper.
a.Fraudulent inducement to enter into lease when tenant not in possession when lease signed.
b.Antitrust violation.
c.Landlord has a defective title.
d.Landlord owes tenant an earlier unrelated debt.
G. DEFENSE OF HABITABILITY
1.Habitabilitymeans a condition which substantially affects health and safety or use and enjoyment. CCP § 1174.2
2.A defense in residential tenancies. Green v. Superior Court (1974) 10 Cal.3d 616, CCP § 1174.2
3.Warranty does not extend to commercial leases. Schulman v. Vera (1980) 108 Cal.App.3d 552
4.Warranty could extend to small commercial operations. Golden v. Conway (1976) 55 Cal.App.3d 948; Four Seas Inv. Corp. v. Int. Hotel Tenants Assn. (1978) 81 Cal. App.3d 604
5."Untenantable" dwelling if lacking: CC §1941.1
a.Effective waterproofing of roof and exterior walls including windows and doors.
b.Plumbing and gas not conforming to law when installed or in good working order.
c.Hot and cold running water with water drainage approved under law.
d.Heating not conforming to law when installed or in good working order.
e.Electrical lighting with wiring conforming to applicable law when installed and in good working order.
f.Buildings and grounds clean and sanitary and free from rubbish, garbage, rodents, vermin at lease time.
g.Adequate garbage receptacles and maintained.
h.Floors, stairways maintained in good order.
6.No duty of landlord to repair if tenant in substantial violation of any of the following which contributes to the existence of any untenantable condition: CC §1941.2
a.Keep occupied part of premises clean and sanitary.
b.Dispose of all garbage and rubbish.
c.Properly use all fixtures and keep clean and sani-tary
d.Not permit any person on premises with tenant's permission to destroy, deface or remove any part of fixtures, equipment or structure.
e.Occupy premises as intended -- i.e., bedrooms for sleeping, etc.
7.Landlord and tenant may agree in writing that landlord will perform 6a and 6b above.
8.Tenant may repair after: (CC §1942)
a.A written or oral notice to landlord of the breach.
b.Wait a reasonable time (30 days presumed reasonable).
c.Repair and deduct if repairs do not exceed one month's rent.
d.Or vacate (tenancy terminated as of date tenant vacates).
e.Tenant may repair and deduct only twice in any 12 month period.
f.Tenant may exercise any other remedy given by statute or common law. See Sec. of Housing & 'Urban Development v. Lay field (1979) 88 Cal.App.3d Supp. 28
9.Landlord and tenant may agree, as consideration for the lease, tenant shall make repairs and maintain structure. CC §1942.1
10.Other agreements are void. CC §1942.1
11.Waiver. If tenant knows of the condition when rents premises, no waiver. Knight v. Hallsthammer (1981) 29 Cal.3d 46
12. Where landlord has notice of defect, breach of warranty of habitability exists from time of notice, whether or not a reasonable time to repair. Knight v. Hallsthammer (1981) 29 Cal. 3d 46, 55.
13.Presumption of breach of habitability if CC §1941.1 standards lacking and 60 day notice given to landlord. CC §1942.3
14.Determination of damages.
a.Determine what percent of habitability is affected and reduce rent.
b.Determine rent for habitable premises versus rental for premises in present state. Compute the difference.
c.Deduct percent from actual rent, not rental value. Cazeres v. Ortiz (1980) 109 Cal.App.3d Supp. 23 d. Deduct from the rent only for those months for which rent is unpaid. Landeros v. Pankev (1995) 39 Cal. App. 4th 1167, 1174.
15.Judgment.. Minute order should read: Judgment for tenant for possession and costs upon payment of back rent of $______within 5 days. If not paid, judgment for Landlord for possession, rent of $______and costs. Tenant has 5 extra days to pay if judgment mailed. CCP § 1174.2
16.Costs. Where tenant prevails on habitability, costs and attorneys fees awarded to tenant because landlord has not won on possession. Strickland v. Becks (1979) 95 Cal.App.3d Supp. 18, CC §1717, CCP § 1174.2
17.If an affirmative suit for recovery of rent, landlord may be liable for special damages up to $1,000, plus an order for reduced rent and abatement. CC §1942.4
H. RETALIATORY EVICTION
1.A statutory and common law defense. Barela v. Superior Court (1981) 30 Cal.3d 244; Glaser v. Meyers (1982) 137 Cal.App.3d 770 Jury trial permitted. Dept.of Transportation v. Ker-rigan (1984) 153 Cal.App.3d Supp. 44
2.Elements of the defense.CC §1942.5 (a)
a.Landlord retaliates against tenant because tenant exercised repair rights.
b.Tenant not in default re rent.
c.Landlord prohibited for 180 days from:
(1) Increasing rent.
(2) Decreasing services.
(3) Causing tenant to involuntarily quit.
3.180 day rule is the latest of the following dates:
a.From date tenant gives oral or written notice to landlord.
b.From date tenant gives oral or written complaint to agency who gives notice to landlord.
c.From date of inspection where landlord has no notice.
d.From date of any arbitration award.
4.Defense available only once in a 12-month period.
5.Rights of tenant protected.
a.Habitability and repair rights.
b.Tenant association rights. Newby v. Alto RivieraApts.(1976) 60 Cal.App.3d 288
c.Exercise of ALRB rights. Vargas v. Municipal Court (1978) 22 Cal.3d 902
d.The lawful and peaceful exercise of any rights. Barela. supra
e.Racial discrimination or child discrimination. Marina Points v. Wolfson (1982) 30 Cal.3d 721, Abstract Invest- Co. v Hutchinson(1962) 204 Cal. App.2d 242 Adults only mobile home park okay. (1987) 193 Cal.App.3d 1388. 40 year old restriction okay. Huntington Landmark Adult Community Assn, v. Ross (1989) 213 Cal.App.3d 1012
6.Waiver. Any waiver is void.
7.Landlord may recover possession, etc., by giving notice which includes the "good faith" grounds for termination, etc. Burden of proof on landlord.