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An unlawful detainer dispute (also known as eviction) involves two parties: the tenant facing eviction and the landlord. Most often, failure to pay rent or failure to comply with the terms and conditions of a lease gives rise to the filing of an unlawful detainer action.

III. APPLICABLE LAW

A. General Background

When a landlord wants to end a tenancy involuntarily after the tenant has taken possession of the rental premises, the landlord must take certain legal steps to do so. Glass v Najafi (2000) 78 CA4th 45, 48-49, 92 CR2d 606. Until these steps are taken, the tenant has a right to peaceful possession of the rented premises and the right to exclude anyone, including the landlord. People v Thompson (1996) 43 CA4th 1265, 1270, 51 CR2d 334. Unless a tenant vacates voluntarily, a landlord must have a valid writ ofexecution or possession to reacquire possession of the premises. 43 CA4th at 1270.

An unlawful detainer proceeding under CCP §§ 1159-1179a is a summary method for recovery of possession of leased premises. It is a limited proceeding designed to permit a landlord to recover possession of real property from a tenant who is wrongfully in possession. Glendale Fed. Bank v Hadden(1999) 73 CA4th 1150, 1153, 87 CR2d 102. Although a landlord may utilize the civil causes of action of ejectment or quiet title, unlawful detainer is almost always preferred because the time span is greatly compressed, i.e., the defendant has only 5 days to respond to the complaint, and the case is entitled to a preferential trial setting.

Like civil actions generally, unlawful detainer actions are initiated by the filing of a complaint, issuance of a summons, and service of the complaint and summons on the defendant. However, there are notable differences between unlawful detainer and other civil proceedings, including:

• The defendant in an unlawful detainer action must appear and plead within 5 days after service of the summons and complaint (CCP § 1167), rather than the usual 30-day period (see CCP § 412.20(a)(3.)) See Deal v Municipal Court(1984) 157 CA3d 991, 997-998, 204 CR 79 (court may extend defendant's time to plead to such time as may be just.)
• The proceeding is a summary one and is given legal precedence over other civil actions. CCP § 1179a.
• There is no right to file a cross-complaint or counterclaim. See Vella v Hudgins(1977) 20 C3d 251, 255, 142 CR 414; Glendale Fed. Bank v Hadden, supra,73 CA4th at 1153 (summary character of proceeding would be defeated if, by cross-complaint or counterclaim, issues irrelevant to right of immediate possession could be introduced.)
• The only responsive pleadings that may be filed are an answer, a demurrer, or a motion to quash service of the summons. CCP §§ 418.10, 1170.
• A motion to quash (CCP § 1167.4) must be heard within 3 to 7 days and any summary judgment motion (CCP § 1170.7) within 5 days of notice.
• Unlawful detainer proceedings are exempt from judicial arbitration (Cal Rules of Ct 3.811(b)(4.))
• Any stay on appeal is discretionary with the court. CCP §1176.
• Economic litigation procedures do not apply to unlawful detainer actions. CCP § 91(b.)
• Unless ordered by the court for good cause, no extension of time may exceed 10 days (30 days for other civil actions under CCP § 1054) without the adverse party's consent. CCP § 1167.5.

Because of its summary character, an unlawful detainer action is not a suitable vehicle for trying complicated ownership issues involving allegations of fraud. Mehr v Superior Court (1983) 139 CA3d 1044, 1049, 189 CR 138. See Berry v Society of Saint Pius X (1999) 69 CA4th 354, 363, 81 CR2d 574 (title cannot generally be tried in unlawful detainer action); Martin-Bragg v Moore (2013) 219 CA4th 367, 393-395, 161 CR3d 471 (abuse of discretion to try complex issues of legal and beneficial title to property using summary unlawful detainer procedures); Ben-Shahar v Pickart (2014) 231 CA4th 1043, 1053-1054, 180 CR3d 464 (former tenant's action for landlord's alleged violation of rent control ordinance and breach of unlawful detainer settlement agreement not collaterally estopped by tenant's "misguided attempt to enforce the settlement agreement in the unlawful detainer proceedings"; trial court lacked authority to resolve dispute about alleged breach of unlawful detainer settlement agreement in summary unlawful detainer proceeding); and Asuncion v Superior Court (1980) 108 CA3d 141, 145-146, 166 CR 306 (eviction of homeowners following foreclosure raises due process issues and cannot be heard as part of summary unlawful detainer proceeding.)

Issues extrinsic to the right of possession are generally excluded even though they arise out of the parties' landlord-tenant relationship. E.S. Bills, Inc. v Tzucanow (1985) 38 C3d 824, 830, 215 CR 278; Saberi v Bakhtiari (1985) 169 CA3d 509, 515, 215 CR 359. However, an action for unlawful detainer may coexist with other causes of action in the same complaint, as long as the entire case is treated as a regular civil action and not as a summary proceeding. Lynch & Freytag v Cooper (1990) 218 CA3d 603, 608-609, 267 CR 189 (rejecting defendant's contention that unlawful detainer proceeding can be converted into regular civil action only when possession of the property is no longer in issue.)

By choosing the summary unlawful detainer proceeding, a landlord is held to strict compliance with the applicable statutory requirements for such a proceeding. Berry v Society of Saint Pius X, supra, 69 CA4th at 363.

B. Jurisdiction

An unlawful detainer case in which the amount of rent and damages claimed is $25,000 or less is a limited civil case. CCP §§ 85(a), 86(a)(4.) The case is an unlimited civil case when the amount of rent and damages claimed is more than $25,000. See CCP § 88. The landlord may agree to remit any amount claimed above $25,000, so that the action may continue as a limited civil case. CCP § 403.040(f.) A superior court is not, however, required to reclassify any action merely because the judgment to be rendered, as determined at trial, is a judgment that might have been rendered in a limited civil case. CCP § 403.040(e.) On motions for reclassification, see CCP §§ 403.010-403.090. See also Stern v Superior Court (2003) 105 CA4th 223, 227, 230-231, 129 CR2d 275 (considerations in determining whether reclassification is warranted.)

C. Venue

1. Venue Allegations

The proper venue for the action is the county in which the property is located. CCP § §392(a), 396a(a) (the proper court location for an unlawful detainer proceeding is the location where the court tries that type of action that is nearest or most accessible to where the property is located); Childs v Eltinge (1973) 29 CA3d 843, 851, 105 CR 864. The plaintiff must allege in the complaint (or in an affidavit filed with the complaint) that the action has been commenced in the proper superior court and the proper court location for the trial of the action; the court may dismiss the action without prejudice if the plaintiff fails to comply with this requirement, or may permit the affidavit to be filed after the filing of the complaint on such terms as may be just. CCP § 396a(a), (b) (in this event, defendant's time to answer or otherwise plead runs from date defendant is served with affidavit.) The location of the property should be evident from the complaint, which should describe the premises sufficiently to allow for execution of a writ of possession. See CCP § § 455, 1166, 1177.

2. Transfer of Action

The court must transfer an unlawful detainer action on its own motion (or on the defendant's motion) if it appears from the complaint or affidavit (or otherwise) that the superior court or court location where the action was commenced is not the proper court or court location for the trial. CCP §396a(b.) Once the need for transfer is apparent, a judge may take the initiative and order transfer to the proper court on an order to show cause or noticed motion and after giving the parties an opportunity to be heard. Transfer is not required if the defendant consents in writing, or in open court on the record, that the action may continue in the court in which it was commenced. CCP §396a(b.) The consent may only be given by a defendant who is represented by counsel when the consent is given. CCP §396a(b.)

D. Pleadings/Summons

1. Complaint

There are optional Judicial Council forms for both unlawful detainer complaints and answers. See CCP § 425.12; Judicial Council forms UD-100 (complaint), UD-105 (answer.) The complaint must set forth the facts on which the plaintiff seeks to recover and must describe the premises with reasonable certainty. CCP § 1166(a) (2), (3); Delta Imports, Inc. v Municipal Court(1983) 146 CA3d 1033, 1036, 194 CR 685. It must also set forth the amount of damages claimed, and if the case is based on the tenant's default in the payment of rent, the amount of that rent. CCP § 1166(a)(4), (b.) Finally, it must state the method used to serve the defendant with the notice of termination on which the complaint is based. CCP  1166(a) (5) (this requirement may be met by completing all items relating to service of notice on Judicial Council form complaint or by attaching proof of service of the notice.) The complaint must be verified. CCP §§ 446, 1166(a)(1.)

Parties must state in their pleadings and other forms whether a registered unlawful detainer assistant provided advice or helped them to complete forms. See Bus & PC §§ 6400 et seq; see, e.g., Judicial Council form UD-100.

Attachments. If the action concerns residential property, a copy of the notice of termination must be attached to the complaint, along with a copy of the lease or rental agreement, as well as any addenda or attachments to the lease or rental agreement that form the basis of the complaint. CCP § 1166(d)(1.) These documents need not be attached if the action is based on the tenant's default in the payment of rent. CCP §1166(d)(1)(B)(iii.) If the plaintiff fails to attach the required documents, the court must grant leave to amend the complaint for a 5-day period to include these attachments. CCP §1166(d)(2.)

Caption. Each party's initial pleading in a limited civil case must state in its caption that it is a limited civil case. CCP §422.30(b); Cal Rules of Ct 2.111(10.) On the complaint in a limited civil case, immediately below the character of the action, the amount demanded must be stated as either "Amount demanded exceeds $10,000" or "Amount demanded does not exceed $10,000" to help determine the filing fee. Govt C §70613(b); Cal Rules of Ct 2.111(9.)

In an action regarding residential real property based on CCP §1161a (eviction after sale of property), the plaintiff must state in the caption of the complaint "Action based on Code of Civil Procedure Section 1161a." CCP §1166(c.)

2. Summons and Defendant's Time To Respond

When the complaint is filed, a summons must be issued (see CCP §1166(e)) in the form specified by CCP §412.20, except that the defendant has 5, rather than 30, days to respond to the complaint after service of the summons. CCP §§1167, 1167.3. If substituted service is used, the defendant has 15 days after the other copies are mailed within which to respond. See CCP §415.20(a.) The summons must be served and returned in the same manner as a summons in a civil action. CCP §1167.

The 5-day response time includes Saturdays and Sundays, but excludes all other judicial holidays. CCP §1167. If the last day for filing a response is a Saturday or Sunday, the defendant has the next court day within which to file a response. CCP §1167.

The fact that a defendant in an unlawful detainer action has 5, not 30, days to file a response does not violate the due process or equal protection clauses of the federal or state constitutions. Deal v Municipal Court (1984) 157 CA3d 991, 994, 998, 204 CR 79. However, service of a 5-day summons on a complaint that fails to state a cause of action for unlawful detainer is defective, does not give the court jurisdiction over the defendant, and is subject to a motion to quash. See Greene v Municipal Court (1975) 51 CA3d 446, 451-452, 124 CR 139.

3. Service of Summons by Posting

The summons in an unlawful detainer action may be served by posting only after the court has been satisfied that the defendant cannot be served by any other method using reasonable diligence. CCP §415.45. When service is made by posting, two affidavits of service must be filed with the court: one from the person who posted the summons on the property, showing when and where it was posted; and another showing when and where copies of the summons and complaint were mailed to the defendant. CCP §417.10(e.)

4. Defendant's Responsive Pleading

The defendant may respond to the complaint by filing an answer, a demurrer, a motion to quash service of summons, or a motion to stay or dismiss on the ground of inconvenient forum. See CCP §§418.10, 1170; Cal Rules of Ct 3.1327(a.) The defendant may not file a cross-complaint or counterclaim. See Vella v Hudgins (1977) 20 C3d 251, 255, 142 CR 414. At the time of filing a response to the complaint, the defendant may file a motion for reclassification of the case if the defendant claims that the complaint misstates the jurisdictional classification. See CCP §403.040(a); Stern v Superior Court(2003) 105 CA4th 223, 227, 230-231, 129 CR2d 275 (considerations in determining whether reclassification is warranted.) A motion for reclassification does not extend the defendant's time to answer or respond. CCP §403.040(a.) At the time of filing a response to the complaint, the defendant may also file a motion for change of venue if the defendant claims that the action was not commenced in the proper court or proper court location. See CCP §396b(a.)

The defendant's demurrer is an appearance. CCP §1170. Once a defendant appears under CCP §1170, the plaintiff may request trial within 20 days. CCP §1170.5(a.)

If the defendant files a demurrer, which is overruled, or a motion to quash, which is denied, the defendant generally has 5 days after the court's ruling within which to file an answer to the complaint. See CCP §1167.3.

5. Amendment of Complaint

When tenant has vacated property. When possession of the property has been delivered to the landlord before trial (or, if there is no trial, before judgment is entered), the case becomes an ordinary civil action for the purposes of trial setting. CC §1952.3(a.) If the landlord seeks to recover damages that are not available in a summary unlawful detainer proceeding, the landlord must amend the complaint under CCP §472 (amendment of right) or CCP §473 (amendment with leave of court) to allege that possession of the property is no longer at issue and to state a claim for those damages. CC §1952.3(a)(1.) A copy of the amended complaint must be served on the defendant in the same manner as a copy of the summons and original complaint. CC §1952.3(a)(1.) The defendant has the same time to respond to the amended complaint as in an ordinary civil action. CC §1952.3(b.) The defendant may, by appropriate pleadings or amendments to pleadings, seek any affirmative relief and assert all defenses to which he or she is entitled, whether or not the plaintiff has amended the complaint. CC §1952.3(a)(2.)

Defendant's time to answer in other cases. If the complaint is amended for any other reason, the defendant generally has 5 days within which to file an answer to the amended complaint. See CCP §1167.3.

Amendment to allege different type of notice. A plaintiff in an unlawful detainer action based on a 30-day notice to quit may not amend the complaint, immediately before trial, to allege that the defendant is unlawfully detaining the premises following service of a prior 3-day notice to pay rent or quit. Such an amendment is not based on the same general set of facts set forth in the original complaint, and the defendant would be prejudiced by the amendment because different defenses are permitted. North 7th St. Assocs. v Constante (2001) 92 CA4th Supp 7, 10, 111 CR2d 815. Nor is such an amendment authorized by CCP §1173, which requires the judge to order an amendment of the complaint to conform to proof when it appears from the evidence introduced at trial that the defendant is guilty of an unlawful detainer other than that charged in the complaint. The statute does not apply to a motion to amend the complaint that is made before there is any evidence before the court. 92 CA4th Supp at 11-12.

E. Parties

1. Proper Plaintiff

Only the proper plaintiff, the landlord or successor in estate to the landlord (see CCP §1161(1)), may bring the action. See CCP §§369, 1165. An agent, such as the property manager, cannot sue in his or her own name (see CC §2322) even if the agent has been given a power of attorney (see Drake v Superior Court (1994) 21 CA4th 1826, 1831, 26 CR2d 829.)

However, under CCP §369(a)(3), a person with whom a contract is made for the benefit of another may sue without joining as a party the person for whose benefit the action is prosecuted. Therefore, a management company that has a written agreement with the owner to sign the lease, collect the rent, maintain the property, and sue for possession may probably sue without joining the owner.

Corporations may not appear in court through nonattorney agents (Merco Constr. Eng'rs, Inc. v Municipal Court (1978) 21 C3d 724, 730-731, 147 CR 631) or appear in pro per (Say & Say, Inc. v Ebershoff (1993) 20 CA4th 1759, 1767, 25 CR2d 703.) An unincorporated association must also be represented in court by a licensed attorney. See Albion River Watershed Protection Ass'n v Dep't of Forestry & Fire Protection (1993) 20 CA4th 34, 37, 24 CR2d 341. See also Bus & PC §6125, requiring active State Bar membership as a prerequisite to the practice of law in California.

There must be a landlord/tenant relationship between the plaintiff and the defendant. See Marvell v Marina Pizzeria (1984) 155 CA3d Supp 1, 5, 7-12, 202 CR 818. The purchaser of property is not a lessor or the successor in interest of the lessor when the seller has reserved lessor's rights as part of the sale. Commonwealth Mem., Inc. v Telophase Soc'y of Am. (1976) 63 CA3d 867, 871, 134 CR 58.

2. Proper Defendants

The only essential defendants in an unlawful detainer action are the tenants and subtenants in actual occupation. See CCP §1164. However, landlords often serve all occupants under CCP §415.46. A defendant appearing in a representative capacity at an unlawful detainer proceeding against a corporation does not appear in a personal capacity and is not bound by any settlement agreement. Canaan Taiwanese Christian Church v All World Mission Ministries (2012) 211 CA4th 1115, 1124-1126, 115 CR3d 415 (pastor who lived on church property and was barred from returning to premises under oral settlement agreement between church and its landlord was not personally bound by agreement because he was not a party to the case.)

3. Effect of Defendant's Bankruptcy Petition

A landlord is prohibited from prosecuting an unlawful detainer action against a tenant who has filed a bankruptcy petition. 11 USC §362(a.) The landlord may petition the bankruptcy court for relief from the automatic stay and, if relief is granted, the unlawful detainer action may proceed. 11 USC §362(d.) When the tenant files a bankruptcy petition after the landlord has obtained a judgment and writ of possession against the tenant, the sheriff is required by CCP §715.050 to enforce the writ. Lee v Baca (1999) 73 CA4th 1116, 1119-1122, 86 CR2d 913. The automatic stay provisions of 11 USC §362(a) do not prohibit a landlord from regaining possession of residential premises from a wrongfully holding-over bankruptcy debtor-tenant, if the landlord seeks only to repossess the property. The landlord may not seek to enforce any other portion of the unlawful detainer judgment, such as money damages, against the tenant and the tenant's bankruptcy estate.

Some practical effects of bankruptcy are as follows:

• On receipt of a notice of stay, if the court determines the bankruptcy was filed before service of the notice to quit or filing of the action, the court should dismiss the case and require service of a new notice after the landlord obtains leave from the bankruptcy court.
• If the tenant files for bankruptcy after the unlawful detainer complaint is filed but before judgment, the landlord must obtain relief from the stay to go forward regarding possession (without the award of a money judgment.) Common practice is for the court to continue the case for 30 days so the landlord may obtain relief from the stay.
• Subject to 11 USC §362(l) (tenant's right to cure monetary default), if a judgment of possession is obtained before the tenant files for bankruptcy, there is no automatic stay (see 11 USC §362(b)(22)) and the eviction may proceed.
• The automatic stay is limited if the landlord files a certification that the tenant is endangering the property or is illegally using controlled substances on the property. See 11 USC §362(b)(23), (m.)

F. Notices

1. In General

a. Notice Requirements

An unlawful detainer proceeding is usually initiated by serving the tenant with a 3-day notice to pay rent or quit (CCP §1161(2)-(3)) or a 30-day or 60-day notice of termination of a residential tenancy (CC §§1946, 1946.1.) See Saberi v Bakhtiari (1985) 169 CA3d 509, 514, 215 CR 359. See also CC §789 (tenancy, however created, may be terminated by landlord's written notice to tenant.)

No particular format is required for the notice, but it must be in writing, and if the breach is curable, the notice must be stated in the alternative to give the tenant the opportunity to cure the default. CC §§1946, 1946.1(f); CCP §1161(2)-(3.) A lessor's or owner's notice must contain statutory language about the tenant's right to reclaim abandoned personal property. CC §§1946, 1946.1(h.) The plaintiff may not file the complaint until the time limit for the tenant to perform has expired. Lamanna v Vognar (1993) 17 CA4th Supp 4, 7-8, 22 CR2d 501. See CC §790 (landlord may not proceed under law to recover possession until period specified by notice has expired.)

b. Three-Day Notices

(1) General Use

Among 3-day notices are notices to quit, notices to perform covenant or quit, and notices to pay rent or quit. Three-day notices to quit are used when the tenant has allegedly breached a covenant in the lease, which cannot be cured. A 3-day notice-to-perform covenant or quit is used when there has been a curable breach other than nonpayment of rent, e.g., breach of a covenant not to assign or sublet the premises. See CCP §1161(2)-(3.)

The most common notice is a 3-day notice to pay rent or quit. Unless the breach is not curable, the notice must be stated in the alternative (e.g., "pay rent or quit".) Delta Imports, Inc. v Municipal Court(1983) 146 CA3d 1033, 1036, 194 CR 685. The 3-day notice to pay rent or quit must state the amount due. It must also list the name, telephone number, and address of the person to whom rent is due. If rent may be paid in person, the notice must list the days and hours the person can receive payment. But if the address does not allow for personal delivery, it is presumed that the tenant's mailing of any rent or notice to the owner is deemed received on the date mailed if the tenant can show proof of mailing. The notice may list the number of a financial institution account rent may be paid into, and the institution's name and street address if within 5 miles of the rental property. If an electronic funds transfer procedure has been previously established, the notice may state that payment may be made under that procedure. See CCP §1161(2.)

A 3-day notice that listed a website address instead of a physical address where rent could be paid was invalid under CCP §1161(2.) Foster v Williams(2014) 229 CA4th Supp 9, 15-16, 177 CR3d 371. The notice also did not comply with the statute because it did not indicate rent could be paid under a previously established electronic funds transfer procedure. Foster v Williams, supra, 229 CA4th Supp at 16-18. This notice may be served at any time within 1 year after the rent becomes due and must be served on the tenant or a subtenant in actual possession. CCP §1161(2.) Even if the landlord does not elect to pursue the summary remedy of unlawful detainer, the landlord must still serve the tenant with the 3-day notice prescribed by CCP §1161(2) or provide the tenant with an opportunity to avoid forfeiture by making a demand for rent as required by the common law. Gersten Cos. v Deloney (1989) 212 CA3d 1119, 1128, 261 CR 431. The tenant of a dwelling may not waive the notice provisions of CCP §1161(2.) 212 CA3d at 1128.

A landlord's election to declare a forfeiture of the lease or rental agreement on a 3-day notice is nullified and the lease or rental agreement remains in effect if the tenant performs within 3 days after service of the notice or if the landlord waives the breach after service of the notice. CCP §1161.5.

(2) Nuisance or Illegal Use

A landlord may serve a 3-day notice to quit on a tenant who is permitting a nuisance (including the sale of illegal substances or unlawful sale or possession of illegal weapons) on the premises, or who uses the premises for any illegal purpose. See CCP §1161(4.) This is considered an incurable breach, and the landlord is entitled to file a UD action on the expiration of the 3-day period if the tenant has not vacated.

A "nuisance" is defined as an act that is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses or that obstructs the free use of property so as to interfere with the comfortable enjoyment of life or property. See CC §3479.

A nuisance includes the illegal use, manufacture, causing to be manufactured, importation, possession, possession for sale, sale, furnishing, or giving away of any of the following (CCP §1161(4); CC §3485(c)):

• A firearm, as defined in Pen C §16520(a.)
• Any ammunition, as defined in Pen C §§16150(b), 16650, or 16660.
• Any assault weapon, as defined in Pen C §§30510 or 30515.
• Any .50 BMG rifle, as defined in Pen C §30530.
• Any tear gas weapon, as defined in Pen C §17250.

A nuisance also includes committing an offense involving the manufacture, cultivation, importation into the state, transportation, possession, possession for sale, sale, furnishing, administering, or giving away, or providing a place to use or fortification of a place involving controlled substances. CCP §1161(4); CC §3486(c.) It is also a nuisance to use any building or property to willfully conduct dogfighting or cockfighting. CCP §1164(4); CC §3482.8.

 detainer actions may be initiated by prosecutors or city attorneys against tenants in certain cities in Alameda, Los Angeles, and Sacramento Counties who are engaged in controlled substance, unlawful weapons, or ammunition activities. See CC §§3485-3486.5.

In addition, if a person commits an act of domestic violence (see Fam C §6211), sexual assault (see Pen C §§261, 261.5, 262, 286, 288a, 289), or stalking (see CC §1708.7) against another tenant or subtenant on the premises, there is a rebuttable presumption affecting the burden of proof that the person has committed a nuisance on the premises. The presumption does not apply, however, if the victim of the act, or a household member of the victim other than the perpetrator, has not vacated the premises. Note that this provision does not supersede the provisions of the Violence Against Women and Department of Justice Reauthorization Act of 2005 (Pub L 109-162) that permit the removal from a lease of a tenant who engages in criminal acts of physical violence against cotenants. CCP §1161(4.)

A landlord has a tort duty to evict a vicious or dangerous tenant only when the tenant's behavior make violence toward neighbors or others on the premises highly foreseeable. Castaneda v Olsher (2007) 41 C4th 1205, 1219-1222, 63 CR3d 99 (tenancy governed by Mobilehome Residency Law, which requires cause for eviction.)

c. Thirty-Day or 60-Day Notice

A 30-day notice (see CC §1946) or 60-day notice (see CC §1946.1) to quit usually addresses the situation in which the landlord wishes to terminate an indefinite term tenancy (i.e., a holdover tenant or a tenant on a month-to-month tenancy.) See CCP §1161(5) (holdover tenant); see also CC §1945 (implied renewal if landlord accepts rent after lease expired); Kaufman v Goldman (2011) 195 CA4th 734, 740-741, 124 CR3d 555 (term not renewed by tender of checks after right of occupancy expired under agreement to vacate premises.)

Unless local ordinances or federal regulations (in the case of subsidized housing) provide otherwise, a landlord generally may terminate a periodic tenancy without cause by serving the tenant with a 30-day notice if the tenant or resident has resided in the dwelling less than 1 year. See CC §§1946, 1946.1(c.) A 30-day notice may not include a request for pre-termination rent, although such a notice will not invalidate the unlawful detainer complaint. Saberi v Bakhtiari (1985) 169 CA3d 509, 512-513, 517, 215 CR 359 (tenant may object to improper request for pretermination rent by motion to strike or defense in answer, but not by motion to quash service of summons.) The landlord and tenant may provide by agreement at the time the tenancy is created that either party may terminate the tenancy on less than 30 days' notice; but the agreement may not provide for less than 7 days' notice. CC §1946.

A landlord must give a 60-day notice to a residential tenant or resident who has resided on the premises for 1 year or more. CC §1946.1(b.)

Finally, an owner of a residential dwelling who is selling the premises may give a 30-day notice if (CC §1946.1(d)): (1) The dwelling or unit is alienable separate from title to any other dwelling or unit; (2) The owner has contracted to sell the dwelling or unit to a bona fide purchaser for value, and has established an escrow with a title insurer or an underwritten title company, or a licensed escrow agent or real estate broker; (3) The purchaser is a natural person or persons; (4) The notice is given no more than 120 days after the escrow was established; (5) Notice was not previously given under this section; and (6) The purchaser in good faith intends to reside in the property for at least 1 full year.

d. When Notice Is Not Required

No notice is required for an unlawful detainer action based on the expiration of a fixed-term tenancy. CCP §1161(1); Stephens v Perry(1982) 134 CA3d 748, 757 n4, 184 CR 701. No notice is required when the tenant occupies the property as part of employment (e.g., as an apartment manager) that has been terminated. See CCP §1161(1.)

2. Overstatement of Rent

a. Statement of Amount Due

For residential tenancies, the 3-day notice to pay rent or quit must accurately state the amount that is due and various other payment information. See CCP §1161(2.) A notice that overstates the amount of rent due is ineffective and will not support an unlawful detainer action. See Levitz Furniture Co. v Wingtip Communications, Inc. (2001) 86 CA4th 1035, 1038, 1040, 103 CR2d 656; Bevill v Zoura (1994) 27 CA4th 694, 696-698, 32 CR2d 635. One purpose of this provision is to discourage landlords from claiming an overdue rental figure that is so exaggerated that a tenant would never choose to pay. Levitz Furniture Co. v Wingtip Communications, Inc., supra, 86 CA4th at 1040.

Even a minor overstatement of the rent due may be sufficient to render the notice defective. See Nourafchan v Miner (1985) 169 CA3d 746, 763, 215 CR 450 (error of $5.96 when more than $1000 rent was due rendered the notice defective.) But see Gruzen v Henry (1978) 84 CA3d 515, 519, 148 CR 573, in which the court refused to overturn an unlawful detainer judgment despite the de minimus nature of the error of $18 when a total amount of $582 rent was due. Although Nourafchan and Gruzen are often cited for the two sides of the minor overstatement of rent issue, neither case ruled directly on the issue. Johnson v Sanches (1942) 56 CA2d 115, 116-117, 132 P2d 853, applied the precise amount rule to CCP §1161 in the context of a notice that was almost double the amount of rent due.

b. Commercial Tenancies

The "precise sum of rent due" rule does not apply in commercial tenancies. Under CCP §1161.1(a), the notice may claim an amount that is reasonably estimated. Such a provision makes sense in a commercial context because monthly rent is not always easily fixed or readily ascertained by simply reading the terms of the lease, e.g., the rent is often affected by the tenant's revenues, assessments made by taxing authorities that are passed on to the tenant, and the like. Levitz Furniture Co. v Wingtip Communications, Inc. (2001) 86 CA4th 1035, 1040, 103 CR2d 656. There is a presumption that the amount of rent claimed is reasonably estimated if it is no more than 20 percent higher than the rent that is determined to be due. CCP §1161.1(e.) Under CCP §1161.1(e), when the landlord's excessive demand does not exceed 20 percent, the burden shifts to the commercial tenant to prove that the demand was unreasonable. Cinnamon Square Shopping Ctr. v Meadowlark Enters.(1994) 24 CA4th 1837, 1843, 30 CR2d 697. However, even with this greater latitude, 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, 534, 32 CR2d 511.

3. Service of Notice

a. In General

Proper service on the tenant of a valid notice to quit is jurisdictional and a prerequisite to a judgment declaring a landlord's right to possession. Liebovich v Shahrokhkhany (1997) 56 CA4th 511, 513, 65 CR2d 457 (3-day notice to pay rent or quit.) The landlord must allege and prove proper service of the required notice; a court may not issue a judgment for possession in the landlord's favor without evidence that the required notice was properly served. 56 CA4th at 513. When the fact of service is contested, compliance with one of the statutory methods for service must be shown. 56 CA4th at 514. Affidavits of service may not be relied on at trial to prove the notice to quit was served in accordance with the statutory requirements; the testimony of the person who made the service is required (56 CA4th at 514), unless service was made by a sheriff, marshal, or registered process server (see Evid C §647; Govt C §§26662, 71265.)

When service is carried out by a registered process server, Evid C §647 applies to eliminate the necessity of calling the process server as a witness at trial. Under Evid C §647, the return of a registered process server establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return. Palm Prop. Invs., LLC v Yadegar (2011) 194 CA4th 1419, 1427, 123 CR3d 816.

A 3-day notice to pay rent or quit must be served within 1 year after the rent is due. A notice that demands more than 1 year's rent is defective. Levitz Furniture Co. v Wingtip Communications, Inc. (2001) 86 CA4th 1035, 1038, 103 CR2d 656; Bevill v Zoura (1994) 27 CA4th 694, 697, 32 CR2d 635

The tenant of a dwelling may not waive the notice provisions of CCP §1161(2.) Gersten Cos. v Deloney (1989) 212 CA3d 1119, 1128, 261 CR 431.

Cotenants. Service on one of several tenants named in a lease constitutes service on the cotenants. Univ. of Southern Cal. v Weiss (1962) 208 CA2d 759, 769-770, 25 CR 475.

Subtenants. The landlord need only serve the tenant, not any subtenants, to maintain an unlawful detainer action against the tenant. Chinese Hosp. Found. Fund v Patterson (1969) 1 CA3d 627, 631-632, 81 CR 795. But to evict the tenant and a subtenant for a curable breach, the subtenant must be served with a separate notice; service of a copy of the tenant notice is not sufficient. Briggs v Electronic Memories & Magnetics Corp. (1975) 53 CA3d 900, 904-905, 126 CR 34. In comparison, it appears that subtenants need not be served a notice based on an incurable default. See Four Seas Inv. Corp. v International Hotel Tenants' Ass'n (1978) 81 CA3d 604, 611-612, 146 CR 531 (subtenants not served with 30-day notice.)

b. Methods of Service

Compliance with statutory requirements. A landlord must strictly comply with the statutory requirements for service of the notice to quit. Liebovich v Shahrokhkhany (1997) 56 CA4th 511, 513, 65 CR2d 457. Under CCP §1162(a), the notice to quit must be served on a residential tenant by: (1) personal service on the tenant; (2) substituted service—leaving a copy with a person of suitable age and discretion at the tenant's residence or business and simultaneously mailing a copy to the tenant at his or her residence (if the tenant is not home or at his or her usual place of business); or (3) affixing a copy of the notice to a conspicuous place on the property if the tenant's place of residence and business cannot be ascertained, or a person of suitable age or discretion there cannot be found, and by also delivering a copy to a person residing there (if such a person can be found) and mailing a copy to the tenant at the property. This last method is known as "nail and mail." Unless there is an admission of receipt, service of the notice by certified mail is not equivalent to personal service under CCP §1162(a)(1.) Liebovich v Shahrokhkhany, supra, 56 CA4th at 516.

Service of the notice on a subtenant may also be made in the same manner. CCP §1162(a)(3.)

Service of a notice terminating a tenancy for an unspecified term or a periodic tenancy (e.g., from month-to-month) differs in that it may be given either in the manner prescribed by CCP §1162, or by sending a copy of the notice to the tenant by certified or registered mail. CC §1946.

Substituted service. Code of Civil Procedure §1162 does not require reasonable diligence in attempting personal service before substituted service may be used. Nourafchan v Miner (1985) 169 CA3d 746, 750-751, 215 CR 450. For example, if the tenant is not at home or at his or her usual place of business when personal service is attempted, the notice may be served by substituted service without making further attempts at personal service.

Substituted service must be attempted, however, before service by posting and mailing. Hozz v Lewis (1989) 215 CA3d 314, 317-318, 263 CR 577. A person using the posting and mailing method of service must first have determined that the tenant's residence and business cannot be ascertained or that a person of suitable age and discretion cannot be found there. Highland Plastics, Inc. v Enders (1980) 109 CA3d Supp 1, 6, 167 CR 353. The issue of "suitable age" depends on the facts of the case. See Lehr v Crosby (1981) 123 CA3d Supp 1, 6, 177 CR 96 (16-year-old child was found to be of "suitable age".)

A landlord need not "conduct an extensive investigation of all the possible whereabouts of its tenants before seeking the posting alternative" to personal service under CCP §415.45. Bd. of Trustees of the Leland Stanford Jr. Univ. v Ham (2013) 216 CA4th 330, 334, 338-341, 156 CR3d 893 (within court's discretion to accept service by posting and mailing when process server went to address on 5 different days to serve tenant who had her university employment terminated and was not represented by counsel, and no other adult was found on premises.)

Insufficient service. Under CCP §1162(a)(3), posting of the notice without also mailing the notice does not constitute sufficient service. Jordan v Talbot (1961) 55 C2d 597, 609, 12 CR 488. Service of a 3-day notice to quit by certified mail, return receipt requested, is not, by itself, a sufficient method of service under either CCP §1162(a)(2) or CCP §1162(a)(3.) Liebovich v Shahrokhkhany, supra, 56 CA4th at 516. Post-and-mail service "is not authorized as a first-resort method of service." Bank of New York Mellon v Preciado (2013) 224 CA4th Supp 1, 8, 169 CR3d 653 (proofs of service do not indicate tenants or anyone of a suitable age were not home when process server posted notice on property.)

Service on commercial tenant. Under CCP §1162(b), the notice to quit must be served on a commercial tenant by: (1) personal service on the tenant; (2) substituted service—leaving a copy with a person of suitable age and discretion at the commercial property and simultaneously mailing a copy to the tenant at the property; or (3) affixing a copy of the notice to a conspicuous place on the property if a person of suitable age or discretion is not found at the property through the exercise of reasonable diligence, and by also mailing a copy to the tenant at the property. Service on a subtenant may be made in the same manner. A "commercial tenant" means a person or entity that hires any real property that is not a dwelling unit, as defined in CC §1940(c), or a mobilehome, as defined in CC §798.3. CCP §1162(c.)

c. One-Year Limitation

In addition to meeting the "precise sum of rent due" rule, a 3-day notice must be served within 1 year after the rent becomes due. CCP §1161(2.)  If the landlord waits over 1 year to sue for unpaid rent, the landlord is limited to collecting this rent in a standard breach of contract action, which can result only in a money judgment without restitution of the rented property. Levitz Furniture Co. v Wingtip Communications, Inc. (2001) 86 CA4th 1035, 1038, 1042, 103 CR2d 656. The purpose of this provision is to prevent a landlord from sitting on his or her rights when rent is unpaid at some point during the term of the lease, then using long-overdue rent (but no recently overdue rent) to effect an eviction. 86 CA4th at 1040.

A commercial tenancy, however, in addition to not being subject to the precise sum of rent rule, is not automatically invalidated because it demands rent due more than 1 year before the notice. 86 CA4th at 1040, 1042.

d. Time To Respond to Notice

When service is by mail. There is disagreement about whether the tenant's time to respond to the notice is extended under CCP §1013 when the notice is served by mail under either CCP §1162(2) or CCP §1162(3.) The prevailing authority indicates that the tenant's response time is not extended. See Losornio v Motta (1998) 67 CA4th 110, 112, 78 CR2d 799 (CCP §1013, which generally extends notice periods for service by mail, does not apply to 3-day and 30-day notice periods under unlawful detainer statutes); Walters v Meyers(1990) 226 CA3d Supp 15, 18, 277 CR 316 (CCP §1013 does not extend tenant's time to respond to 3-day notice); Highland Plastics, Inc. v Enders(1980) 109 CA3d Supp 1, 7-10, 167 CR 353 (CCP §1013 does not extend tenant's time to respond to 30-day notice); but see Davidson v Quinn (1982) 138 CA3d Supp 9, 11, 188 CR 421 (3 days "actual" notice is required.)

When there is an intervening weekend or holiday. If a 3-day notice requires performance on a holiday, Saturday, or Sunday, CCP §§10-13b (computation of time generally) permit the tenant to perform on the next court day. See Lamanna v Vognar (1993) 17 CA4th Supp 4, 7-8, 22 CR2d 501. The plaintiff may not file the complaint until the court day after the tenant may perform. 17 CA4th Supp at 7-8.

G. Tenant Defenses

1. Listing of Common Defenses

A tenant may assert only those defenses that, if proved, would either preserve the tenant's possession of the property or preclude the landlord from recovering possession. Drouet v Superior Court (2003) 31 C4th 583, 587, 3 CR3d 205; Vella v Hudgins (1977) 20 C3d 251, 255, 142 CR 414. Specifically recognized defenses include the following:

(1) Breach of warranty of habitability.

(2) Waiver of notice to quit. The landlord waived, changed, or canceled the notice to quit. If part of the rent is accepted after the notice is given in a residential rental setting, the landlord may have waived the right to proceed on the original notice. EDC Assoc. Ltd. v Gutierrez (1984) 153 CA3d 167, 170, 200 CR 333. If the notice does not contain a forfeiture declaration, the tenant may pay the rent due after the expiration of the notice and retain possession. Briggs v Electronic Memories & Magnetics Corp. (1975) 53 CA3d 900, 905, 126 CR 34.