The California Landlords Eviction Law Book

12th edition
The California
Landlord’s Law Book:
Evictions
by Attorney David Brown
edited by Janet Portman
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please note
12th edition
The California
Landlord’s Law Book:
Evictions
by Attorney David Brown
edited by Janet Portman
TWELFTH EDITION FEBRUARY 2007
Editor JANET PORTMAN
Book Design TERRI HEARSH
Production MARGARET LIVINGSTON
CD-ROM Preparation ELLEN BITTER
Proofreading ROBERT WELLS
Index MICHAEL FERREIRA
Cover Photography TONYA PERME (www.tonyaperme.com)
Printing DELTA PRINTING SOLUTIONS, INC.
Brown, David Wayne, 1949-
The California landlord’s law book. Evictions / by David Brown ; edited by Janet
Portman.-- 12th ed.
p. cm.
ISBN-13: 978-1-4133-0570-8
ISBN-10: 1-4133-0570-9
1. Landlord and tenant--California--Popular works. 2. Eviction--California--Popular
works. I. Portman, Janet. II. Title. III. Title: Landlord’s law book. IV. Title: Evictions.
KFC145.Z9B762 2007
346.79404'34--dc22
2006047126
Copyright © 1986, 1989, 1990, 1993, 1994, 1996, 1997, 2000, 2002, 2004, 2005, and 2007 by
David Brown.
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Acknowledgments
This book could not have been published without the generous assistance of
many people. A special thank you to Mary Randolph, Steve Elias, Jake War-
ner, Marcia Stewart, Patricia Gima, and Janet Portman, who all tirelessly read
the entire manuscript several times and made numerous helpful suggestions,
nearly all of which were incorporated. If you find this book easy to follow
and enjoyable to read (well, not like a novel), Mary, Steve, Jake, Marcia, Pa-
tricia, and Janet deserve most of the credit.
Thanks also to Robin Leonard, Amy Ihara, John O’Donnell, Barbara Hodovan,
Kate Thill, Carol Pladsen, Stephanie Harolde, Julie Christianson, David Cole,
Ann Heron, Jack Devaney, Susan Quinn, Alison Towle, and especially Toni
Ihara and Terri Hearsh, who were responsible for the layout of this book.
Ira Serkes, past president of the Rental Housing Association of Contra Costa
County, read the manuscript and made helpful suggestions. Martin Dean,
of Martin Dean Essential Publishers, Inc., generously gave us permission to
reprint one of their forms.
About the Author
David Brown practices law in the Monterey, California, area, where he has
represented both landlords and tenants in hundreds of court cases—most
of which he felt could have been avoided if both sides were more fully in-
formed about landlord/tenant law. Brown is a graduate of Stanford University
(chemistry) and the University of Santa Clara Law School. He is the author of
Fight Your Ticket and Win in California and Beat Your Ticket (national), and
the coauthor of The California Landlords Law Book: Rights & Responsibilities
and The Guardianship Book, all published by Nolo.
Table of Contents
1
Evictions in California: An Overview
The Landlord’s Role in Evictions ................................................................................................. 2
Proceed With Caution When Evicting a Tenant ...........................................................................
3
When Not to Use This Book ....................................................................................................... 3
A Reason for Which You Must Evict: Drug Dealing ..................................................................... 4
Evictions in Certain Cities ........................................................................................................... 5
Evicting Roommates ...................................................................................................................5
Evicting a Resident Manager ....................................................................................................... 7
Attorneys and Eviction Services ..................................................................................................8
How to Use This Book ................................................................................................................ 8
2
Eviction for Nonpayment of Rent
Overview of the Process ........................................................................................................... 12
Preparing the Three-Day Notice to Pay Rent or Quit .................................................................
12
Serving the Three-Day Notice on the Tenant .............................................................................
18
After the Three-Day Notice Is Served ........................................................................................
23
When to File Your Lawsuit ........................................................................................................ 24
3
Eviction by 30-Day or 60-Day Notice
Overview of the Process ........................................................................................................... 26
When a Tenancy May Be Terminated With a 30-Day or 60-Day Notice ....................................
26
Impermissible Reasons to Evict ................................................................................................. 26
30-Day, 60-Day, and 90-Day Notices ....................................................................................... 28
Rent Control and Just Cause Eviction Ordinances ..................................................................... 30
Should You Use a Three-Day, 30-Day, or 60-Day Notice? .........................................................
35
Preparing the 30-Day or 60-Day Notice ................................................................................... 35
Serving the Notice .................................................................................................................... 38
When to File Your Lawsuit ........................................................................................................ 39
4
Eviction for Lease Violations, Property Damage, or Nuisance
When to Use This Chapter ........................................................................................................ 42
The Two Types of Three-Day Notices ........................................................................................42
Using the Three-Day Notice to Perform Covenant or Quit ........................................................ 44
Using and Preparing an Unconditional Three-Day Notice to Quit ............................................
45
Serving the Three-Day Notice (Either Type) ...............................................................................
48
Accepting Rent After the Notice Is Served .................................................................................
49
When to File Your Lawsuit ........................................................................................................ 52
5
Eviction Without a Three-Day or Other Termination Notice
Lease Expiration ....................................................................................................................... 54
Termination by the Tenant ........................................................................................................56
Checklist for Uncontested “No-Notice” Eviction ......................................................................
56
6
Filing and Serving Your Unlawful Detainer Complaint
How to Use This Chapter ..........................................................................................................60
When to File Your Unlawful Detainer Complaint ......................................................................
60
Where to File Suit .....................................................................................................................60
Preparing the Summons ............................................................................................................ 61
Preparing the Complaint ..........................................................................................................65
Preparing the Civil Case Cover Sheet ........................................................................................
78
Getting the Complaint and Summons Ready to File .................................................................. 80
Filing Your Complaint and Getting Summonses Issued .............................................................. 82
Serving the Papers on the Defendant ........................................................................................
82
What Next? .............................................................................................................................. 94
7
Taking a Default Judgment
When Can You Take a Default? ................................................................................................. 96
The Two-Step Default Judgment Process ...................................................................................
97
Getting a Default Judgment for Possession ...............................................................................
97
Having the Marshal or Sheriff Evict .........................................................................................110
Getting a Money Judgment for Rent and Costs ........................................................................
111
8
Contested Cases
What Is Involved in a Contested Eviction Case .......................................................................133
Should You Hire an Attorney? ................................................................................................. 133
How to Settle a Case .............................................................................................................. 134
The Tenant’s Written Response to an Unlawful Detainer Complaint ........................................
140
Responding to the Answer ...................................................................................................... 147
Other Pretrial Complications .................................................................................................. 170
Preparing for Trial ................................................................................................................... 171
The Trial ................................................................................................................................. 179
The Writ of Execution and Having the Sheriff or Marshal Evict ...............................................182
Appeals .................................................................................................................................. 183
Tenant’s Possible “Relief From Forfeiture” ...............................................................................
183
9
Collecting Your Money Judgment
Collection Strategy ................................................................................................................. 187
Using the Tenant’s Security Deposit ........................................................................................ 188
Finding the Tenant .................................................................................................................. 188
Locating the Tenant’s Assets .................................................................................................... 190
Garnishing Wages and Bank Accounts ...................................................................................
195
Seizing Other Property ........................................................................................................... 199
If the Debtor Files a Claim of Exemption ................................................................................
202
Once the Judgment Is Paid Off ................................................................................................ 202
10
When a Tenant Files for Bankruptcy
When a Tenant Can File for Bankruptcy .................................................................................. 206
The Automatic Stay ................................................................................................................. 206
Appendix 1
Rent Control Chart
Appendix 2
How to Use the CD-ROM
Appendix 3
Tear-Out Forms
Forms for ending the tenancy
Three-Day Notice to Pay Rent or Quit
30-Day Notice of Termination of Tenancy (Tenancy Less Than One Year)
60-Day Notice of Termination of Tenancy (Tenancy of One Year or Longer)
90-Day Notice of Termination of Tenancy (Subsidized Tenancies)
Three-Day Notice to Perform Covenant or Quit
Three-Day Notice to Quit (Improper Subletting, Nuisance, Waste, or Illegal Use)
Forms for filing an eviction lawsuit
Summons—Unlawful Detainer—Eviction
Complaint—Unlawful Detainer
Civil Case Cover Sheet
Civil Case Cover Sheet Addendum and Statement of Location
Proof of Service of Summons
Application and Order to Serve Summons by Posting for Unlawful Detainer
Prejudgment Claim to Right of Possession
Blank Pleading Paper
Forms for default judgments
Request for Entry of Default
Writ of Execution
Application for Issuance of Writ of Execution, Possession or Sale
Declaration in Support of Default Judgment for Rent, Damages, and Costs (3-, 30-, 60- or 90-Day
Notice)
Declaration in Support of Default Judgment for Damages and Costs (Violation of Lease)
Declaration for Default Judgment by Court
Forms for contested evictions
Judgment—Unlawful Detainer
Stipulation for Entry of Judgment
Request/Counter-Request to Set Case for Trial—Unlawful Detainer
Notice of Motion for Summary Judgment; Plaintiff’s Declaration; and Points and Authorities
Proof of Personal Service
Order Granting Motion for Summary Judgment
Judgment Following Granting of Motion for Summary Judgment
Judgment—Unlawful Detainer Attachment
Forms for collecting your money judgment
Application and Order for Appearance and Examination
Questionnaire for Judgment-Debtor Examination
Application for Earnings Withholding Order (Wage Garnishment)
Acknowledgment of Satisfaction of Judgment
Proof of Service by Mail
Index
C H A P T E R
1
Evictions in California: An Overview
The Landlord’s Role in Evictions .................................................................................... 2
Proceed With Caution When Evicting a Tenant.............................................................. 3
When Not to Use This Book .......................................................................................... 3
A Reason for Which You Must Evict: Drug Dealing ........................................................ 4
Evictions in Certain Cities ............................................................................................. 5
Cities With Rent Control .......................................................................................... 5
San Diego and Glendale .......................................................................................... 5
Evicting Roommates ...................................................................................................... 5
Evicting a Resident Manager ......................................................................................... 7
Separate Management and Rental Agreements ......................................................... 7
Single Management/Rental Agreement ..................................................................... 7
Attorneys and Eviction Services ..................................................................................... 8
How to Use This Book .................................................................................................. 8
2 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
S
ometimes even the most sincere and professional
attempts at conscientious landlording fail, and
you have to consider evicting a tenant. This is a
do-it-yourself eviction manual for California landlords.
It shows you, step by step, how to file and conduct an
uncontested eviction lawsuit against a residential tenant.
It does not cover how to evict a hotel guest, a tenant in
a mobile home park, or a commercial tenant. Neither
does it show a new owner, who has just purchased
property at a foreclosure sale, how to evict a former
owner (or his tenant).
The Landlord’s Role in Evictions
Strictly speaking, the word “evict” refers to the process
of a sheriff or marshal ordering a tenant to get out
or be forcibly removed. It is illegal for you to try to
physically evict a tenant yourself. The sheriff or marshal
will only evict a tenant pursuant to a court order known
as an “unlawful detainer judgment.” To get such a
judgment, you must bring an eviction lawsuit, called an
“unlawful detainer action,” against the tenant.
The linchpin of an unlawful detainer suit is proper
termination of the tenancy; you can’t get a judgment
without it. This usually means giving your tenant
adequate written notice, in a specified way. The law
sets out very detailed requirements for landlords who
want to end a tenancy. If you don’t meet them exactly,
you will lose your suit even if your tenant has bounced
checks, including your rent check, from here to
Mandalay.
This legal strictness is not accidental; it reflects
the law’s bias in favor of tenants. The law used to
be heavily weighted on the landowner’s side, but
attitudes have changed, and today the law puts more
value on a tenant’s right to shelter than a landlord’s
right to property. As one court put it, “Our courts were
never intended to serve as rubber stamps for landlords
seeking to evict their tenants, but rather to see that
justice be done before a man is evicted from his home.”
(Maldanado v. Superior Court (1984) 162 Cal. App. 3d
1259, 1268-69.)
Because an eviction judgment means the tenant
won’t have a roof over his head (and his children’s
heads), judges are very demanding of the landlord. In
addition, many California cities go beyond state law,
which allows the termination of periodic tenancies
at the will of the landlord, and require the landlord
to show a “just cause” for eviction. In these cities,
nonpayment of rent is still a straightforward ground for
eviction, but there are few others.
Why do we emphasize the negatives of evicting
a tenant? Because we want you to understand at the
outset that even if you properly bring and conduct
an unlawful detainer action, you are not assured of
winning and having the tenant evicted if the tenant
decides to file a defense. In other words, despite the
merits of your position, you may face a judge who will
hold you to every technicality and bend over backwards
to sustain the tenant’s position. A tenant can raise many
substantive, as well as procedural, objections to an
unlawful detainer suit. Essentially, any breach by you
of any duty imposed on landlords by state or local law
can be used by your tenant as a defense to your action.
Simply put, unless you thoroughly know your legal
rights and duties as a landlord before you go to court,
and unless you dot every “i” and cross every “t,” you
may end up on the losing side. Our advice: Especially
if your action is contested, be meticulous in your
preparation.
Before you proceed with an unlawful detainer
lawsuit, consider that even paying the tenant a few
hundred dollars to leave right away may be cheaper
in the long run. For example, paying a tenant $500
to leave right away (with payment made only as the
tenant leaves and hands you the keys) may be cheaper
than spending $100 to file suit and going without rent
for three to eight weeks while the tenant contests the
lawsuit and stays. The alternative of a several-month-
long eviction lawsuit—during which you can’t accept
rent that you may be unable to collect even after
winning a judgment—may, in the long run, be more
expensive and frustrating than paying the tenant to
leave and starting over with a better tenant quickly.
Note of Sanity. Between 80% and 90% of all
unlawful detainer actions are won by landlords
because the tenant fails to show up. So the odds favor
relatively smooth sailing in your unlawful detainer action.
CHAPTER 1: EVICTIONS IN CALIFORNIA: AN OVERVIEW 3
Proceed With Caution When
Evicting a Tenant
The moment relations between you and one of your
tenants begin to sour, you will be wise to remember
a cardinal truth. Any activity by you that might
be construed by your tenant as illegal, threatening,
humiliating, abusive, or invasive of his privacy can
potentially give rise to a lawsuit against you for big
bucks. So, although the unlawful detainer procedure
can be tedious, it’s important to understand that it is the
only game in town.
Shortcuts such as threats, intimidation, utility shutoffs,
or attempts to physically remove a tenant are illegal
and dangerous. If you resort to them, you may well
find yourself on the wrong end of a lawsuit for such
personal injuries as trespass, assault, battery, slander
and libel, intentional infliction of emotional distress,
and wrongful eviction. A San Francisco landlord was
ordered to pay 23 tenants $1.48 million in 1988, after a
jury found he had cut off tenants’ water, invaded their
privacy, and threatened to physically throw them out.
(The verdict was reduced on appeal, to half a million
dollars.) (Balmoral Hotel Tenants Association v. Lee
(1990) 226 Cal. App. 3d 686, 276 Cal. Rptr. 640.)
To avoid such liability, we recommend that you
avoid all unnecessary one-on-one personal contact with
the tenant during the eviction process unless it occurs
in a structured setting (for example, during mediation,
at a neighborhood dispute resolution center, or in
the presence of a neutral third party). Also keep your
written communications to the point and as neutral as
you can, even if you are boiling inside. Remember, any
manifestations of anger on your part can come back to
legally haunt you somewhere down the line. Finally,
treat the tenant like she has a right to remain on the
premises, even though it is your position that she
doesn’t. Until the day the sheriff or marshal shows up
with a writ of possession, the tenant’s home is legally
her castle, and you may come to regret any actions on
your part that don’t recognize that fact.
When Not to Use This Book
Most of you fit within the most common eviction
situation: You (or the owner, if you are a manager)
own residential rental property which you operate as a
business. You need to evict a tenant who has not paid
the rent, has violated another important rental term or
condition, or has held over past the expiration of his or
her lease or rental agreement. This is the book for you,
to use on your own or in conjunction with an attorney.
There are some situations, however, that this book
doesn’t address. Do not use this book, or its forms, if
any of the following scenarios describe you.
You have bought the property at a foreclosure sale
and need to evict the former owner, who has not
moved out. If you now want to get rid of the former
owner-occupant, you must use a special unlawful
detainer complaint, unlike the forms contained in this
book. You’ll need to see a lawyer.
You have bought the property at a foreclosure sale
and need to evict the tenant of the former owner. If
the occupant is a tenant of the former owner, different
procedures apply depending on whether the tenant’s
lease predated the mortgage or deed of trust foreclosed
upon, and whether you accepted rent from the tenant
after foreclosure. Here are the rules:
If the tenant’s lease or rental agreement began
after the deed of trust was recorded (which
will be true in most cases), the foreclosure sale
has the effect of wiping out the lease or rental
agreement. If you have not accepted rent from
the former owner’s tenant, there is a way to get
the tenant out quickly—but you won’t be able to
use the Complaint forms in this book. You’ll need
to see a lawyer.
If the tenant’s lease began before the deed of trust
was recorded, or if you have accepted rent from a
tenant whose lease or rental agreement predates
the deed of trust, you must honor his lease or
rental agreement just as the former owner did. In
short, you are now the tenant’s landlord, and until
the lease runs out (or you terminate a month-to-
month tenancy with the proper amount of notice),
or until the tenant otherwise violates the rental
conditions, you are stuck with this tenant. If any of
these events come to pass, however, you may use
this book.
4 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
You have purchased the property and want to evict
the former owner’s tenant. When you purchase property
at a normal sale, you “take” it subject to existing leases
or rental agreements. This means that no matter how
much you would like to move in yourself or install
different tenants, you can’t do so until the leases run
out, you terminate a month-to-month with the proper
amount of notice, or the tenant violates an important
rental term or condition. When any of these conditions
are met, however, you may go ahead and use this book
and its forms.
You own commercial property and want to evict a
tenant for nonpayment of rent or other lease violations.
Commercial landlords should not use this book.
Many commercial leases require tenants to pay for
common-area maintenance, prorated property taxes,
and utility charges, in addition to a set monthly sum.
Because the exact rent amount is often not clear, a
special termination notice (not supplied in this book)
must be used. Also, many commercial leases provide
for special types of notice periods and ways to serve
notices, which are different from the ones specified
in this book. Finally, since commercial leases often
run for five or ten years and can be quite valuable
to a tenant, a commercial tenant is much more likely
than a residential tenant to contest an eviction—and
judges are less likely to order an eviction for minor
lease violations. In short, with all these possible
complications, we suggest seeing an attorney to handle
an eviction of a commercial tenant.
A Reason for Which You Must Evict:
Drug Dealing
In cases of drug dealing, it’s not a question of whether
or not it’s permissible to evict a tenant—it’s imperative
to do so. In fact, a landlord who fails to evict a tenant
who deals illegal drugs on the property can face lawsuits
from other tenants, neighbors, and local authorities.
Many landlords have been held liable for tens of
thousands of dollars in damages for failing to evict a
drug-dealing tenant. A landlord can also face loss of the
property.
When it’s a month-to-month tenancy, terminate the
tenancy with a 30-day notice (or 60-day notice if tenant
has stayed a year or more—see Chapter 3 as soon as
you suspect illegal drug activity by the tenant or any
members of the tenant’s family. If the tenant has a
fixed-term lease, you will have to follow the procedures
in Chapter 4. Evictions for drug dealing may be a little
more difficult in rent control cities with “just cause
eviction” provisions in their rent control ordinances;
even so, a landlord faced with a drug-dealing tenant
should do everything he or she can to evict, and should
begin gathering evidence against the drug dealer—
including getting tenants and neighbors to keep records
of heavy traffic in and out of the suspected tenant’s
home at odd hours.
Prosecutors May Evict for You—At a Price
The legislature has established a program for certain
courts within Alameda, Los Angeles, and San Diego
counties that authorizes the city attorney or district
attorney to file an unlawful detainer action against
tenants who are using rental property to sell, use,
store, or make illegal drugs. (H&S § 11571.1.) The
program applies to cases brought in certain cities in
those counties, including the City of Los Angeles,
Long Beach, San Diego, and Oakland. It will expire
January 1, 2010, unless the legislature extends it.
Owners will be given 30 days’ notice of the
intended eviction lawsuit, and will be given 30 days
to proceed with the eviction on their own. If they
decline, they will be expected to furnish relevant
information about the tenants and their activities and
must assign their right to evict to the city. Owners
may be asked to cover up to $600 worth of the
city’s litigation costs. If the owners don’t cooperate
or respond within the 30 days, the city can join the
owners as defendants in the eviction lawsuit. And
if the city has to go this route and wins, the owner
will be ordered to pay the city for the entire cost
of bringing the lawsuit. In Los Angeles, the District
Attorney’s office issues about 500 such eviction
notices per year; 50 to 80 go to trial, and the city
wins 98% of them. (“Law Would Give Oakland
the Muscle to Oust Tenants,” San Francisco Daily
Journal, April 6, 2004.)
Heard enough? The message is clear: Take care of
drug problems yourself, quickly. If you don’t want
to handle the eviction on your own, hire counsel.
Don’t end up footing the bill for the services of
well-paid city attorneys.
CHAPTER 1: EVICTIONS IN CALIFORNIA: AN OVERVIEW 5
Evictions in Certain Cities
Local ordinances in many California cities address
evictions—specifying under what circumstances you
may proceed, and how to proceed. Most of these cities
also have rent control ordinances, but not all, as you’ll
see below.
Cities With Rent Control
If you think all local rent control laws do is control
rents, you have a surprise coming. They also affect
evictions in two important ways: First, many (but not
all) rent control ordinances and regulations impose
important restrictions or additional procedural
requirements on evictions. For example, the ordinances
of some cities require a landlord to have a “just cause”
(good reason) to evict a tenant, sometimes even for
rental units that are exempt from rent control. Local
ordinances also commonly require tenancy termination
notices and complaints to contain statements not
required by state law.
Second, any violation of any provision of a rent
control law may provide a tenant with a defense to
your eviction lawsuit. Even failure to register your rental
units with the local rent board, if that is required under
the ordinance, may provide a tenant with a successful
defense against an eviction suit. Appendix 1 in this
book lists the requirements each rent control city imposes
on eviction lawsuits—such as any applicable registration
requirements or extra information required in three-
day or other termination notices or in the eviction
complaint itself.
No two cities’ rent control ordinances are alike. Within
the space of one book, we can only write instructions
and forms for use by the majority of California landlords
—those who do not have rent control. We cannot
include 15 additional sets that are tailor-made for use
in the 15 cities that have rent control and impose
additional requirements when it comes to filling out
forms. But your rent control ordinance may affect
almost every step in your eviction proceeding. If you
do not conform your notices and court filings to your
ordinance’s requirements, it’s very likely that your
case will be tossed out or lost, perhaps after you’ve
spent considerable time and effort. We cannot say this
strongly enough: Read your rent control ordinance before
you begin an unlawful detainer proceeding and before you
use any of the forms in this book. Begin by reading the
overview in Appendix 1, which tells you what to look
for and where to learn more (often, you can read the
ordinance online).
Cities With Rent Control
Some form of rent regulation now exists in fifteen
California cities:
Berkeley Oakland
Beverly Hills Palm Springs
Campbell (mediation only)* San Francisco
East Palo Alto San Jose*
Fremont (mediation only)* Santa Monica
Hayward Thousand Oaks
Los Angeles West Hollywood
Los Gatos*
*These rent control cities do not have just cause eviction
provisions.
San Diego and Glendale
Two cities without rent control—San Diego and
Glendale—also restrict evictions, though San Diego’s
ordinance applies only to tenancies lasting two
years of more. These cities’ rules do not affect the
procedure for evicting with a three-day notice based
on nonpayment of rent or other breach, or commission
of waste or nuisance. They do affect evictions based
30-day or 60-day terminations of month-to-month
tenancies. See “Checklist for 30- or 60-Day Notice
Eviction” in Chapter 3.
Evicting Roommates
This book was written with the small property owner
in mind, such as an owner of a modest apartment
complex or a single-family rental.
However, some of our readers have used this book
to evict a roommate. If you are thinking about evicting
a roommate, we suggest that you read The Landlord’s
Law Book: Rights & Responsibilities, where we discuss
the legal relationship between roommates.
6 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
A lodger, or roomer, is someone who rents a room
in a house that you own and live in. The rules for
evicting a lodger are covered by California Civil Code
§ 1946.5 and Penal Code §§ 602.3 and 837, and apply
only if you rent to one lodger. (If you have two or more
lodgers, you must use the unlawful detainer procedures
described in this book.) In addition, you must have
overall control of the dwelling unit and have retained a
right of access to areas occupied by the lodger.
If your lodger is a month-to-month tenant and you
want to terminate the tenancy, you can serve the lodger
with a 30-day notice, as explained in Chapter 3. You
may also use a shortcut (not available to landlords
serving nonlodger tenants) and send the notice by
certified or registered mail, restricted delivery, with a
return receipt requested.
A lodger who doesn’t leave at the end of the notice
period is guilty of an infraction. Technically, this entitles
you to do a citizen’s arrest, which means that you can
eject the lodger using reasonable, but not deadly, force.
However, we strongly advise against this tactic, and
instead suggest calling local law enforcement to handle
the situation. Have a copy of your dated termination
notice available. Be aware that many local police do
not know the procedures for evicting lodgers or may
not want to get involved, fearing potential liability for
improperly evicting a tenant. The police may insist that
you go through the normal unlawful detainer lawsuit
process—which will result in a court order authorizing
the police or sheriff to evict the lodger. If the lodger has
stayed for a year or more and the police won’t evict
on your 30-day notice, you will have to start all over
with a 60-day notice according to a different law, Civ.
§ 1946.1. Check with your chief of police to find out
how this issue is handled.
If you need to evict your lodger “for cause”—that
is, for failing to pay the rent or violation of the rental
agreement—you can serve him with a three-day notice,
but if he doesn’t leave you will have to go through an
unlawful detainer lawsuit as explained in this book. You
cannot hand your copy of the three-day notice to the
local police and ask them to remove the lodger. For
this reason, you may want to use the less complicated
route of the 30-day notice, in hopes that, if the lodger
refuses to budge, local law enforcement will honor
your termination notice.
Finally, if your lodger has a lease, you cannot evict
unless he has failed to pay the rent, violated a term
of the lease, or engaged in illegal activity. In these
situations you will need to use a 30-day or 60-day
notice. If the lodger fails to vacate, you must file an
unlawful detainer lawsuit in order to get him out.
Evicting a Lodger
If you want to use this book to evict a roommate,
you must be the original tenant (or the one who has
signed a lease or rental agreement with the landlord),
and the roommate you want to evict must be your
landlord’s “subtenant.” A “subtenant” is usually
someone who is renting part of your place from you
and paying rent to you instead of your landlord. In this
relationship, you are the “landlord” and your roommate
is your “tenant.”
You can’t evict a roommate if you and your
roommate are “cotenants.” You are cotenants if you
and your roommate both signed the lease or rental
agreement.
EXAMPLE: Marlena Mastertenant rents a two-
bedroom house from Oscar Owner for $900 a
month. Marlena rents one of the bedrooms (plus
half the common areas such as kitchen, bathroom,
and hallways) to Susie Subtenant for $400 a month.
Marlena is the tenant and Susie is the subtenant.
Marlena can use the procedures in this book to
evict Susie if Susie doesn’t pay her rent. In the
unlawful detainer complaint (see “Preparing the
Complaint,” Item 3, in Chapter 6), Marlena should
list herself as “lessee/sublessor.”
CHAPTER 1: EVICTIONS IN CALIFORNIA: AN OVERVIEW 7
EXAMPLE: Terry Tenant and Tillie Tenant (brother
and sister) jointly rent a two-bedroom apartment
from Lenny Landlord. They moved in at the same
time and both of them signed the lease. They are
both Lenny’s tenants. Since neither Terry nor Tillie
are each other’s subtenant, they cannot use this book.
The legal relationship between roommates is often
unclear. For example, if one tenant moved in first,
is the second occupant a subtenant because she negotiated
with and rented from the first tenant, or a cotenant because
she claims to have a separate verbal understanding with
the owner regarding rent? If in doubt, see a lawyer before
using this book to evict a roommate you claim is your
subtenant.
Evicting a Resident Manager
If you fire a resident manager, or if he quits, you
will often want him to move out of your property,
particularly if he occupies a special manager’s unit or if
the firing or quitting has generated (or resulted from)
ill will. Eviction lawsuits against former managers
can be extremely complicated. This is especially true
if the management agreement requires good cause
for termination of employment or a certain period of
notice. Such lawsuits can also be complicated where
a single combined management/rental agreement
is used or if local rent control laws impose special
requirements. While all rent control cities do allow
eviction of fired managers, some cities impose
restrictions on it.
This section outlines some of the basic issues involved
in evicting a resident manager. We do not, and cannot,
provide you complete advice on how to evict a resident
manager. In many cases, you will need an experienced
attorney who specializes in landlord-tenant law to
evict a former manager, particularly if the ex-manager
questions whether the firing was legally effective or
proper.
Separate Management and
Rental Agreements
To evict a tenant-manager with whom you signed
separate management and rental agreements (which
allows you to terminate the employment at any time),
you will have to give a normal 30-day written termination
notice, or a 60-day notice if the tenant-manager stayed
for a year or more, subject in either case to any just
cause eviction requirements in rent-control cities. (See
Chapter 3.) If the tenant has a separate fixed-term
lease, you cannot terminate the tenancy until the lease
expires.
Single Management/Rental Agreement
What happens to the tenancy when you fire a manager
(or he quits) depends on the kind of agreement you
and the manager had.
If the Manager Occupied a Special
Manager’s Unit
If your manager occupies a specially constructed
manager’s unit (such as one with a reception area or
built-in desk) which must be used by the manager, or
if she receives an apartment rent-free as part or all of
her compensation, your ability to evict the ex-manager
depends on:
the terms of the management/rental agreement,
and
local rent control provisions.
If the agreement says nothing about the tenancy
continuing if the manager quits or is fired, termination
of the employment also terminates the tenancy. You
can insist that the ex-manager leave right away, without
serving any three-day or other termination notice,
and can file an eviction lawsuit the next day if the ex-
manager refuses to leave.
(See C.C.P. § 1161 (1) and
Lombard v. Santa Monica YMCA (1985) 160 Cal. App.
3d 529.) (See the checklist in Chapter 5.)
The just cause eviction provisions of any applicable
rent control law, however, may still require a separate
notice or otherwise restrict your ability to evict a fired
manager.
If the Manager Didn’t Occupy a Manager’s Unit
If the manager was simply compensated by a rent
reduction, and there is no separate employment
agreement, there may be confusion as to whether the
rent can be “increased” after the manager is fired.
If an ex-manager refuses to pay the full rent, you
will have to serve a Three-Day Notice to Pay Rent or
Quit, demanding the unpaid rent. If she still won’t pay,
you’ll have to follow up with an eviction lawsuit. (See
Chapter 2.)
8 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Attorneys and Eviction Services
While you can do most evictions yourself, there are a
few circumstances when you may want to consult an
attorney who specializes in landlord-tenant law:
The property you own is too far from where
you live. Since you must file an eviction lawsuit
where the property is located, the time and travel
involved in representing yourself may be great.
Your tenant is already represented by a lawyer,
even before you proceed with an eviction.
Your property is subject to rent control and local
ordinances governing evictions.
The tenant you are evicting is an ex-manager
whom you have fired. (See above.)
Your tenant contests the eviction in court. (See
Chapter 8 for more details on hiring an attorney
in contested cases.)
Your tenant files for bankruptcy. (See Chapter 10.)
If you simply want someone to handle the paperwork
and eviction details, you can use an “eviction service.”
(Check the Yellow Pages under this heading.) Because
eviction services cannot represent you in court, however,
they are not helpful where the tenant contests the
eviction in court.
Eviction services must be registered as “unlawful
detainer assistants” with the county in which they
operate, and must also be bonded or insured. (Bus. &
Prof. Code §§ 6400-6415.) In additional, all court papers
filed by an unlawful detainer assistant must indicate
that person’s name, address and country registration
number.
How to Use This Book
This book is a companion volume to The California
Landlord’s Law Book: Rights & Responsibilities, which
discusses the legal rules of renting residential real
property, with an eye toward avoiding legal problems
and fostering good tenant relations. Although you
can use this book as a self-contained do-it-yourself
eviction manual, we strongly recommend that you
use it along with The California Landlord’s Law Book:
Rights & Responsibilities. It’s not just that we want to
sell more books—The California Landlord’s Law Book:
Rights & Responsibilities provides crucial information
on the substance of landlord-tenant law that you
almost certainly will need to know to win a contested
unlawful detainer lawsuit. For example it discusses
leases, cotenants, subtenants, roommates, deposits, rent
increases, rent control laws, privacy, discrimination,
your duty to provide safe housing, and many more
crucially important areas of landlord-tenant law. Even
more important, The California Landlord’s Law Book:
Rights & Responsibilities provides a good overview of
your duties as a landlord so that you can minimize the
need to evict tenants as much as possible, or at least
know in advance whether you’re vulnerable to any of
the commonly used tenant defenses.
Some material is necessarily repeated here and
discussed in the eviction context. For example,
information on three-day notices is important for
both rent collection and for eviction. For the most part,
however, this volume makes extensive references to The
California Landlord’s Law Book: Rights & Responsibilities
for detailed discussions of substantive law instead of
repeating them.
Now let’s take a minute to get an overview of how
this volume works. Chapters 2 through 5 explain the
legal grounds for eviction. This entire lists looks like this:
The tenant has failed to leave or pay the rent due
within three days of having received from you
a written Three-Day Notice to Pay Rent or Quit
(Chapter 2).
A month-to-month tenant has failed to leave
within the time allowed after having received
from you a written notice giving 30 days, or 60
days if the tenant rented for a year or more, or 90
days (certain government-subsidized tenancies.)
(Chapter 3.)
The tenant has failed to leave or comply with a
provision of her lease or rental agreement within
three days after having received your written
three-day notice to correct the violation or quit
(Chapter 4).
The tenant has sublet the property contrary to the
lease or rental agreement, has caused or allowed
a nuisance or serious damage to the property, or
has used the property for an illegal purpose, and
has failed to leave within three days of having
received from you an unconditional three-day
notice to vacate (Chapter 4).
A tenant whose fixed-term lease has expired
and has not been renewed has failed to leave
(Chapter 5).
CHAPTER 1: EVICTIONS IN CALIFORNIA: AN OVERVIEW 9
A month-to-month tenant has failed to leave
within the stated time after having given you a
written 30-day or 60-day notice terminating the
tenancy (Chapter 5).
After the tenancy is terminated (in almost all cases,
by a three-day or other notice), most of the procedures
in unlawful detainer lawsuits are the same no matter
which reason your suit is based on. Thus, after you
read either Chapter 2, 3, 4, or 5, depending on the way
you’re terminating the tenancy, go next to the chapters
that explain the court procedures. These begin with
Chapter 6 on filing a complaint to begin your unlawful
detainer lawsuit.
If your tenant doesn’t contest the lawsuit within five
days after being served with a copy of your complaint,
you will go next to Chapter 7 on getting an eviction
judgment by default.
If the tenant does contest your unlawful detainer
suit, you will proceed directly to Chapter 8, which tells
you how to handle contested actions and when the
services of a lawyer are advisable. Chapter 10 discusses
your options when a tenant files for bankruptcy.
Chapter 9, on collecting your money judgment, will
be your last stop after you win the lawsuit.
The whole eviction process typically takes from one
to two months.
If you live in a city with a rent control ordinance, you
will be referred to Appendix 1 from time to time for
more detailed information on your locality’s ordinance.
Here are two examples of common pathways
through this book:
EXAMPLE: A tenant in your Los Angeles apartment
building, Roy, doesn’t pay the rent when it’s due
on the first of the month. A few days pass, and you
decide he’s probably never going to pay it. You turn
to Chapter 2 on nonpayment of rent. Following the
instructions, you serve Roy with a three-day notice
to pay rent or quit (after checking Appendix 1 in
this book and a copy of the current Los Angeles
rent control ordinance to see if there are any
special requirements you should know about).
Roy neither pays the rent nor moves in three
days. You then turn to Chapter 6, which tells you
how to begin an unlawful detainer suit by filing
a complaint with the court and serving a copy of
the complaint and a summons on the tenant. Roy
does not respond to your complaint in five days,
and Chapter 6 steers you to Chapter 7 on how to
get a default judgment. You are entitled to a default
judgment when the other side does not do the things
necessary to contest a case. After you successfully
use Chapter 7 to take default judgments both for
possession of the premises and the money Roy
owes you, your final step is to turn to Chapter 9 for
advice on how to collect the money.
EXAMPLE: You decide that you want to move a new
tenant into the house you rent out in Sacramento.
The current tenant, Maria, occupies the house
under a month-to-month rental agreement. She
pays her rent on time, and you’ve never had any
serious problems with her, but you would rather
have your friend Jim live there. You turn to Chapter
3 and follow the instructions to prepare and serve a
notice terminating Maria’s tenancy—a 60-day notice
because she’s lived there more than a year. Maria
doesn’t leave after her 60 days are up, so you go
to Chapter 6 for instructions on how to file your
unlawful detainer suit. After you serve her with
the summons and complaint, Maria files a written
response with the court. You then go to Chapter 8
to read about contested lawsuits.
10 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Valuable Resources
You should have ready access to current
editions of the California Civil Code and the
California Code of Civil Procedure. Although we
often refer to and explain the relevant code sections,
there are times when you will want to look at the
entire statute. These resources are available at most
public and all law libraries. You can also order the
paperback versions from Nolo. To read California
statutes online, see the website maintained by the
Legislative Counsel at www.leginfo.ca.gov. Chapter
8 of The California Landlords Law Book: Rights
& Responsibilities shows you how to find and use
statutes and other legal resources if you want to do
more research on a particular subject.
To go further, we recommend Legal Research:
How to Find & Understand the Law, by Stephen
Elias and Susan Levinkind (Nolo), which gives easy-
to-use, step-by-step instructions on how to find legal
information. (See order information at the back of
this book.)
Abbreviations Used in This Book
We use these standard abbreviations throughout this
book for important statutes and court cases covering
evictions.
California Codes
Bus. & Prof. Business & Professions
Civ. Code Civil
C.C.P. Civil Procedure
Evid. Evidence
Gov’t. Government
H. & S. Health and Safety
Federal Laws
C.F.R. Code of Federal Regulations
U.S.C. United States Code
Cases
Cal. App. California Court of Appeal
Cal. California Supreme Court
F. Supp. Federal District Court
F.2d or F.3d Federal Court of Appeals
U.S. United States Supreme Court
Icons Used in This Book
Caution. This icon alerts you to potential
problems.
See an Expert. This icon lets you know when
you need the advice of an attorney or other
expert.
Fast Track. This icon lets you know when
you can skip information that may not be
relevant to your situation.
Recommended Reading. This icon refers you
to other books or resources.
Rent Control. This icon indicates special
considerations for rent control cities.
Tip. This icon alerts you to a practical tip or
good idea.
Tear-out Forms and CD-ROM. This icon tells
you that the form referred to in the text can
be found as a tear-out in Appendix 3 and on the CD-
ROM that is included with this book. Instructions
for opening and using the CD are in Appendix 2.
Eviction for Nonpayment of Rent
Overview of the Process ............................................................................................. 12
Checklist for Uncontested Three-Day Notice Eviction ............................................ 12
Preparing the Three-Day Notice to Pay Rent or Quit .................................................... 12
Requirements of a Three-Day Notice ...................................................................... 12
How to Determine the Amount of Rent Due .......................................................... 14
Special Rules for Rent Control Cities ...................................................................... 15
How to Fill Out a Three-Day Notice ....................................................................... 17
Serving the Three-Day Notice on the Tenant ................................................................ 18
When to Serve the Notice ...................................................................................... 20
If You Routinely Accept Late Rent ........................................................................... 20
Who Should Serve the Three-Day Notice ............................................................... 21
Who Should Receive the Notice ............................................................................ 21
How to Serve the Three-Day Notice on the Tenant ................................................. 22
After the Three-Day Notice Is Served ........................................................................... 23
The Tenant Stays ..................................................................................................... 23
The Tenant Moves Out ........................................................................................... 23
When to File Your Lawsuit ........................................................................................... 24
C H A P T E R
2
12 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
A
pproximately nine out of ten unlawful
detainer lawsuits are brought because of
the tenant’s failure to pay rent when due.
Although you don’t want to sue your tenants every
time they’re 20 minutes late with the rent, obviously
it’s unwise to let a tenant get very far behind. You have
to use your own best judgment to decide how long to
wait.
Once you’ve decided that your tenants either can’t
or won’t pay the rent within a reasonable time (or move
out), you will want to evict them as fast as possible. As
we stressed in the previous chapter, the only legal way
to do this is with an “unlawful detainer” lawsuit. This
chapter shows you how to do this step by step.
Overview of the Process
Before you can file an unlawful detainer lawsuit against
a tenant, the law requires that you terminate the tenancy.
To properly terminate a tenancy for nonpayment of rent,
you must give the tenant three days’ written notice
using a form called a Three-Day Notice to Pay Rent or
Quit. This is normally referred to as a three-day notice.
If within three days after you properly serve the
tenant with this notice (you don’t count the first day)
she offers you the entire rent demanded, the termination
is ineffective and the tenant can legally stay. If, however,
the tenant neither pays nor moves by the end of the third
day (assuming the third day doesn’t fall on a Saturday,
Sunday, or holiday), you can begin your lawsuit.
You do not have to accept payment offered after
the end of the third day (unless it falls on a Saturday,
Sunday, or holiday, in which case the tenant has until
the end of the next business day to pay up). If you do
accept the rent, you no longer have the right to evict
the tenant based on the three-day notice.
EXAMPLE: Tillie’s lease requires her to pay $600
rent to her landlord, Lenny, on the first day of each
month in advance. Tillie fails to pay November’s
rent on November 1. By November 9, it’s evident
to Lenny that Tillie has no intention of paying the
rent, so he serves her with a Three-Day Notice to
Pay Rent or Quit following the instructions set out
below. The day the notice is given doesn’t count,
and Tillie has three days, starting on the 10th, to
pay. Tillie doesn’t pay the rent on the 10th, 11th, or
12th. However, since the 12th is a Saturday, Tillie
is not legally required to pay until the close of the
next business day, which is November 15 (because
November 13 is a Sunday and the 14th is a holiday—
Veteran’s Day). In other words, Lenny cannot bring
his lawsuit until November 16.
Lenny will be very lucky if he can get Tillie out
by the end of the month, partly because he waited
so long before giving her the three-day notice. If
Lenny had given Tillie the notice on November 4,
the third day after that would have been November
7. Lenny could have filed his suit on the 8th and
gotten Tillie out a week sooner.
Checklist for Uncontested Three-Day
Notice Eviction
Here are the steps involved in evicting on the grounds
covered in this chapter, if the tenant defaults. We cover
some of the subjects (for example, filing a complaint
and default judgments) in later chapters. As you work
your way through the book you may want to return to
this chart to see where you are in the process.
Preparing the Three-Day Notice to Pay
Rent or Quit
Pay very close attention to the formalities of preparing
and giving the notice. Any mistake in the notice,
however slight, may give your tenant (or her attorney)
an excuse to contest the eviction lawsuit. At worst,
a mistake in the three-day notice may render your
unlawful detainer lawsuit “fatally defective”—which
means you not only lose, but very likely will have to
pay the tenant’s court costs and attorney’s fees if she is
represented by a lawyer, and will have to start all over
again with a correct three-day notice.
Requirements of a Three-Day Notice
In addition to stating the correct amount of past due
rent and the dates for which it is due (see the next
section), your three-day notice must contain all of the
following:
CHAPTER 2: EVICTION FOR NONPAYMENT OF RENT 13
Checklist for Uncontested Three-Day Notice Eviction
Step Earliest Time to Do It
1. Prepare the Summons (or Summonses, if there is more
than one tenant) and Complaint and make copies.
(Chapter 6)
Any day after the rent is due—for example, on or after
the second of the month when the rent is due on the
rst. (If rent due date falls on Saturday, Sunday, or
holiday, it’s due the next business day.)
2.
Prepare and serve the three-day notice on the tenant.
Late in the third day after service of the three-day notice.
3. File the Complaint at the courthouse and have the
Summons(es) issued. (Chapter 6)
The fourth day after service of the three-day notice, or,
if the third day after service falls on a Saturday, Sunday,
or holiday, the second business day after that third day.
4. Have the sheriff, the marshal, or a friend serve the
Summons and Complaint. (Chapter 6)
As soon as possible after fi ling the Complaint and
having the Summons(es) issued.
5. Prepare Request for Entry of Default, Judgment,
Declaration, and Writ of Possession. (Chapter 7)
While youre waiting for fi ve-day (or 15-day, if Complaint
not personally served) response time to pass.
6. Call the court to fi nd out whether or not tenant(s) has
led written response.
Just before closing on the fi fth day after service of
Summons, or early on the sixth day. (Do not count
holidays that fall on weekdays, however. Also, if fi fth
day after service falls on weekend, or holiday, count
the fi rst business day after that as the fi fth day.)
7. Mail copy of Request for Entry of Default to tenant(s),
le original at courthouse. Also fi le Declaration and
Proof of Service, and have clerk issue Judgment and
Writ for Possession for the property. (Chapter 7)
Sixth day after service of Summons and Complaint.
(Again, count fi rst business day after fi fth day that falls
on weekend or holiday.)
8. Prepare letter of instruction for, and give writ and
copies to, sheriff, or marshal. (Chapter 7)
As soon as possible after above step. Sheriff or marshal
won’t evict for at least fi ve days after posting notice.
9. Change locks after tenant vacates. As soon as possible.
For Money Judgment
10. Prepare Request for Entry of Default, Judgment, and, if
allowed by local rule, Declaration in Support of Default
Judgment (or a Declaration in Lieu of Testimony).
(Chapter 7)
As soon as possible after property is vacant.
11. Mail Request for Entry of Default copy to tenant, fi le
request at courthouse. If Declaration in Lieu of Testimony
allowed, fi le that too, and give clerk judgment and
writ forms for money part of judgment. If testimony
required, ask clerk for default hearing. (Chapter 7)
As soon as possible after above.
12. If testimony required, attend default hearing before
judge, testify, and turn in your judgment form for entry
of money judgment. (Chapter 7)
When scheduled by court clerk.
13. Apply security deposit to cleaning and repair of property,
and to any rent not accounted for in judgment, then
apply balance to judgment amount. Notify tenant in
writing of deductions, keeping a copy. Refund any
balance remaining. If deposit does not cover entire
judgment, collect balance of judgment. (Chapter 9)
As soon as possible after default hearing. Deposit
must be accounted for within three weeks of when the
tenants vacate.
14 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Your tenant(s)’s name(s).
A description of the property: street address and
apartment or unit number, city, county, and state.
A demand that the tenant(s) pay the stated amount
of rent due within three days or move. If you
just demand the rent and do not set out the
alternative of leaving, your notice is fatally defec-
tive.
A statement that you will pursue legal action (or
declare the lease/rental agreement “forfeited”)
if the tenant does not pay the entire rent due or
move.
Information on to whom, where, and how the
rent is to be paid.
An indication—such as a signature by you, your
manager, or other person you authorize to sign
three-day notices—that the notice is from you.
You don’t need to date the notice, but it doesn’t
hurt.
Some rent control ordinances require three-day
notices to pay rent or quit to contain special
warnings. Check Appendix 1 and your ordinance if your
property is subject to rent control.
How to Determine the Amount of Rent Due
It’s essential that you ask for the correct amount of rent
in your three-day notice. That may seem easy, but a
demand for an improper amount is the most common
defect in a three-day notice. If, at trial, the court finds
that the rent due at the time the three-day notice was
served was less than the amount demanded in the
notice (in other words, the notice overstated the rent),
you will lose the lawsuit. (See Ernst Enterprises, Inc. v.
Sun Valley Gasoline, Inc. (1983) 139 Cal. App. 3d 355
and Nouratchan v. Miner (1985) 169 Cal. App. 3d 746.)
To calculate the correct amount, follow these rules.
Rule 1: Never demand anything in a Three-Day
Notice to Pay Rent or Quit other than the amount of
the past due rent. Do not include late charges, check-
bounce or other fees of any kind, interest, utility charges,
or anything else, even if a written lease or rental
agreement says you’re entitled to them.
Does this mean that you cannot legally collect these
charges? No. It simply means you can’t legally include
them in the Three-Day Notice to Pay Rent or Quit or
recover them in an unlawful detainer lawsuit. You can
deduct these amounts from the security deposit or
sue for them later in small claims court. (See Chapter
20 of The California Landlord’s Law Book: Rights &
Responsibilities.) You can evict a tenant for failure to
pay legitimate utility or other nonrent charges, even
though you can’t recover or ask for those charges in an
unlawful detainer lawsuit. (See “Using the Three-Day
Notice to Perform Covenant or Quit” in Chapter 4.)
Rule 2: Assuming the rent is due once a month and
the tenant simply does not pay the rent for the month,
you are entitled to ask for the full month’s rent in your
notice. The amount of rent due is not based on the
date the three-day notice is served, but on the whole
rental period. Thus, if rent is due in advance the first of
every month, and you serve a three-day notice on the
5th, you should ask for the whole month’s rent—that’s
what’s overdue.
Rule 3: If the tenancy is already scheduled to
terminate because you have given a 30-day, 60-day,
or other notice to that effect, you must prorate the
rent due. For example, if the tenant’s $900 monthly
rent is due June 1, but you gave her a 30-day notice
about three weeks earlier, on May 10, the tenancy is
terminated effective June 10. Your three-day notice
served after June 1 should demand only $300, the rent
for June 1 through 10. Because this can get tricky, we
don’t recommend terminating a tenancy in the middle
of the month or other rental period. If you serve a
three-day notice after having served a 30-day or 60-
day notice, you risk confusing the tenant and losing an
unlawful detainer action. (See Chapter 3.)
Rule 4: To arrive at a daily rental amount, always
divide the monthly rent by 30 (do this even in 28-, 29-,
or 31-day months).
Rule 5: If the tenant has paid part of the rent due,
your demand for rent must reflect the partial payment.
For example, if the monthly rent is $800 and your
tenant has paid $200 of that amount, your three-day
notice must demand no more than the $600 balance
owed.
Rule 6: You do not have to credit any part of a
security deposit (even if you called it last month’s rent)
toward the amount of rent you ask for in the three-day
notice. In other words, you have a right to wait until
the tenant has moved, to see if you should apply the
deposit to cover any necessary damages or cleaning.
(See Volume 1, Chapter 5.) Even if you called the
CHAPTER 2: EVICTION FOR NONPAYMENT OF RENT 15
money “last month’s rent,” the tenant is entitled to have
this credited—before termination of the tenancy—only
if and when he has properly terminated the tenancy
with a 30-day or 60-day notice, or has actually moved
out.
Here are a few examples of how rent should be
calculated for purposes of a three-day notice.
EXAMPLE: Tom has been paying $1,000 rent to
Loretta on the first of each month, as provided by
a written rental agreement. On October 6, Tom still
hasn’t paid his rent, and Loretta serves him with a
three-day notice to pay the $1,000 or leave. (Loretta
has, in effect, given Tom a five-day grace period;
she could have given him the notice on October 2.)
Even though the rental agreement provides for a
$10 late charge after the second day, Loretta should
not list that amount in the three-day notice.
EXAMPLE: Teresa’s rent of $900 is due the 15th of
each month for the period of the 15th through the
14th of the next month. Teresa’s check for the period
from October 15 through November 14 bounced,
but Linda, her landlord, doesn’t discover this until
November 15. Now Teresa not only refuses to
make good on the check, but also refuses to pay
the rent due for November 15 through December
14. It’s now November 20. Teresa owes Linda
$1,800 for the two-month period of October 15
December 14, and that’s what the notice should
demand. Linda should not add check-bouncing
charges or late fees to the amount. And even
though Teresa promises to leave “in a few days,”
rent for the entire period of October 15 through
December 14 is already past due, and Linda has the
right to demand it.
EXAMPLE: Terri and her landlord, Leo, agree in
writing that Terri will move out on July 20. Terri’s
$900 rent is due the first of each month, in advance
for the entire month. Terri will only owe rent for
the first 20 days of July, due on the first day of that
month. If Terri doesn’t pay up on July 1, the three-
day notice Leo should serve her shortly thereafter
should demand this 20 days’ rent, or 1/30th of the
monthly rent ($900/30 = $30/day) for each of the
20 days, a total of $600.
EXAMPLE: Tony pays $950 rent on the first of each
month under a one-year lease that expires July 31.
On June 30, he confirms to his landlord, Lana, that
he’ll be leaving at the end of July, and he asks her
to consider his $1,000 security deposit as the last
month’s rent for July. Lana has no obligation to let
Tony do this, and can serve him a three-day notice
demanding July’s rent of $950 on July 2, the day
after it’s due. As a practical matter, however, Lana
might be wiser to ask Tony for permission to inspect
the property to see if it’s in good enough condition
to justify the eventual return of the security deposit.
If so, there’s little to be gained by giving Tony a
three-day notice and suing for unpaid rent, since
by the time the case gets before a judge, Lana
will have to return the security deposit. (This
must be done within 21 days after Tony leaves.
See The California Landlord’s Law Book: Rights &
Responsibilities, Chapter 20.)
Special Rules for Rent Control Cities
You can’t evict a tenant for refusal to pay a rent
increase that was illegal under a rent control ordinance,
even if the tenant also refuses to pay the part of the
rent that is legal under the ordinance.
EXAMPLE: Owsley rents out his Santa Monica two-
bedroom apartments for a reasonable $650 per
month. After a year of renting to Tina on a month-
to-month basis, Owsley gave Tina a notice raising
the rent to $750. When Tina refused to pay the
increase, Owsley served her with a three-day notice
demanding that she pay the additional $100 or
move. Unfortunately for Owsley, Santa Monica’s
rent control board allowed only a 7% increase that
year, so that the most Owsley can legally charge is
$695. Since the three-day notice demanded more
rent than was legally due (under the rent control
ordinance), Tina will win any lawsuit based on the
three-day notice.
EXAMPLE: Suppose Tina refused to pay any rent at
all, in protest of the increase. Tina does owe Owsley
the old and legal rent of $650. But since Owsley’s
three-day notice demanded $750, more rent than
was legally due, the notice is defective. Owsley will
lose any eviction lawsuit based on this defective
16 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
notice, even though Tina refuses to pay even the
legal portion of the rent, because the three-day
notice must precisely demand the correct rent.
A three-day notice is also defective under a rent
control ordinance if the landlord at any time collected
rents in excess of those allowed under the ordinance
and failed to credit the tenant with the overcharges,
even though she now charges the correct rent and
seeks to evict based only on nonpayment of the legal
rent. Since the previously collected excess rents must
be credited against unpaid legal rent, any three-day
notice that doesn’t give the tenant credit for previous
overcharges is legally ineffective because it demands
too much rent.
EXAMPLE: Lois rented the apartments in her Los
Angeles building for $700 a month. In April, she
served Taylor with a notice increasing the rent
to $800, effective May 1. Taylor paid the increase
(without complaint) in May and June. In July, when
Taylor was unable to pay any rent at all, Lois
learned, after checking with the Rent Adjustment
Commission, that the maximum legal rent was
$721. She therefore served Taylor with a three-day
notice demanding this amount as the rent for July.
After filing an unlawful detainer complaint based
on the nonpayment of this amount, Lois lost the
case and had to pay Taylor’s court costs and
attorney’s fees. Why? First, since her rent increase
notice had demanded an illegally high rent, it
was void. The legal rent therefore was still $700.
Second, in May and June, Lois collected a total of
$200 more than that legal rent, which had to be
credited against the $700 Taylor did owe. Taylor
therefore owed only $500. Since Lois’ three-day
notice demanded more than this, it was ineffective.
Some rent control ordinances impose special
requirements on rent increase notices. Under state law
for month-to-month tenancies, all that’s required is a
written, notice of 30 days (60 days for a rent increase
of 10% or more over 12 months) that clearly states
the address of the property and the new rent—see
Chapter 14 of The California Landlord’s Law Book:
Rights & Responsibilities. Quite a few rent-controlled
cities require rent increase notices to list a justification
or itemization of rent increases and other information.
A rent increase notice that fails to comply with all
requirements imposed by both state and local law is
of no effect. Therefore, any later Three-Day Notice to
Pay Rent or Quit based on the tenant’s failure to pay
the increased amount is void because, by definition, it
demands payment of more rent than is legally owed,
either by asking for the increased rent or by failing to
credit previous “excess” payments. In short, a landlord
will lose any eviction lawsuit based on this sort of
defective notice.
EXAMPLE: When Opal raised the rent on her
Beverly Hills apartment unit from $700 to $775,
an increase allowed under that city’s rent control
ordinance, she thought everything was okay. When
she prepared her 60-day rent increase notice,
however, she forgot about the part of the ordinance
requiring a landlord to justify and itemize the rent
increase and state in the notice that her records
were open to inspection by the tenant. Opal
collected the $775 rent for three months. The next
month, when her tenant Renee failed to pay rent,
Opal served her with a three-day notice demanding
$775. When the case got to court, the judge told
Opal her rent increase notice hadn’t complied with
city requirements and was ineffective, leaving the
legal rent at $700. Since Renee had paid the extra
$75 for three months, she was entitled to a $225
credit against this amount, so that she owed $475.
Since Opal’s three-day notice demanded $775, it
too was ineffective, and Renee won the eviction
lawsuit.
These problems occur most often in cities with
“moderate” to “strict” rent control ordinances, which
set fixed rents that a landlord cannot legally exceed
without board permission. (See The California Landlord’s
Law Book: Rights & Responsibilities, Chapter 4.) To
remind you, moderate to strict rent control cities include
Berkeley, Santa Monica, Palm Springs, East Palo Alto,
Thousand Oaks, West Hollywood, Los Angeles, San
Francisco, and Beverly Hills.
These problems are far less likely to occur in cities
with “mild” rent control, including Oakland, San Jose,
Hayward, and Los Gatos, where if the tenant fails to
contest a rent increase, the increase is usually considered
legally valid. Even if the tenant does contest the increase
CHAPTER 2: EVICTION FOR NONPAYMENT OF RENT 17
in these “mild” cities, the proper legal rent will be
quickly decided by a hearing officer, making it less
likely the landlord will be caught by surprise later if she
has to evict for nonpayment of rent.
The moral of all this is simple: Pay close attention
to any rent control ordinance in the city in which your
property is located. Ask yourself the following questions:
Have you owned the premises at all times when
the tenant was living there?
If not, did the previous owner fully comply with
your rent control law?
If so, have you fully complied with the notice
requirements for rent increases and charged the
correct rent?
If your answer is “no” to either of the last two
questions, your tenant may be due a refund before you
can evict for nonpayment of rent.
If your answer to these questions is “yes,” have you
fully complied with all other provisions of the rent
control ordinance? If so, you are probably in a position
to legally evict the tenant for nonpayment of rent.
Good-Faith Mistakes
Cities that require registration of rents (Berkeley,
Santa Monica, East Palo Alto, Los Angeles, Palm
Springs, Thousand Oaks, and West Hollywood)
must limit the sanctions against landlords who make
good-faith mistakes in the calculation of rents. (Civ.
Code § 1947.7.)
How to Fill Out a Three-Day Notice
A sample Three-Day Notice to Pay Rent or Quit and
instructions for filling it out appear below. A blank
tear-out form is included in the forms section in the
back of this book. You may tear out the form or use a
photocopy. We recommend using a photocopy, because
you will probably use this form more than once.
Appendix 3 contains a tear-out Three-Day Notice to
Pay Rent or Quit. The CD-ROM that accompanies
this book also includes this form. Instructions for using the
CD and a list of file names are in Appendix 2.
Sign Pay or Quit Notices Yourself
A pay or quit notice signed by your lawyer may
trigger the Fair Debt Collection Practices Act. This
Act (15 U.S.C. §§ 1692 and following) governs debt
collectors and requires, among other things, that
debtors be given 30 days in which to respond to
a demand for payment. A federal appellate court
in New York has ruled that when an attorney signs
a pay or quit notice, he or she is acting as a debt
collector. Consequently, the tenant must have 30
days to pay or quit, regardless of the state’s three-
day provision. (Romea v. Heiberger 163 F.3d 111
(2d Cir. 1998).)
Although this ruling applies only to New
York landlords, there is no reason why a tenant in
California could not bring an identical lawsuit.
To date, we are aware of none. To easily protect
yourself (or avoid the dubious honor of being the
test case), tell your lawyer that you want to sign pay
or quit notices yourself.
Step 1: Fill In the Tenant’s Name
The first blank is for the name(s) of the tenant(s) to
whom the three-day notice is addressed. This normally
should include the tenant(s) whose name(s) is (are)
listed on a written lease or rental agreement, or with
whom you orally entered into a rental agreement, plus
the names, if known, of any other adult occupants of
the property.
The California Supreme Court has ruled that in
order to evict an adult who claims to be a tenant but
is not on the lease or rental agreement, the landlord
must provide the person with notice of the unlawful
detainer action and an opportunity to be heard. This
usually means naming the person as a defendant in
the suit. For example, if a married couple occupies an
apartment but only the husband signed the lease, the
landlord must still name both the husband and wife as
defendants. Although this rule technically only applies
to unlawful detainer complaints (see Chapter 6), not
necessarily to the three-day notice, it’s still a good idea
to follow it here as well and name all adult occupants
in the notice. (C.C.P. § 1174.25; Arrieta v. Mahon (1982)
31 Cal. 3d 381, 182 Cal. Rptr. 770.)
18 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Step 2: Fill In the Address
The next spaces are for the address of the premises.
Include the street address, city and county, and
apartment number if your tenant lives in an apartment
or condominium unit.
In the unlikely event the unit has no street address,
use the legal description of the premises from
your deed to the property, along with an ordinary
understandable description of where the place is
located (for example, “the small log cabin behind
the first gas station going north on River Road from
Pokeyville”). You can retype the notice to make room
for the legal description or staple a separate property
description as an attachment to the notice and type “the
property described in the attachment to this notice” in
place of the address.
Step 3: Fill In the Rent Due
The next space is for the amount of rent due and the
dates for which it is due. You must state this figure
accurately. (See “How to Determine the Amount of
Rent Due,” above.)
Step 4. Fill In Payment Information
The next spaces tell the tenant to whom, where, and
how to pay the rent, as follows.
Under “RENT IS TO BE PAID TO,” check the box
next to “the undersigned” if the person who signs the
notice (such as the manager or owner) will receive the
rent. If someone else will receive the rent, check the
box next to “the following” and list the name of that
person.
Under “AT THE FOLLOWING ADDRESS,” give the
address where the rent should be paid (do not list a
post office box unless you want the rent to be mailed
to one). Give the telephone number of the person who
will accept the rent.
Under “IN THE FOLLOWING MANNER,” check one
or more boxes indicating how the rent will be accepted.
If you check “in person,” be sure to list the days and
hours when someone will be present to accept the rent.
For example, the office hours for a resident manager
might be “Monday through Friday, 9:00 AM through
5:00 PM.” If you check “by mail …” only, rent is legally
paid when mailed, regardless of when you receive it.
Do not omit any information on your three-day
notice. Failure to include all of the information
called for on the form may make the notice legally
ineffective. If your tenant refuses to move and you attempt
to evict on the basis of a legally defective three-day notice,
you’ll be tossed out of court and will have to begin all over,
with a new three-day notice.
Step 5: Sign and Date the Notice and
Make Copies
The “ultimatum” language—that the tenant either pay
the rent within three days or move out, or you’ll bring
legal action—and the “forfeiture” language are already
included in our printed form. All you need to add are
your signature and the date you signed it. The date is
not legally required, but it helps to clarify when the
rent was demanded. This date must not be the same
day the rent was due, but at least one day later.
Be sure to make several photocopies for your records;
the original goes to the tenant. If you serve a notice on
more than one tenant (see the next section), you can
give the others copies.
Step 6: Complete the Proof of Service Box on
Your Copy
At the bottom of the Three-Day Notice to Pay Rent or
Quit is a “Proof of Service,” which indicates the name
of the person served, the manner of service, and the
date(s) of service. You or whoever served the notice
on the tenant should fill out the Proof of Service on
your copy of the three-day notice and sign it. You do
not fill out the Proof of Service on the original notice
that is given to the tenant. If more than one person is
served with the notice, there should be a separate Proof
of Service (on a copy of the notice) for each person
served. Save the filled-out Proof(s) of Service—you’ll
need this information when you fill out the Complaint
and other eviction forms.
Serving the Three-Day Notice
on the Tenant
The law is very strict about when and how the Three-
Day Notice to Pay Rent or Quit must be given to (“served
on”) your tenant(s). Even a slight departure from the
rules may cause the loss of your unlawful detainer
CHAPTER 2: EVICTION FOR NONPAYMENT OF RENT 19
123 Market Street, Apartment 4
Three-Day Notice to Pay Rent or Quit
To: ,
(name)
Tenant(s) in possession of the premises at ,
(street address)
City of , County of , California.
Please take notice that the rent on these premises occupied by you, in the amount of $ , for the period
from to , is now due and payable.
YOU ARE HEREBY REQUIRED to pay this amount within THREE (3) days from the date of service on you of this notice or to
vacate and surrender possession of the premises. In the event you fail to do so, legal proceedings will be instituted against you
to recover possession of the premises, declare the forfeiture of the rental agreement or lease under which you occupy the
premises, and recover rents, damages, and costs of suit.
RENT IS TO BE PAID TO:
the undersigned, or
the following person:
AT THE FOLLOWING ADDRESS:
, California, phone: ( ) ;
IN THE FOLLOWING MANNER:
In person. Usual days and hours for rent collection are:
by mail to the person and address indicated above
by deposit to account at , a financial institution
located within 5 miles of your rental at , California
by electronic funds transfer procedure previously established.
Date:
Owner/Manager
Proof of Service
I, the undersigned, being at least 18 years of age, served this notice, of which this is a true copy, on ,
, one of the occupants listed above as follows:
On , , I delivered the notice to the occupant personally.
On , , I delivered the notice to a person of suitable age and discretion at the
occupant’s residence/business after having attempted personal service at the occupant’s residence, and business, if known. On
, , I mailed a second copy to the occupant at his or her residence.
On , , I posted the notice in a conspicuous place on the property, after having
attempted personal service at the occupant’s residence, and business, if known, and after having been unable to find there a
person of suitable age and discretion. On , , I mailed a second copy to the occupant
at the property.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
Signature
Tyrone Tenant
San Diego San Diego
June 1, 20xx June 30, 20xx
400
June 5, 20xx Lou Landlord
X
X
123 Maple Street, La Mesa
619 123-4567
3 p.m. to 8 p.m. Monday through Saturday
20 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
lawsuit if it is contested. As ever, if your property is
covered by a local rent control ordinance, be sure to
check for any special requirements, such as mandatory
language to be included in the notice, before using the
forms in this book.
When to Serve the Notice
The three-day notice can be given to your tenant any
day after the rent is due, but not on the day it is due.
For example, if the rent is due on the first day of each
month, a notice given to the tenant on that day has no
legal effect. If the due date falls on a Saturday, Sunday,
or holiday, rent is still due on that day, unless your
lease or rental agreement specifies that it will be due on
the next business day. The three-day notice cannot be
given until the day after that.
EXAMPLE: Tyson pays monthly rent, due in advance
on the first of each month. If the first falls on a
Monday holiday, and since Tyson’s lease states that
rent is due on the next business day when the date
falls on a Saturday, Sunday, or holiday, Tyson’s rent
is not legally due until Tuesday. This means the
three-day notice cannot be served until Wednesday.
This is one of the many technicalities of eviction law
that can haunt an unlawful detainer action from the
very beginning. Bizarre as it sounds, if you give the
notice only a day prematurely, and the tenant still doesn’t
pay the rent during the two to three weeks he contests
the lawsuit, you may still lose the case if the tenant
spots your mistake.
EXAMPLE: When Tiffany didn’t pay her $400 rent to
Leslie on Friday, January 1, Leslie prepared a Three-
Day Notice to Pay Rent or Quit, giving it to Tiffany
the next day. Unfortunately for Leslie, she forgot
that her lease included a clause that specified that
when the rent due date falls on a Saturday, Sunday,
or holiday, the rent would be due on the next
business day. Therefore, the rent wasn’t actually
due until January 4, even though Tiffany’s lease
said it was due on the first, because January 1, New
Year’s Day, was a legal holiday; January 2 was a
Saturday; and January 3 was a Sunday. Oblivious to
all this, Leslie waited the three days, and, as Tiffany
still hadn’t paid the rent, Leslie filed her unlawful
detainer suit on January 6. Tiffany contested it,
and the case finally went to court on February 5.
Even though Tiffany clearly owed Leslie the rent
for January and February, Leslie lost the lawsuit
because she gave Tiffany the three-day notice
before the rent was legally past due. Now Leslie
will have to pay Tiffany’s court costs as well as her
own. Assuming Tiffany has still not paid the rent,
Leslie can, of course, serve a new three-day notice
and begin the eviction procedure again, poorer but
wiser.
In LaManna v. Vognar (1993) 4 Cal. App. 4th Supp.
4, 22 Cal. Rptr. 2d 501, a landlord lost a case for the
same reason illustrated in the example above. The
three-day notice was served on a Wednesday. The
third day after that was a Saturday. The tenant had
until the end of the following Tuesday to pay the rent
because Saturday and Sunday were not business days
and Monday was a legal holiday, Memorial Day. The
landlord could not legally file the eviction lawsuit until
Wednesday. Unfortunately, he filed one day early, on
Tuesday, and lost the case as a result.
If You Routinely Accept Late Rent
There is no law that gives tenants a five-day or any
other grace period when it comes to paying the rent.
If, however, you regularly allow your tenant to pay
rent several days or even weeks late, you may have
problems evicting the tenant. If your three-day notice
demands the rent sooner than the tenant is accustomed
to paying it, the tenant might be able to successfully
defend an eviction based on that three-day notice.
EXAMPLE: You routinely allowed the tenant to pay
by the fifth of the month, even though the rental
agreement states that the rent is due on the first. If
you now serve a notice on the second or third day
of the month, the tenant may be able to convince a
judge that you served the notice too early.
This is called an “estoppel defense” in legalese.
This means that one person (you) who consistently
fails to insist on strict compliance with the terms of
an agreement (in this case, prepayment of rent on
time) may be prevented or stopped (“estopped”) from
insisting on strict compliance at a later time.
CHAPTER 2: EVICTION FOR NONPAYMENT OF RENT 21
To avoid problems, wait until after any traditional
grace period (that is, one that you’ve given regularly
in the past) has expired before serving the three-day
notice. Or, if the tenancy is one from month to month,
and the rental agreement requires that rent be paid on
the first of the month, you can reinstate the original
payment terms with a 30-day written notice. Doing so
allows you to insist that rent be paid on the first of the
month, regardless of past custom. (See The California
Landlord’s Law Book: Rights & Responsibilities, Chapter
3, for more information on and Sample Notice of
Reinstatement of Terms of Tenancy.)
Grace periods. Rent is due on a certain day under
many rental agreements (usually on the first of the
month), but late charges aren’t usually imposed until
several days later. Even so, the rent is still “due” on the
date the rental agreement or lease says it’s due, and
the Three-day Notice to Pay Rent or Quit can be served
the day after that (taking into account extension of the
due date by Saturdays, Sundays, and holidays). Any
so-called grace period, after which late charges kick
in, has no effect on when the three-day notice can be
served.
EXAMPLE: Under the lease between Tom Tenant
and Lisa Landlady, Tom’s $900 rent is due on the
first day of each month, with a $25 late charge if
paid after the 5th. Despite this so-called five-day
grace period, the three-day notice can be served on
the day after the first of the month, assuming the
first doesn’t fall on a Saturday, Sunday, or holiday.
Despite the above, it generally isn’t a good idea
to serve a three-day notice before any late charge
comes due, for two reasons: First, if the rental agreement
or lease provides for a grace period and you never made
a habit of insisting on the rent before the late charge came
due, the tenant may be able to successfully defend against
the three-day notice if he or she was not accustomed to
paying it on time. (See “If You Routinely Accept Late Rent,
above.)
Second, it isn’t a good business practice to serve a
three-day notice right away. It breeds unnecessary tenant
resentment and, in effect, gives the tenant a three-day grace
period anyway.
Who Should Serve the Three-Day Notice
Anyone at least 18 years old (including you) can legally
give the three-day notice to the tenant. It’s often best
to have it served by someone else. That way, if the
tenant refuses to pay the rent and contests the resulting
eviction suit by falsely claiming he didn’t receive
the notice (this is rare), at trial you can present the
testimony of someone not a party to the lawsuit who is
more likely to be believed by a judge. Of course, you
must weigh this advantage against any time, trouble, or
expense it takes to get someone else to accomplish the
service and, if necessary, appear in court.
Who Should Receive the Notice
Ideally, each person named on the three-day notice
should be personally handed a copy of it. This isn’t
always possible, though, and under certain circum-
stances it isn’t necessary. If you rented your property
to just one tenant, whose name alone appears on any
written rental agreement or lease, serve that person
with the three-day notice. (However, as discussed
below in the next section, you can sometimes actually
give the notice to a co-occupant of the property who
isn’t listed on the lease if you can’t locate the tenant
who is listed on the lease.)
If you rented to two or more tenants whose names
are all on the lease or rental agreement, it is legally
sufficient to serve just one.
(University of Southern
California v. Weiss (1962) 208 Cal. App. 2d 759, 769,
25 Cal. Rptr. 475.) If your agreement is only with one
tenant and that tenant has a roommate who is not on
the agreement, the notice should be served on both.
(See Briggs v. Electronic Memories & Magnetics Corp.
(1975) 53 Cal. App. 3d 900.) We recommend doing this
to minimize the possibility that a nonserved tenant will
try to defend against any subsequent eviction lawsuit
on the ground that he didn’t receive the notice.
You normally have no obligation to serve the three-
day notice on occupants who are not named in the
written rental agreement or lease and with whom you’ve
had no dealings in renting the property.
(See Chinese
Hospital Foundation Fund v. Patterson (1969) 1 Cal.
App. 3d 627, 632, 8 Cal. Rptr. 795, and Four Seas Invest-
ment Corp. v. International Hotel Tenants Ass’n (1978)
81 Cal. App. 3d 604.) However, as discussed above, it’s
best to serve all adult occupants of the premises.
22 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
How to Serve the Three-Day Notice
on the Tenant
The law is very strict on how the three-day notice must
be served on the tenant. It is not enough that you mail
the notice or simply post it on the door. There are three
legal methods of service for a three-day notice.
Personal Service
The best method of service of a three-day notice is to
simply have someone over 18 hand your tenant the
notice.
If the tenant refuses to accept the notice, it is
sufficient to drop or lay it at his feet. It is unnecessary
and possibly illegal to force it on the tenant’s person. If
the tenant slams the door in your face before you can
leave it at her feet, or talks to you through the door
while refusing to open it, it’s okay to slide it under the
door or shout, “I’m leaving a notice on your doormat”
while doing so.
Handing the notice to any other person, such as
someone who lives with your tenant but is not listed
as a cotenant on the written rental agreement, is
not sufficient except as described just below under
“Substituted Service on Another Person.”
Substituted Service on Another Person
If the tenant to whom you’re attempting to give the
three-day notice never seems to be home, and you
know where she is employed, you should try to
personally serve her there. If you are unable to locate
the tenant at either place, the law allows you to use
“substituted service” in lieu of personally giving the
notice to the tenant. In order to serve the notice this
way, you must:
1. Make at least one attempt to personally serve the
tenant at her home, but not succeed and
2. Make one attempt to serve her with the notice at
work, but still not succeed, and
3. Leave the notice, preferably with an adult, at
the tenant’s home or workplace. (Although one
California court ruled that a 16-year-old boy (but
not a younger child) could be served a three-day
notice on behalf of the tenant, the ruling is not
binding on all California courts (Lehr v. Crosby
(1981) 123 Cal. App. 3d Supp.7), and
4. Mail a copy of the notice to the tenant at home
by ordinary first-class mail.
(C.C.P. § 1162(2).)
Ask for the name of the person with whom you
leave the notice; you’ll need to include it in the
complaint you’ll file to begin your lawsuit (Chapter 6).
If you can’t get a name, you can just put a description
of the person.
Accomplishing Substituted Service. Substituted
service of the notice is not completed, and the
three-day period specified in the notice does not start
running, until you have left the copy with the “substitute”
person and mailed the second copy to the tenant at home.
The first day of the notice’s three-day period is the day after
both these steps are accomplished.
EXAMPLE: Tad should have paid you his rent on
the first of the month. By the fifth, you’re ready to
serve him with a Three-Day Notice to Pay Rent or
Quit. When you try to personally serve it on him at
home, a somewhat hostile buddy of Tad’s answers the
door, saying he’s not home. Your next step is to try his
workplace—the one listed on the rental application he
filled out when he moved in. You go there only tond
that Tad called in sick that day. You can give the notice
to one of his coworkers or to his friend at home, with
instructions to give it to Tad when they see him. After
that, you must mail another copy of the notice to
Tad at home by ordinary first-class mail. Substituted
service is complete only after both steps have been
accomplished.
“Posting-and-Mailing” Service
If you can’t find the tenant or anyone else at her home
or work (or if you don’t know where she is employed),
you may serve the three-day notice through a proce-
dure known as “posting and mailing” (often referred to
as “nail-and-mail”). To serve the notice this way, you
must do the following, in the order indicated:
1. Make at least one unsuccessful attempt to
personally serve the tenant at home
2. If you know where the tenant works, try
unsuccessfully to serve her at work
3. Post a copy of the notice on the tenant’s front
door, and
4. Mail another copy to the tenant at home by first-
class mail. (C.C.P. § 1162(3) and Hozz v. Lewis
(1989) 215 Cal. App. 3d 314.)
CHAPTER 2: EVICTION FOR NONPAYMENT OF RENT 23
You may want to send the letter by certified mail and
save the mailing receipt the Postal Service gives you.
You can send it return receipt requested, so you know
when the tenant received it; on the other hand, some
people routinely refuse to sign for and accept certified
mail.
Another way around this problem is to talk to the
tenant—before you file an eviction lawsuit—and pin
her down as to having received the notice. (Don’t ask,
“Did you get my three-day notice?” Ask, “When are you
going to pay the rent I asked for in the three-day notice
I left you?”)
EXAMPLE: Tyler’s rent is due on the 15th of each
month, but he still hasn’t paid Lyle, his landlord,
by the 20th. Lyle can seldom find Tyler (or anyone
else) at home, and doesn’t know where (or if) Tyler
works. Since that leaves no one to personally or
substitute serve with the three-day notice, Lyle has
only the “posting-and-mailing” alternative. Lyle can
tape one copy to the door of the property and mail
a second copy to Tyler at that address by first-class
mail. Lyle should begin counting the three days
the day after both of these tasks are accomplished.
The three-day period after which Lyle can bring an
unlawful detainer lawsuit is counted the same way
as if the notice were served personally.
Proof of Service. Be sure the person who serves the
three-day notice completes the Proof of Service at the
bottom on an extra copy of the notice. (See above.)
After the Three-Day Notice Is Served
Your course of action after the three-day notice is
served depends on whether or not the tenant pays the
rent in full and whether the tenant stays or leaves.
The Tenant Stays
If the tenant offers the rent in full any time before the
end of the three-day period, you must accept it if it’s
offered in cash, certified check, or money order. If
you’ve routinely accepted rent payments by personal
check, you must accept a personal check in response
to a three-day notice unless you notified the tenant
otherwise in the notice itself. If you refuse to accept the
rent (or if you insist on more money than demanded in
the notice, such as late charges) and file your lawsuit
anyway, your tenant will be able to contest it and win.
(The only way to evict a month-to-month tenant who
never pays until threatened with a three-day notice is to
terminate his tenancy with a 30-day or 60-day notice—
see Chapter 3.)
If a properly notified tenant doesn’t pay before the
notice period passes, the tenancy is terminated. You
then have a legal right to the property, which you can
enforce by bringing an unlawful detainer action. (See
below and Chapter 6.)
You do not have to accept rent after the end of
the notice period.
In fact, if you do accept rent
(even part payments), you reinstate the tenancy and waive
your right to evict based on the three-day notice. For
example, if on the third day after service of a three-day
notice demanding $300 rent you accept $100, along with
a promise to pay the remaining $200 “in a few days,
you will have to start over again with a three-day notice
demanding only the balance of $200, and base your
lawsuit on that. If you proceed with the lawsuit based on
the three-day notice demanding all the rent, the tenant may
be able to successfully defend the lawsuit on the ground
that you waived the three-day notice by accepting part
of the rent. Of course, you may want the partial payment
badly enough to be willing to serve a new notice. In that
case, accept it with one hand and serve a three-day notice
for the remaining unpaid amount.
The Tenant Moves Out
Once in a great while, a tenant will respond to a Three-
Day Notice to Pay Rent or Quit by actually moving out
within the three days. If the tenant doesn’t pay the rent,
but simply moves after receiving the three-day notice,
he still owes you a full month’s rent since rent is due in
advance. The tenant’s security deposit may cover all or
most of the rent owed. If not, you may decide to sue
the tenant in small claims court for the balance.
Nolos book Everybodys Guide to Small Claims
Court in California, by Ralph Warner, shows how to
sue in small claims court.
24 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
What if the tenant simply sneaks out within the three-
day period, but doesn’t give you the keys or otherwise
make it clear he’s turning over possession of the property
to you? In that case, you can’t legally enter and take
possession unless you either use a procedure called
“abandonment” or file an eviction suit anyway. If you
file suit, you must serve the summons and complaint by
posting and mailing, as described in “Serving the Papers
on the Defendant” in Chapter 6, and obtain a judgment.
For more information on the abandonment alternative,
and to decide whether it may be suitable under your
circumstances, see The California Landlord’s Law Book:
Rights & Responsibilities, Chapter 19.
When to File Your Lawsuit
As we have stressed, you cannot begin your unlawful
detainer lawsuit until the three-day notice period expires.
The rules for counting the days are as follows:
Service is complete when you personally serve
the three-day notice or, if you serve the notice
by “substituted service” or “posting-and-mailing”
service, three days after you have both (1) mailed
the notice and (2) either given it to another adult
or posted it (as described above).
If you serve more than one tenant with notices,
but not all on the same day, start counting only
after the last tenant is served.
Do not count the day of service as the first day.
The first day to count is the day after service of
the notice was completed.
Do not file your lawsuit on the third day after
service is complete. The tenant must have three
full days after service to pay the rent or leave
before you file suit.
If the third day is a business day, you may file
your lawsuit on the next business day after that.
If the third day falls on a Saturday, Sunday, or
legal holiday, the tenant has until the end of the
next business day to pay the rent. You cannot file
your suit on that business day, but must wait until
the day after that. (LaManna v. Vognar (1993) 4
Cal. App. 4th Supp. 4, 22 Cal. Rptr. 2d 510.)
In the past, some judges (particularly some in Los
Angeles County) ruled that if you served your three-
day notice by posting-and-mailing or by “substituted
service” on another person—both of which involve
mailing a second copy to the tenant—you have to
wait an extra five days for the tenant to pay or move,
before filing suit. Now, however, the law is clear. You
do not have to wait an extra five days before filing
your complaint. (Losornio v. Motta (1998) 67 Cal. App.
4th 110, 78 Cal. Rptr. 2d 799.) You should be prepared
to bring this to the attention of the judge during any
default hearing or trial if the judge or tenant raises the
issue. (See “Getting a Money Judgment for Rent and
Costs” in Chapter 7 and “The Trial” in Chapter 8.)
EXAMPLE: Toni failed to pay the rent due on
Monday, November 1. On November 11, Les
personally served Toni with the three-day notice at
home. The first day after service is Friday the 12th,
the second day is Saturday the 13th, and the third
day is Sunday the 14th. Since third day falls on a
Sunday, Toni has until the end of the next business
day—Monday the 15th—to pay the rent or leave.
Only on the 16th can Les file suit.
Eviction by 30-Day or 60-Day Notice
Overview of the Process ............................................................................................. 26
When a Tenancy May Be Terminated With a 30-Day or 60-Day Notice ....................... 26
Impermissible Reasons to Evict ................................................................................... 26
30-Day, 60-Day, and 90-Day Notices .......................................................................... 28
30-Day Notice for Tenancies of Less Than a Year .................................................... 28
60-Day Notices for Tenancies of a Year or More ..................................................... 29
90-Day Notices to Terminate Government-Subsidized Tenancies ............................ 29
Rent Control and Just Cause Eviction Ordinances ....................................................... 30
Nonpayment of Rent ............................................................................................. 32
Refusal to Allow Access ......................................................................................... 32
Relatives ................................................................................................................ 32
Remodeling .......................................................................................................... 33
Condominium Conversion or Demolition .............................................................. 34
Violation of Rental Agreement ................................................................................ 34
Damage to the Premises ........................................................................................ 34
Illegal Activity on the Premises ............................................................................... 34
Should You Use a Three-Day, 30-Day, or 60-Day Notice? ............................................ 35
Preparing the 30-Day or 60-Day Notice ...................................................................... 35
Serving the Notice ...................................................................................................... 38
When the Notice Should Be Served ....................................................................... 38
Who Should Serve the Notice ................................................................................ 39
Whom to Serve ...................................................................................................... 39
How to Serve the Notice on the Tenant .................................................................. 39
When to File Your Lawsuit ........................................................................................... 39
C H A P T E R
3
26 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
T
he second most common basis for unlawful
detainer lawsuits (after failure to pay rent) is the
tenant’s failure to move after receiving a 30-day
notice terminating the tenant’s month-to-month tenancy.
Overview of the Process
Before you can file an unlawful detainer lawsuit against
a tenant, you must legally terminate the tenancy. If the
tenant has a month-to-month tenancy, you can use a
30-day notice to terminate the tenancy if the tenant has
occupied the rental for less than a year. In most cases,
you must give a tenant 60 days’ notice if he or she has
lived in the property a year or more. (See “30-Day,
60-Day, and 90-Day Notices,” below.) Also, a 90-day
notice is required to terminate certain government-
subsidized tenancies. In most circumstances, you don’t
have to state a reason for terminating the tenancy.
This general rule, however, has some very important
exceptions, discussed below.
If the tenant doesn’t leave by the end of the 30 (or 60)
days, you can file your lawsuit to evict the tenant.
Checklist for 30- or 60-Day Notice Eviction
Below is an overview of steps involved in evicting on
the grounds covered in this chapter, assuming that the
tenant defaults. We cover some of the subjects (for
example, filing a complaint and default judgment) in
later chapters. As you work your way through the book,
you may want to return to this chart to see where you
are in the process.
When a Tenancy May Be Terminated
With a 30-Day or 60-Day Notice
There are basically two types of residential tenancies.
The first is a “fixed-term” tenancy, where the property
is rented to the tenant for a fixed period of time, usually
a year or more, and which is normally formalized with
a written lease. During this period, the landlord may
not raise the rent and may not terminate the tenancy
except for cause, such as the tenant’s failure to pay
the rent or violation of other lease terms. This type
of tenancy may not be terminated by a 30- or 60-day
notice.
Negotiating With Tenants
If a lease is in effect and for some important reason,
such as your need to sell or demolish the building,
you want the tenants out, you might try to negotiate
with them. For example, offer them a month or two
of free or reduced rent if they’ll move out before
their lease expires. Of course, any agreement you
reach should be put in writing.
The second type of tenancy is a “periodic tenancy,”
a tenancy for an unspecified time in which the rent is
paid every “period”—month, week, every other week,
and so on. A “periodic tenancy” that goes from month
to month may be terminated with a 30-day notice
(subject to the two restrictions introduced earlier). If
the rental period is shorter than one month, the notice
period can be shorter, too. The point is that the notice
must only be as long as the rental period.
Because the overwhelming majority of residential
tenancies are month to month, we assume 30 or 60
days is the correct notice period for terminating a
periodic tenancy using the procedures in this chapter.
How do you tell if your tenancy is month to month?
If you have been accepting monthly rent from your
tenant without a written agreement or if you have a
written rental agreement that either is noncommittal
about a fixed term or specifically provides for 30 days’
notice to terminate the tenancy, the tenancy is from
month to month. It is also a month-to-month tenancy
if you (or the owner from whom you purchased the
property) continued to accept rent on a monthly basis
from a tenant whose lease had expired.
Impermissible Reasons to Evict
A landlord can evict a tenant without a reason, but
not for the wrong reason. This means you can’t evict a
tenant:
because of race, marital status, religion, sex,
having children, national origin, or age (Unruh
Civil Rights Act, Civ. Code §§ 51–53)
if the tenant exercised the “repair-and-deduct”
remedy (by deducting the cost of habitability-
related repairs from the rent) within the past six
CHAPTER 3: EVICTION BY 30-DAY OR 60-DAY NOTICE 27
Checklist for 30- or 60-Day Notice Eviction
Step Earliest Time to Do It
1. Prepare and serve the 30- or 60-day notice on the
tenant.
Any time. Immediately after receipt of rent is best.
2. Prepare the Summons (or Summonses, if there is more
than one tenant) and Complaint and make copies.
(Chapter 6)
The 30th or 60th day after service of the 30-day or 60-
day notice is complete.
3. File the Complaint at the courthouse and have the
Summons(es) issued. (Chapter 6)
The fi rst day after the notice period expires.
4. Have the sheriff, the marshal, or a friend serve the
Summons and Complaint. (Chapter 6)
As soon as possible after fi ling the Complaint and
having the Summons(es) issued.
5. Prepare Request for Entry of Default, Judgment,
Declaration, and Writ of Possession. (Chapter 7)
While you’re waiting for fi ve-day (or 15-day, if
Complaint not personally served) response time to pass.
6. Call the court to fi nd out whether or not tenant(s) have
led written response.
Just before closing on the fi fth day after service of
Summons, or early on the sixth day. (Do not count
holidays that fall on weekdays, however. Also, if fi fth
day after service falls on weekend or holiday, count the
rst business day after that as the fi fth day.)
7. Mail copy of Request for Entry of Default to tenant(s),
le original at courthouse. Also fi le Declaration and
Proof of Service, and have clerk issue Judgment and
Writ for Possession for the property. (Chapter 7)
Sixth day after service of Summons and Complaint.
(Again, count fi rst business day after fi fth day that falls
on weekend or holiday.)
8. Prepare letter of instruction for, and give writ and
copies to, sheriff or marshal. (Chapter 7)
As soon as possible after above step. Sheriff or marshal
won’t evict for at least fi ve days after posting notice.
9. Change locks after tenant vacates. As soon as possible.
For Money Judgment
10. Prepare Request for Entry of Default, Judgment, and, if
allowed by local rule, Declaration in Lieu of Testimony.
(Chapter 7)
As soon as possible after property is vacant.
11. Mail Request for Entry of Default copy to tenant,
le request at courthouse. If Declaration in Lieu
of Testimony allowed, fi le that too, and give clerk
judgment and writ forms for money part of judgment.
If testimony required, ask clerk for default hearing.
(Chapter 7)
As soon as possible after above.
12. If testimony required, attend default hearing before
judge, testify, and turn in your judgment form for entry
of money judgment. (Chapter 7)
When scheduled by court clerk.
13. Apply security deposit to cleaning and repair of property,
and to any rent not accounted for in judgment, then
apply balance to judgment amount. Notify tenant in
writing of deductions, keeping a copy. Refund any
balance remaining. If deposit does not cover entire
judgment, collect balance of judgment. (Chapter 9)
As soon as possible after default hearing. Deposit
must be accounted for within three weeks of when the
tenants vacate.
28 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
months, unless the notice states a valid reason for
terminating the tenancy
because he complained about the premises to
local authorities, exercised rights given to tenants
by law, or engaged in behavior protected by the
First Amendment—for example, organizing other
tenants. (See The California Landlord’s Law Book:
Rights & Responsibilities, Chapter 15.)
If you evict for an illegal reason, or if it looks like
you are trying to, your tenant can defend the unlawful
detainer lawsuit or sue you later for damages. Generally,
if any of the elements listed below are present, you
should think twice about evicting with a 30-day or
60-day notice that doesn’t state a valid reason. Even
though you state a valid reason, the tenant can still
sue if she believes the eviction was illegally motivated.
Conversely, even if you state no reason, your eviction
will be upheld if you prevail over the tenant’s defense.
The main reason to state a valid reason (except in rent
control areas where the reason must be stated) is to
convince the tenant not to be paranoid.
Think twice about evicting with such a notice and
without a valid business reason when any of the
following are true:
The tenant is a member of a racial, ethnic, or
religious minority group.
The tenant is gay.
The tenant has children and your other tenants
don’t.
The tenant has recently (say within a year)
complained to the authorities about the premises.
The tenant has recently (within six months)
lawfully withheld rent.
The tenant has organized a tenants’ union.
The tenant is handicapped.
The tenant is elderly.
The tenant receives public assistance.
If none of these factors is present (and the premises
are not covered by a rent control ordinance or rented
under a government-subsidized program), you will
probably have no problem using a 30-day or 60-day
notice, without specifying a reason, to terminate a
tenancy.
Federal Housing Programs
“Section 8” refers to Section 8 of the United States
Housing Act of 1937 (42 U.S.C. § 1437f), and
“Section 236” refers to Section 236 of the National
Housing Act of 1949 (12 U.S.C. § 1517z-1). Both
are federal laws providing government housing
assistance to low-income families. For additional
information about the more stringent requirements
for eviction from government-subsidized rentals,
see Civ. Code § 1954.535 and the following cases:
Appel v. Beyer (1974) 39 Cal. App. 3d Supp. 7;
Gallman v. Pierce (1986, N.D. Cal.) 639 F. Supp.
472; Mitchell v. Poole (1988) 203 Cal. App. 3d Supp.
1; Gersten Companies v. Deloney (1989) 212 Cal.
App. 3d 1119; and 24 C.F.R. §§ 450 and following,
§§ 882 and following.
30-Day, 60-Day, and 90-Day Notices
To terminate a month-to-month tenancy, you must
give written notice to the tenant. You need give
only 30 days’ notice if your tenant has occupied the
property for less than a year, 60 days’ notice if the
tenant has been in the property a year or more, and
90 days’ notice for certain government-subsidized
tenancies. Regardless of which notice is required, you
must comply with any just-cause eviction provisions
of any applicable rent control ordinances—which
usually includes listing the reason for the termination of
tenancy.
30-Day Notice for Tenancies of
Less Than a Year
If your tenant has occupied your property for less than
a year, you must give him 30 days’ notice to terminate
a residential month-to-month tenancy. (Civ. Code
§ 1946.1(c).) This is true even for tenancies of shorter
periodic length, such as tenancies from week to week.
(However, the tenant need give only a week’s notice
to terminate a week-to-week tenancy, and so forth.)
Of course, you can give the tenant more than 30 days’
notice if you want to. The requirement is that you give
at least 30 days’ written notice.
CHAPTER 3: EVICTION BY 30-DAY OR 60-DAY NOTICE 29
Landlords cannot reduce their notice period to
less than 30 days.
Although agreements reducing
the landlord’s notice period to as few as seven days were
previously legal under Civ. Code § 1946, termination of
residential tenancies, as opposed to commercial ones, is
now governed by the newer Section 1946.1, which does
not refer to the possibility of such a reduced notice period.
We believe Civ. Code § 1946, with its language allowing
the parties to agree in writing to a shorter notice period, no
longer applies to residential tenancies.
One final word of caution: The “less than a year”
requirement refers to how long the tenant has actually
lived in the property, not the length of the most recent
lease term. For example, if your tenant has lived in
your rental house for the past year and a half, but
signed a new six-month lease eight months ago (so
that the lease expired and the tenancy is now month
to month), you must give 60 days’ notice. (See Section
2, below.) In other words, you start counting as of the
date the tenant started living in the unit, not when you
both signed the most recent lease or rental agreement.
60-Day Notices for Tenancies of a
Year or More
If your tenant has occupied the premises for a year or
more, you must deliver a 60-day notice to terminate a
month-to-month tenancy. (Civ. Code § 1946.1.) Again, this
is true even for periodic tenancies of shorter duration,
such as week to week, and regardless of any provision
in your rental agreement that specifies a shorter notice
period.
This 60-day notice requirement does not work both
ways. A month-to-month residential tenant who has
occupied your property for a year or more does not
have to give you 60 days’ notice. The tenant need give
you only 30 days’ notice to terminate the tenancy.
If you give your tenant a 60-day notice, the tenant
has the right to give you a written 30-day (or more)
notice, which (as long as it’s less than your 60-day
notice) will terminate the tenancy sooner than the
expiration of the 60-day notice that you delivered.
EXAMPLE: Lois Landlord has rented to Terri Tenant
for over a year. On March 1, Lois serves Terri with
a 60-day notice, terminating her tenancy effective
April 29. Terri, however, quickly finds a new place
and now wants to leave sooner than that. So, on
March 10, she gives Lois a written 30-day notice,
which terminates her tenancy on April 9. Assuming
she vacates on or before that date, she won’t be
responsible for any rent past April 9.
There is one extremely narrow exception to the
rule that a landlord must give a tenant 60 days’ notice
of termination of a month-to-month tenancy, where
the tenant has lived in the property a year or more.
This is where the landlord is in the process of selling
the property to an individual who is going to live in
it. Even if the tenant has occupied the property for a
year or more, the landlord can terminate the tenant’s
month-to-month tenancy with a 30-day notice if all the
following are true:
The property is a single-family home or condo-
minium unit (as opposed to an apartment unit).
You are selling the property to an actual (“bona
fide”) purchaser (as opposed to transferring it
to a relative for less than fair market price, for
example).
The buyer is an individual (not a corporation,
partnership, or LLC) who intends to occupy the
property for a year.
You and the buyer have opened an escrow for
the sale to be consummated.
You give the 30-day notice within 120 days of
opening the escrow.
You have never previously invoked this exception,
with respect to this property.
Unless all the above things are true, you must give
the tenant at least 60 days’ written notice to terminate a
month-to-month or other periodic tenancy, if the tenant
has occupied the property for a year or more.
90-Day Notices to Terminate Government-
Subsidized Tenancies
If you receive rent or other subsidies from federal, state,
or local governments, you may evict only for certain
reasons. Acceptable reasons for termination are usually
listed in the form lease drafted by the agency or in the
agency’s regulations. If your tenants receive assistance
from a local housing authority under a “Section 8”
or other similar program of a federal, state, or local
agency, you must very specifically state the reasons for
termination in the 90-day notice, not a 30-day or 60-day
30 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
notice, saying what acts the tenant did, and when, that
violated the lease or otherwise constitute good cause
for eviction. (Civ. Code § 1953.545; Wasatch Property
Management v. Del Grate, 35 Cal. 4th 1111 (2005).)
Allowable reasons for eviction are contained in the
standard form leases the housing authority requires the
landlord to use.
If you decide to terminate a Section 8 tenant because
you no longer wish to participate in the program,
simply say so on the termination form. Keep in mind,
however, that you cannot terminate for this reason until
that tenant’s initial rental term has elapsed. In addition,
during the 90-day period prior to termination, you
cannot increase the rent or otherwise require any
subsidized tenant to pay more than he or she paid
under the subsidy.
Rent Control and Just Cause Eviction
Ordinances
“Just cause requirements for evictions severely limit the
reasons for which landlords can evict tenants. Landlords
are authorized to terminate a month-to-month tenancy
only for the reasons specifically listed in the particular
ordinance. Most just cause provisions also require
that the reason be clearly and specifically stated on the
notice (see below) as well as in a subsequent unlawful
detainer complaint.
Cities That Require Just Cause for Eviction
Berkeley Hayward San Francisco
Beverly Hills Los Angeles Santa Monica
East Palo Alto Oakland Thousand Oaks
Glendale San Diego
(2+ years’ tenancy)
West Hollywood
If your property is in a city that requires just cause,
the usual rules for 30- or 60-day notice evictions simply
do not apply. Even if an eviction is authorized under
state law, a stricter local rent control ordinance may
forbid it. For example, San Francisco’s rent control
ordinance, which does not permit eviction of a tenant
solely on the basis of a change in ownership, has been
held to prevail over state law, which allows eviction for
this reason if the tenancy is month to month. (Gross v.
Superior Court (1985) 171 Cal. App. 3d 265.)
EXAMPLE: You wish to terminate the month-to-
month tenancy of a tenant who won’t let you in the
premises to make repairs, even though you have
given reasonable notice (all ordinances consider
this a just cause for eviction). You must give the
tenant a 30-day (or 60-day) notice that complies with
state law and that also states in detail the reason
for the termination, listing specifics, such as dates
the tenant refused to allow you in on reasonable
notice. If the tenant refuses to leave and you bring
an unlawful detainer suit, the complaint must also
state the reason for eviction (this is usually done
by referring to an attached copy of the 30-day or
60-day notice). If the tenant contests the lawsuit,
you must prove at trial that the tenant repeatedly
refused you access, as stated in the notice.
Before you start an eviction by giving a 30-day or
60-day notice, you should check Appendix 1, which
lists the just cause requirements of each city with
rent control, and a current copy of your ordinance.
(For a more thorough discussion of rent control,
see The California Landlord’s Law Book: Rights &
Responsibilities, Chapter 4.) Do this carefully. If you are
confused, talk to your local landlords’ association or
an attorney in your area who regularly practices in this
field.
Although cities’ ordinances differ in detail, the basic
reasons that constitute “just cause” are pretty much the
same in all of them. Most rent control ordinances allow
the following justifications for terminating a month-to-
month tenancy with a 30-day or 60-day notice.
CHAPTER 3: EVICTION BY 30-DAY OR 60-DAY NOTICE 31
Just Cause Protection in San Diego and Glendale
Two non-rent-control California cities—San Diego and
Glendale—require a landlord in certain cases to have
“just cause” to terminate a tenancy, even one from
month-to-month. In your termination notice, you must
state which reason justifies your actions.
San Diego.
San Diego’s just-cause-eviction rules
apply only where the tenant has lived in the property
for two years. (San Diego Municipal Code §§ 98.0701
through 98.0760.) With such tenants, the landlord may
terminate the tenancy only for the following reasons:
• Nonpayment of rent, violation of “a lawful and
material obligation or covenant of the tenancy,
commission of a nuisance, or illegal use of the
premises. These grounds duplicate those in state
law. You may use the three-day notice to pay
rent or quit, notice to cure covenant or quit, or
unconditional notice to quit (nuisance or illegal
use) in the forms appendix in this book when
terminating such tenancies.
• Refusal to give the landlord reasonable access to
the rental unit for the purpose of making repairs
or improvements, or for the purpose of inspection
as permitted or required by the lease or by law,
or for the purpose of showing the rental unit to a
prospective purchaser or mortgagee. If the lease or
rental agreement has a clause requiring the tenant
to allow access, you may use a three-day notice to
cure the covenant or quit. If the tenancy is month to
month, you may also choose an unconditional 60-
day notice of termination.
• Refusal “after written request of a landlord” to sign
a lease renewal “for a further term of like duration
with similar provisions.
• To make necessary repairs or construction when
removing the tenant is reasonably necessary to
do the job, provided the landlord has obtained all
necessary permits from the city.
• When the landlord intends to withdraw all rental
units in all buildings or structures on a parcel of
land from the rental market, or when the landlord,
a spouse, parent, grandparent, brother, sister, child,
grandchild, or a resident manager plans to occupy
the rental unit. These grounds may be used only if
the tenancy is month to month (under state law, you
must give 60 days’ written notice).
Glendale. Glendale’s just-cause-eviction rules
(Glendale Municipal Code §§ 9.30.010 through
9.30.100) allow eviction in the following situations (all
termination notices must be in writing and state the
landlord’s reasons for terminating):
• Nonpayment of rent, breach of a “lawful obligation
or covenant,” nuisance, or illegal use of the
premises or permitting any illegal use within 1,000
feet of the unit. “Illegal use” specifically includes all
offenses involving illegal drugs, such as marijuana
(without a doctor’s prescription). In these situations,
you may use a three-day notice.
• When an unauthorized subtenant not approved by
the landlord is in possession at the end of a lease
term.
• When a tenant refuses to allow the landlord
access “as permitted or required by the lease or by
law.” If the lease or rental agreement has a clause
requiring the tenant to allow access, you might
use a three-day notice to cure covenant or quit, or
an unconditional 60-day notice of termination of
tenancy if the tenancy is month-to-month.
• When the landlord offers a lease renewal of at least
one year, serves a notice on the tenant of the offer
at least 90 days before the current lease expires,
and the tenant fails to accept within 30 days.
• When the landlord plans to demolish the unit or
perform work on it that costs at least eight times
the monthly rent, and the tenant’s absence is
necessary for the repairs; or when the landlord is
removing the property from the rental market, or
seeks to have a spouse, grandparent, brother, sister,
in-law, child, or resident manager (if there is no
alternate unit available) move into the unit. Under
state law, these grounds may be used only if the
tenancy is month-to-month, and 30 or 60 days’
written notice is given. The landlord must pay the
tenant relocation expenses of two months’ rent for a
comparable unit plus $1,000.
32 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Don’t Get Tripped Up by
Rent Control Violations
Any violation of a rent control ordinance by you
can be used by a tenant to avoid eviction—even if
the part of the ordinance you violated has nothing
to do with the basis for eviction. For example, in
many “strict” rent control cities, as well as in Los
Angeles, where ordinances require landlords to
register their properties with rent boards, a landlord
who fails to register all the properties in a particular
building cannot evict any tenant in any of the
units for any reason—even if that particular unit is
registered. In these cities, a tenant could be months
behind in the rent and destroying his apartment,
but the landlord would be legally unable to evict
because he hadn’t registered some other apartment
in the same building with the rent board.
Similarly, a landlord’s minor violation, such
as failing to keep a tenant’s security deposit in a
separate account (if required), can be used by a
tenant to defend an eviction based on the tenant’s
repeated loud parties. Problems of this sort can be
avoided if you comply with every aspect of your city’s
ordinance.
Nonpayment of Rent
Although you can use a 30-day or 60-day notice to evict
a tenant who doesn’t pay the rent, you should almost
always use a three-day notice (see Chapter 2) instead. A
longer notice will delay the eviction, and you can’t sue
for back rent in your unlawful detainer action. (Saberi
v. Bakhtiari (1985) 169 Cal. App. 3d 509, 215 Cal. Rptr.
359.) It is, however, arguable that if you use a longer
notice based on nonpayment of rent, you deprive the
tenant of her right to a conditional notice that gives her
the chance to stay if she pays the rent. Although the
long notice gives more time, it’s unconditional, unlike a
three-day notice to pay rent or quit.
Refusal to Allow Access
If, following receipt of a written warning from you, the
tenant continues to refuse you or your agent access to
the property (assuming you give the tenant reasonable
notice of your need to enter—see The California Land-
lord’s Law Book: Rights & Responsibilities, Chapter 13) to
show it to prospective buyers or to repair or maintain it,
you may evict the tenant.
Most ordinances require that tenants be given a
written warning before their tenancy is terminated by
notice. Thus, if the tenant refuses you entry, you should
serve, at least three days before you give the tenant
a 30-day or 60-day notice, a written demand that the
tenant grant access. Check your ordinance to make sure
you comply with its requirements for such a notice.
Before you begin an eviction on this ground, you should
answer “yes” to all the following questions:
Was your request to enter based on one of the
reasons allowed by statute, such as to make
repairs or show the property? (See The California
Landlord’s Law Book: Rights & Responsibilities,
Chapter 13, for more on this.)
Did you give your tenant adequate time to comply
with the notice?
Did you send a final notice setting out the
tenant’s failure to allow access and clearly stating
your intent to evict if access was not granted?
You should use a 30-day or 60-day notice to evict
on this ground, if the tenancy is month to month. If the
tenant rents under a lease, you can use only a three-day
notice to evict, and then only if the lease has a clause
specifically requiring the tenant to give you access to
the property.
Relatives
A landlord who wants the premises to live in herself
(or for her spouse, parent, or child) may use a 30-day
or 60-day notice to ask the existing tenants to leave,
provided the tenancy is month to month.
Some ordinances also allow landlords to evict tenants
so that other relatives of the landlord (such as step-
children, grandchildren, grandparents, or siblings) may
move in. Because some landlords have abused this
reason for eviction—for example, by falsely claiming
that a relative is moving in—most cities strictly limit this
option by requiring the termination notice to include
detailed information, such as the name, current address,
and phone number of the relative who will be moving
in.
In addition, severe rent control cities forbid the use
of this ground if there are comparable vacant units in
the building into which the landlord or relative could
CHAPTER 3: EVICTION BY 30-DAY OR 60-DAY NOTICE 33
move. Some cities allow only one unit per building
to be occupied this way, and most cities do not allow
nonindividual landlords (corporations or partnerships)
or persons with less than a 50% interest in the building
to use this reason. Los Angeles, West Hollywood, and
a few other cities go so far as to require landlords
evicting for this reason to compensate the tenant who
must move out. (See Appendix 1.)
Finally, rent control ordinances and state law ordi-
nances now provide for heavy penalties against landlords
who use a phony-relative ploy. State law requires that
in rent control cities that mandate registration, landlords
who evict tenants on the basis of wanting to move a
relative (or the landlord) into the property must have
their relative actually live there for six continuous
months. (Civ. Code § 1947.10.) Individual cities may
require a longer stay (San Francisco specifies 36 months).
If this doesn’t happen, the tenant can sue the landlord
in court for actual and punitive damages caused by the
eviction.
If a court determines that the landlord or relative
never intended to stay in the unit, the tenant can
move back in. The court can also award the tenant
three times the increase in rent she paid while living
somewhere else and three times the cost of moving
back in. If the tenant decides not to move back into
the old unit, the court can award her three times the
amount of one month’s rent of the old unit and three
times the costs she incurred moving out of it. The tenant
can also recover attorney fees and costs. (Civ. Code
§ 1947.10.) A court awarded one San Francisco tenant
$200,000 for a wrongful eviction based on a phony-
relative ploy. (Beeman v. Burling (1990) 216 Cal. App.
3d 1586, 265 Cal. Rptr. 719.)
If you are planning to evict on the ground of renting
the premises to a family member, you should answer
“yes” to all the following questions:
Are you an “owner” as that term is described in
your ordinance for the purpose of defining who
has the right to possession?
If a relative is moving in, does he qualify under
the ordinance?
Will the person remain on the premises long
enough to preclude a later action against you by
the tenant?
Does your notice provide the specific information
required by the ordinance?
Are you prepared to pay the tenant compensation,
if required by your local ordinance?
Remodeling
A landlord who wants possession of the property to
conduct remodeling or extensive repairs can use a
30-day or 60-day notice to evict tenants in some
circumstances if the tenancy is month to month.
Because of the ease with which this ground for eviction
can be abused, most cities severely limit its use. For
instance, the Los Angeles ordinance requires that at
least $10,000 or more per unit (depending on the size
of the property) be spent on the repairs or remodeling
before eviction on this ground is allowed, and some
ordinances (for example, those in Berkeley and Santa
Monica) allow this ground only where the repairs
are designed to correct local health or building code
violations. In some cities, the landlord, once the repairs
are made, must give the evicted tenant the right of “first
refusal” to re-rent the property. All cities with just cause
eviction provisions require that the landlord obtain all
necessary building and other permits before eviction.
Finally, most cities allow the tenant to sue the landlord
for wrongful eviction if the work isn’t accomplished
within a reasonable time (usually six months) after the
tenant leaves.
If you plan to evict using this ground, you should
answer “yes” to all the following questions:
Is the remodeling really so extensive that it requires
the tenant to vacate the property?
Have you obtained all necessary permits from the
city?
Are you prepared to pay the tenant compensation
if required by ordinance?
Have you made all necessary arrangements with
financing institutions, contractors, and so on, in
order to make sure the work will be finished
within the period required by the ordinance?
Have you met all other requirements of your local
ordinance, such as giving proper notice to the
tenant, offering the tenant the right to relocate
into any vacant comparable unit, or giving the
tenant the opportunity to move back in once the
apartment is remodeled?
34 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Condominium Conversion or Demolition
A landlord may evict to permanently remove
the property from the rental market by means of
condominium conversion or “good faith” demolition
(not motivated by the existence of the rent control
ordinance). But the notice of termination (which
must specify the reason) is only the last step in a very
complicated process. (In addition, the tenancy must
be month to month.) All cities allow this ground to
be used only after the landlord has obtained all the
necessary permits and approvals. Most cities have very
stringent condominium-conversion or antidemolition
ordinances that require all sorts of preliminary notices
to tenants.
A state statute, the Ellis Act, allows this
ground for eviction, but cities can (and do) restrict
application of the law, including requiring notice
periods of more than 30 or even 60 days—in some cases,
as much as 120 days or even a year. In recent years,
the legislature has considered bills that would affect
the removal of residential rental property from the
market. (One proposal would limit the landlord’s right
to demolish residential rental property occupied by
low-income tenants; another would limit the ability of
individual cities to impose restrictions on condominium
conversions.) Be sure to check for new legislation, on
the state and local levels, if your eviction is a first step
toward hoped-for condominium conversion.
Violation of Rental Agreement
If the tenant violates a significant provision of the rental
agreement, you can use a 30-day or 60-day notice to
initiate an eviction if the tenancy is month to month.
This ground also justifies evicting with a three-day notice,
but if one is used, the tenant must, in some cases, be
given the opportunity to correct the violation. (See
Chapter 4.) As a general rule, however, you should use
a 30-day or 60-day notice if the tenancy is month to
month. (See below.)
Violation of New Terms. Some cities prohibit
eviction for violation of a rental agreement provision
that was added to the original rental agreement, either
by means of a notice of change in terms of tenancy or by
virtue of a new rental agreement signed after the original
one expired.
Even in places without rent control, judges are
reluctant to evict based on breaches other than
nonpayment of rent. First, the breach must be
considered “substantial”—that is, very serious. Second,
you should be able to prove the violation with
convincing testimony from a fairly impartial person,
such as a tenant in the same building who is willing
to testify in court. If you’re unable to produce any
witnesses who saw (or heard) the violation, or who
heard the tenant admit to it, forget it.
Before you begin an eviction on this ground, you
should answer “yes” to the following questions:
Was the violated provision part of the original
rental agreement?
If the provision was added later, does your
ordinance allow eviction on this ground?
Can you definitely prove the violation?
Was the violated provision legal under state law
and the ordinance? (See The California Landlord’s
Law Book: Rights & Responsibilities, Chapter 2.)
Damage to the Premises
If the tenant is disturbing other tenants or seriously
damaging the property, you can use a 30-day or 60-day
notice to initiate an eviction procedure. Under state law,
a three-day notice to quit that doesn’t give the tenant
the option of correcting the problem may also be used.
Some rent control cities (Berkeley, East Palo Alto, and
Hayward) require that a landlord give the tenant a
chance to correct the violation. (See Chapter 4.)
Illegal Activity on the Premises
If the tenant has committed (or, in some cities, been
convicted of) serious illegal activity on the premises, a
landlord may initiate an eviction by using a 30-day or
60-day notice if the tenancy is month to month. This
ground also justifies using a three-day notice, but you
should use the longer one if possible. (See Chapter 4.)
You should document the illegal activity thoroughly
(see Chapter 4), keeping a record of your complaints
to police and the names of the persons with whom you
spoke. And although not required by ordinance, it’s
often a good idea to first give the tenant written notice
to cease the illegal activity. If he fails to do so, the fact
that you gave notice should help establish that there’s a
serious and continuing problem.
CHAPTER 3: EVICTION BY 30-DAY OR 60-DAY NOTICE 35
Drug-Dealing Tenants. As stated earlier, it is
essential to do everything you can to evict any
tenant who you strongly suspect is dealing illegal drugs on
the property. A landlord who ignores this sort of problem
can face severe liability.
Should You Use a Three-Day,
30-Day, or 60-Day Notice?
As we have pointed out, some reasons for eviction under
a 30-day or 60-day notice, such as making too much
noise or damaging the property, also justify evicting
with a three-day notice, as described in Chapter 4.
If you can evict a tenant by using a three-day notice,
why give the tenant a break by using a 30-day or 60-
day notice? Simply because a tenant is more likely
to contest an eviction lawsuit that accuses her of
misconduct and gives her a lot less time to look for
another place to live. In places where you don’t have
to show just cause to give a 30-day or 60-day notice,
you also avoid having to prove your reason for evicting
(unless you must overcome a tenant’s defense based on
your supposed retaliation or discrimination).
Finally, if you base the three-day notice on trivial
violations, such as a tenant’s having a goldfish or
parakeet contrary to a no-pets clause in the rental
agreement, but you really want her out because she can’t
get along with you, the manager, or other tenants, you
are likely to lose your unlawful detainer suit. Judges
are not eager to let a tenant be evicted, with only three
days’ notice, for a minor breach of the rental agreement
or causing an insignificant nuisance or damage. If, on
the other hand, you use a 30-day or 60-day notice and
rent in an area that does not require just cause to evict,
you don’t have to state a reason. In other words, by
following this approach, you have one less significant
problem to deal with.
On the other hand, if your tenant has an unexpired
fixed-term lease, you cannot use an unconditional 30-
day or 60-day notice to evict. You then can only evict
if the tenant violates the lease; in that case, the three-
day notice must usually give the tenant the option of
correcting the violation and staying in the premises.
Finally, you should use a three-day notice if
your reason for evicting a month-to-month tenant is
nonpayment of rent (and you want the rent). That’s
because you won’t be able to sue for back rent in an
unlawful detainer lawsuit based on a 30-day or 60-day
notice (you’ll have to bring a separate, small claims
court suit to get the rent). Unless you are prepared
to go to two courts (or want to forgo the back rent
in favor of not having to prove a reason for the
termination), you’ll need to use a three-day notice.
(Saberi v. Bakhtiari, (1985) 169 Cal. App. 3d 509, 215
Cal. Rptr. 359.)
Preparing the 30-Day or 60-Day Notice
A sample Notice of Termination of Tenancy, with
instructions, appears below. As you can see, filling in
the notice requires little more than setting out the name
of the tenant, the address of the property, the date, and
your signature.
List the names of all adult occupants of the premises,
even if their names aren’t on the rental agreement.
Blank, tear-out versions of the Notice of Termination
of Tenancy are in Appendix 3. The CD-ROM also
includes these forms. Instructions for using the CD are in
Appendix 2.
As mentioned above, some rent control ordinances
that require just cause for eviction require special
additions to 30-day or 60-day notices. For example, San
Francisco’s ordinance requires that every notice on which
an eviction lawsuit is based tell the tenant that she may
obtain assistance from that city’s rent control board. Also,
San Francisco’s Rent Board regulations require that the 30-
day notice quote the Section that authorizes evictions for
the particular reason listed.
In addition, many rent control ordinances require that
the reason for eviction be stated specifically in the notice
(state law doesn’t require any statement of a reason). For
example, under most just cause provisions, a notice based
on the tenant’s repeated refusal to allow the landlord access
to the property on reasonable notice must state at least the
dates and times of the refusals. And for terminations based
on wanting to move in a relative or remodel the property,
extra notice requirements are specified in detail in the
ordinance or in regulations adopted by the rent control
board. Check Appendix 1 for general information, and be
sure to get a current copy of your rent control ordinance
and follow it carefully.
36 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
30-Day Notice of Termination of Tenancy
(Tenancy Less Than One Year)
To: ,
(name)
Tenant(s) in possession of the premises at ,
(street address)
City of , County of , California.
YOU ARE HEREBY NOTIFIED that effective 30 DAYS from the date of service on you of this notice, the periodic tenancy by
which you hold possession of the premises is terminated, at which time you are required to vacate and surrender possession
of the premises. If you fail to do so, legal proceedings will be instituted against you to recover possession of the premises,
damages, and costs of suit.
Date:
Owner/Manager
Proof of Service
I, the undersigned, being at least 18 years of age, served this notice, of which this is a true copy, on ,
, one of the occupants listed above as follows:
On , , I delivered the notice to the occupant personally.
On , , I delivered the notice to a person of suitable age and discretion at the
occupant’s residence/business after having attempted personal service at the occupant’s residence, and business, if known. On
, , I mailed a second copy to the occupant at his or her residence.
On , , I posted the notice in a conspicuous place on the property, after having
attempted personal service at the occupant’s residence, and business, if known, and after having been unable to find there a
person of suitable age and discretion. On , , I mailed a second copy to the occupant
at the property.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
Signature
the instructions for completing the Proof of
Service are the same as those described under
the Three-Day Notice to Pay Rent or Quit
(Chapter 2) with one exception—service by
certified mail may be used
fill in tenant’s name(s)
list street address, including apartment number
date of notice owner’s or manager’s signature
if you are in a rent control city or are otherwise required by
law to state a reason for terminating a tenancy, insert it here
CHAPTER 3: EVICTION BY 30-DAY OR 60-DAY NOTICE 37
Rhoda D. Renter
950 Parker Street
Palo Alto Santa Clara
August 3, 20xx Lani Landlord
30-Day Notice of Termination of Tenancy
(Tenancy Less Than One Year)
To: ,
(name)
Tenant(s) in possession of the premises at ,
(street address)
City of , County of , California.
YOU ARE HEREBY NOTIFIED that effective 30 DAYS from the date of service on you of this notice, the periodic tenancy by
which you hold possession of the premises is terminated, at which time you are required to vacate and surrender possession
of the premises. If you fail to do so, legal proceedings will be instituted against you to recover possession of the premises,
damages, and costs of suit.
Date:
Owner/Manager
Proof of Service
I, the undersigned, being at least 18 years of age, served this notice, of which this is a true copy, on ,
, one of the occupants listed above as follows:
On , , I delivered the notice to the occupant personally.
On , , I delivered the notice to a person of suitable age and discretion at the
occupant’s residence/business after having attempted personal service at the occupant’s residence, and business, if known. On
, , I mailed a second copy to the occupant at his or her residence.
On , , I posted the notice in a conspicuous place on the property, after having
attempted personal service at the occupant’s residence, and business, if known, and after having been unable to find there a
person of suitable age and discretion. On , , I mailed a second copy to the occupant
at the property.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
Signature
38 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Also, if your tenant has made a complaint to you or
a local government agency, withheld rent because of a
claimed defect in the property, or participated in tenant-
organizing activity, your notice should state legitimate,
nonretaliatory reasons for terminating the tenancy. (Civ.
Code § 1942.5(c); Western Land Office, Inc. v. Cervantes
(1985) 174 Cal. App. 3d 724.)
You should not list the reason for the termination
unless you are in a high-risk situation as described in
“Impermissible Reasons to Evict,” above, or the local
rent control ordinance or government regulation (for
subsidized housing) requires it. If you do have to
include the reason, you may wish to check with an
attorney or other knowledgeable person in your area to
make sure you state it properly and with specificity; this
will help assure that your tenant cannot complain that
the notice is too vague or void under local law.
Serving the Notice
The law sets out detailed requirements for serving a 30-
day or 60-day notice on a tenant. If you don’t comply
with them, you could lose your unlawful detainer
lawsuit.
When the Notice Should Be Served
A 30-day or 60-day notice can be served on the tenant
on any day of the month. For example, a 60-day notice
served on March 17 terminates the tenancy 60 days later,
on May 16. (Remember to count 60 days, regardless
of whether any intervening month has 28, 29, or 31
days.) This is true even if rent is paid for the period
from the first to the last day of each month. There’s
one exception: if your lease or rental agreement requires
notice to be served on a certain day, such as the first of
the month.
The best time to serve the notice is shortly after you
receive and cash a rent check. Assuming the tenant
paid on time, this means the notice is given toward the
beginning of the month or rental period, so that the
last day of the tenancy will fall only one or two days
into the next month. The advantage is that you will
already have the rent for almost all of the time the tenant
can (legally) remain on the premises. If the tenant
refuses to pay any more rent (for the day or two in the
next month), you can just deduct it from the security
deposit. (See Chapter 9.)
EXAMPLE: Tess has been habitually late with the
rent for the last five months of her seven-month
occupancy, usually paying on the third day after
receiving your three-day notice. On October 2
you knock on Tess’s door and ask for the rent. If
you luck out and get her to pay this time, cash the
check and then serve Tess with a 30-day notice. The
last day of the tenancy will be November 1, and
she’ll owe you only one day’s rent. You can deduct
this amount from the deposit before you return it,
assuming you give the tenant proper written notice
of what you are doing.
Of course, if Tess doesn’t pay her rent on the
2nd, you can resort to the usual three-day notice. If
she still doesn’t pay within three days, you can sue
for nonpayment of rent as described in Chapter 2.
If you’ve already collected “last month’s rent,” you
can serve the 30-day notice (assuming the tenancy
has lasted less than a year) on the first day of the last
month without worrying about collecting rent first. Do
not, however, serve it so that the tenancy ends before
the end of the period (the last month) for which you
have collected rent. Accepting rent for a period beyond
the date you set in the 30-day notice for termination of
the tenancy is inconsistent with the notice and means
you effectively cancel it. (See Highland Plastics, Inc. v.
Enders (1980) 109 Cal. App. 3d Supp.1, 167 Cal. Rptr.
353.)
If you serve the 30-day or 60-day notice in the
middle of the month, your tenant may not be eager,
when the next month comes around, to pay rent for the
part of a subsequent month before the tenancy ends.
If this happens and you can’t settle the issue by talking
to your tenant, you can take the prorated rent for the
last portion of a month out of the security deposit.
(See Chapter 9.)
You could also serve the tenant with
a three-day notice to pay rent or quit for the prorated
rent due. We recommend against this, unless you’ve
given a 60-day notice and the tenant refuses to pay the
rent for the following full month. Using two notices
increases the chances that you will make a procedural
mistake. It complicates the eviction, increases hostility,
and probably won’t get the tenant out any faster.
CHAPTER 3: EVICTION BY 30-DAY OR 60-DAY NOTICE 39
If you are giving less than 30 days’ notice because
your rental agreement allows it but you collect your
rent once a month, be sure that the notice doesn’t
terminate the tenancy during a period for which you’ve
already collected rent. For example, if you collected the
rent for August on August 1, serving a seven-day notice
any sooner than August 24 would improperly purport
to end the tenancy before the end of the paid-for rental
period, August 31.
Who Should Serve the Notice
The 30-day notice may be served by any person over
age 18. (See Chapter 2.) Although you can legally serve
the notice yourself, it’s often better to have someone else
serve it. That way, if the tenant refuses to pay the rent
and contests the eviction lawsuit by claiming he didn’t
receive the notice, you can present the testimony of
someone not a party to the lawsuit who is more likely
to be believed by a judge. Of course, you must weigh
this advantage against any time, trouble or expense it
takes to get someone else to accomplish the service
and, if necessary, appear in court.
Whom to Serve
As with three-day notices, you should try to serve a copy
of the 30-day or 60-day notice on each tenant to whom
you originally rented the property. (See Chapter 2.)
How to Serve the Notice on the Tenant
The notice may be served in any of the ways three-day
notices can be served (see Chapter 2):
by personal delivery to the tenant
by substituted service on another person, plus
mailing, or
by posting and mailing.
In addition, the notice can be served by certified
mail.
The statute does not require that it be sent return
receipt requested. The return receipt gives you proof
that the tenant received the notice, but it also entails a
risk, because a tenant can refuse the letter by refusing
to sign the receipt. In any case, the post office gives
you a receipt when you send anything by certified mail.
If you serve the notice by certified mail, we suggest
that you give the tenant an extra five days (in addition
to the 30 or 60 days) before filing suit. You may be
wondering why, since you do not need to add the extra
five days if you serve a three-day or other notice by
substituted service plus mailing or by posting and mailing.
(In Chapter 2, see “When to File Your Lawsuit” and its
explanation of the Losornio case that established this
rule.) The answer is that, in both a substituted service
plus mailing situation and a posting plus mailing
situation, there is a chance that the tenant will, in fact,
get the benefit of the full period (the person you’ve
served may give the tenant the notice, or the tenant
may pick up the posted notice, within the three or 30
or 60 days). When you serve using certified mail only,
however, there is no way that the tenant can get the
benefit of the full 30 or 60 days, since the notice will
necessarily sit in the post office and the mailbag for a
day or two at least, and there is no alternative way to
receive the notice. For this reason, we think that you
should add the five days to service accomplished via
certified mail only, although plausible arguments can be
made to the contrary. It’s best to take the time to serve
the 30-day notice personally.
Remember:
• Do not accept any rent whatsoever for any period
beyond the day your tenant should be out of the
premises under your notice.
• Accept only rent prorated by the day up until the
last day of tenancy, or you’ll void your notice and
have to start all over again with a new one.
• If you’ve given a 30-day notice, don’t accept any
rent at all if you collected “last month’s rent” from
the tenant, since that’s what you apply to the
tenant’s last month or part of a month.
• Be sure the person serving the notice completes a
Proof of Service at the bottom of an extra copy of
the notice, indicating when and how the notice
was served. (See “Preparing the Three-Day Notice
to Pay Rent or Quit” in Chapter 2.)
When to File Your Lawsuit
Once your 30-day or 60-day notice is properly served,
you must wait 30 or 35 (or 60 or 65) days before taking
any further action. If you file an unlawful detainer
complaint prematurely, you will lose the lawsuit and
have to start all over again. Here’s how to figure out
how long you have to wait:
40 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Service is complete when you personally serve
the notice, or after you have mailed it following
substituted service or posting. If you serve it by
certified mail, though, you should wait an extra
five days before filing suit.
If you serve more than one tenant with notices,
but not all on the same day, start counting only
after the last tenant is served.
Do not count the day of service as the first day.
The first day to count is the day after service of
the notice was completed.
The tenant gets 30 or 60 full days after service.
Do not file your lawsuit until at least the 31st day
(plus any five-day extension on account of serving
by certified mail) after service is complete.
If the 30th or 60th day is a business day, you may
file your lawsuit on the next business day after
that.
If the 30th or 60th day falls on a Saturday, Sunday,
or legal holiday, the tenant can stay until the end
of the next business day. You cannot file your suit
on that business day, but must wait until the day
after that.
EXAMPLE: You personally served Tanya with her
30-day notice on June 3 (the day after she paid you
the rent). June 4 is the first day after service, and
July 3 is the 30th day. But July 3 is a Sunday, and
July 4 is a holiday. This means Tanya has until the
end of the next business day, July 5, to vacate. The
first day you can file your suit is July 6.
If you had served Tanya on June 3 using any
other method of service, she would have an
additional five days to leave, and you could file
suit on July 11 (or later if July 10 were a Saturday,
Sunday, or holiday).
Once you have waited the requisite period, and the
tenant has failed to leave, you can proceed to the next
phase, which is filing an eviction complaint. We tell you
how to do this in Chapter 6.
Eviction for Lease Violations,
Property Damage, or Nuisance
When to Use This Chapter .......................................................................................... 42
Checklist for Uncontested Nonrent Three-Day Notice Eviction ............................... 42
The Two Types of Three-Day Notices ........................................................................... 42
Using the Three-Day Notice to Perform Covenant or Quit ........................................... 44
When to Use a Conditional Notice ........................................................................ 44
Preparing a Conditional Three-Day Notice ............................................................. 45
Using and Preparing an Unconditional Three-Day Notice to Quit ............................... 45
Serving the Three-Day Notice (Either Type) .................................................................. 48
When to Serve Notice ............................................................................................ 48
Who Should Serve the Three-Day Notice ............................................................... 49
Whom to Serve ...................................................................................................... 49
How to Serve the Notice ....................................................................................... 49
Accepting Rent After the Notice Is Served ................................................................... 49
When to File Your Lawsuit ........................................................................................... 52
C H A P T E R
4
42 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
T
his chapter is about evicting tenants who:
engage in highly disruptive activity (for example,
making unreasonable noise, creating a
nuisance, threatening neighbors)
destroy part or all of the premises
clearly violate the lease or rental agreement
(for example, keeping a pet or subleasing
without permission)
make illegal use of the premises (for example,
selling drugs), or
fail to make a payment (other than rent)
that is required under the lease or rental
agreement (for example, late fee, security
deposit upgrade, utility surcharge). (If you
want to evict the tenant for nonpayment of
rent, use Chapter 2.)
When to Use This Chapter
Surprising as it may seem, you may prefer to use a
30-day or 60-day notice to terminate a month-to-month
tenancy instead of the three-day notice allowed under
these circumstances. Why would you want to take the
slower route? First, if you use a three-day notice, you
will have to prove your reason for eviction (the tenant’s
misconduct) in court, whereas with a 30-day or 60-
day notice you don’t have to (except in cities with
rent control that require just cause; see Appendix 1).
Second, a tenant who receives a three-day notice for
misconduct is a lot more likely to defend the suit. He
may want to vindicate his reputation, or get back at
you, or simply want some additional time to move. By
contrast, if you terminate a month-to-month tenancy
with a 30-day or 60-day notice, the tenant has time both
to move and to cool off emotionally, and will probably
exit quietly without finding it necessary to shoot a hole
in your water heater.
Also, to use a three-day notice successfully, the
problem you’re complaining about must be truly serious.
A judge will not order an eviction based on a three-
day notice for minor rental agreement violations or
property damage. For example, if you base a three-day
notice eviction on the fact that your tenant’s parakeet
constitutes a serious violation of the no-pets clause
in the lease, or that one or two noisy parties or the
tenant’s loud stereo is a sufficient nuisance to justify
immediate eviction, you may well lose. The point is
simple: Any time you use a three-day notice short of an
extreme situation, your eviction attempt becomes highly
dependent on the judge’s predilections, and therefore at
least somewhat uncertain.
For these reasons, you should resort to three-
day notice evictions based on something other than
nonpayment of rent only when the problem is serious
and time is very important.
Drug Dealing. If the tenant is dealing illegal
drugs on the property, the problem is serious. A
landlord who hesitates to evict a drug-dealing tenant (1)
faces lawsuits from other tenants, neighbors, and local
authorities; (2) may wind up liable for tens of thousands
of dollars in damages; and (3) may even lose the property.
Fortunately, you won’t be in the ridiculous position of
having to argue about the seriousness of drug dealing.
California law identifies such activity as an illegal nuisance
per se. (C.C.P. § 1161(4).)
It’s easier to evict drug-dealing tenants with a 30-day
or 60-day notice, especially in cities without rent control.
However, if the tenant has a fixed-term lease (which can’t
be terminated with a 30-day or 60-day notice), you will
have no choice but to follow the procedures set forth in
this chapter by using a three-day notice to quit. (See “Using
and Preparing an Unconditional Three-Day Notice to
Quit,” below.) You should start by getting other tenants,
and neighbors, if possible, to document heavy traffic in
and out of the tenant’s home at odd hours. Under these
circumstances, an attorney is recommended.
Checklist for Uncontested Nonrent
Three-Day Notice Eviction
Here are the steps involved in evicting on the grounds
covered in this chapter, if the tenant defaults (doesn’t
contest the eviction). We cover some of the subjects
(for example, filing a complaint and default judgments)
in later chapters. As you work your way through the
book, you may want to return to this chart to see where
you are in the process.
The Two Types of Three-Day Notices
Two kinds of three-day notices are covered here. The
first is called a Notice to Perform Covenant or Quit and
is like the three-day notice used for nonpayment of rent
CHAPTER 4: EVICTION FOR LEASE VIOLATIONS, PROPERTY DAMAGE, OR NUISANCE 43
Checklist for Uncontested Nonrent Three-Day Notice Eviction
Step Earliest Time to Do It
1. Prepare and serve the three-day notice on the tenant.
Any day the tenant is in violation of the lease, has
damaged the property, or has created a nuisance.
2. Prepare the Summons (or Summonses, if there is more
than one tenant) and Complaint and make copies.
(Chapter 6)
When it’s apparent the tenant(s) won’t leave on time; don’t
sign and date it until the day indicated below in Step 3.
3. File the Complaint at the courthouse and have the
Summons(es) issued. (Chapter 6)
The fi rst day after the lease term or tenant’s notice period
expires.
4. Have the sheriff, the marshal, or a friend serve the
Summons and Complaint. (Chapter 6)
As soon as possible after fi ling the Complaint and having
the Summons(es) issued.
5. Prepare Request for Entry of Default, Judgment,
Declaration, and Writ of Possession. (Chapter 7)
While you’re waiting for fi ve-day (or 15-day, if
Complaint not personally served) response time to
pass.
6. Call the court to fi nd out whether or not tenant(s) has
led written response.
Just before closing on the fi fth day after service of
Summons, or early on the sixth day. (Do not count
holidays that fall on weekdays, however. Also, if fi fth
day after service falls on weekend or holiday, count the
rst business day after that as the fi fth day.)
7. Mail copy of Request for Entry of Default to tenant(s),
le original at courthouse. Also fi le Summons and
Declaration and have clerk issue judgment and writ for
possession of the property. (Chapter 7)
Sixth day after service of Summons and Complaint.
(Again, count fi rst business day after fi fth day that falls
on weekend or holiday.)
8. Prepare letter of instruction for, and give writ and
copies to, sheriff or marshal. (Chapter 7)
As soon as possible after above step. Sheriff or marshal
won’t evict for at least fi ve days after posting notice.
9. Change locks after tenant vacates. As soon as possible.
For Money Judgment
10.
Prepare Request for Entry of Default, Judgment, and, if
allowed by local rule, Declaration in Lieu of Testimony.
(Chapter 7)
As soon as possible after property is vacant.
11. Mail Request for Entry of Default copy to tenant,
le request at courthouse. If Declaration in Lieu of
Testimony allowed, fi le that, too, and give clerk
judgment and writ forms for money part of judgment.
If testimony required, ask clerk for default hearing.
(Chapter 7)
As soon as possible after above.
12.
If testimony required, attend default hearing before judge,
testify, and turn in your judgment form for entry of money
judgment. (Chapter 7)
When scheduled by court clerk.
13. Apply security deposit to cleaning and repair of property,
and to any rent not accounted for in judgment, then
apply balance to judgment amount. Notify tenant in
writing of deductions, keeping a copy. Refund any
balance remaining. If deposit does not cover entire
judgment, collect balance of judgment. (Chapter 9)
As soon as possible after default hearing. Deposit
must be accounted for within three weeks of when the
tenants vacate.
44 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
(see Chapter 2) in that it gives the tenant the option of
staying if he corrects his behavior within the three-day
period. If he doesn’t, then the tenancy is considered
terminated. Most three-day notices fit into this category.
The other type of three-day notice simply tells the
tenant to move out in three days. There is no option to
correct the behavior. This kind of unconditional notice
is allowed only in certain circumstances described
below.
We strongly recommend that you use the conditional
notice if any guesswork is involved. The consequences
of using the unconditional notice can be drastic if
the judge later disagrees with you and thinks that the
situation called for a conditional notice. In that event,
the judge will rule that your unconditional three-day
notice was void; you will lose the lawsuit, be liable for
the tenant’s court costs and attorney’s fees, and have to
start all over again with a new notice.
Using the Three-Day Notice to
Perform Covenant or Quit
In most situations, you’ll use a conditional three-day
notice, giving the tenant the option of correcting the
violation or moving out.
When to Use a Conditional Notice
If a tenant who has violated a provision of the lease or
rental agreement can correct her behavior, your three-
day notice must give her that option. As mentioned,
most lease violations are correctable. For instance:
The tenant who violates a “no-pets” clause can
get rid of the pet.
The tenant who has failed to pay separate
charges for utilities, legitimate late charges, or an
installment toward an agreed-on security deposit
can make the payment.
The tenant who violates a lease clause requiring
him to allow you reasonable access to the prop-
erty (on proper notice—see Volume 1, Chapter
13) can let you in.
The list of potentially correctable lease violations is
endless. As a general rule, if the violation isn’t of the
type listed below, it’s probably correctable, and you
should use a three-day notice giving the tenant the
option of correcting the violation.
Rent control ordinances that require just cause for
eviction (many don’t) often dictate what kind of
notice must be used. For example, Berkeley’s ordinance
allows eviction of a tenant who damages the property
only after she’s been given a notice giving her a chance
to stop and to pay for the damage. State law does not
require the landlord to give any warning, but rather
authorizes an unconditional three-day notice to quit in
such a circumstance. These two sources of law can be
reconciled by giving the tenant two notices—first, the
warning or “cease and desist” notice required by the local
ordinance, followed by an unconditional three-day notice
to quit under state law. This can be very tricky, so if you’re
unsure about applicable eviction regulations or have any
doubt about the validity of your grounds for eviction, a
consultation with a landlord-tenant specialist will be well
worth the price.
If you attempt to evict a tenant in violation of a city’s
ordinance, you may be facing more than an unsuccessful
eviction. Depending on the circumstances and the city,
the tenant may come back at you with a suit of her own,
alleging any number of personal injuries—even if the
tenant defaults or loses in the underlying eviction action.
(Brossard v. Stotter (1984) 160 Cal. App. 3d 1067.) And,
as always, if you are not in compliance with the entire
ordinance, a tenant in an eviction lawsuit may successfully
defend on that basis.
Also, some rent control cities preclude eviction for
violations of a lease provision if the provision was added
to the original agreement, either by means of a notice of
change of terms in tenancy or by virtue of a new lease
signed by the tenant after the previous one expired. In
such cities, a landlord who, for example, rented to a
tenant with a pet couldn’t later change the terms of the
rental agreement with a 30-day notice saying no pets are
allowed, then evict for violation of that term after it goes
into effect. (Los Angeles’s ordinance specifically forbids just
this sort of eviction.) This would allow the landlord without
grounds for eviction to evade the just cause requirement by
changing the terms to assure the tenant’s breach. Even in
cities that do permit eviction based on after-added clauses,
the clauses still must be legal and reasonable. Also, every
city’s ordinance makes it illegal for a landlord to attempt to
evade its provisions. An unreasonable change in the rental
agreement that assures a tenant’s breach will most likely
be considered an attempt to circumvent any just cause
requirement, and will not be enforced.
CHAPTER 4: EVICTION FOR LEASE VIOLATIONS, PROPERTY DAMAGE, OR NUISANCE 45
If your property is located in a rent control city that
provides for just cause eviction (see Chapter 3), be sure to
check Appendix 1 and a current copy of your ordinance for
additional eviction and notice requirements that may apply.
Before using the violation-of-lease ground to evict a
tenant, ask yourself the following questions:
Was the violated provision part of the original
lease or rental agreement?
If the provision was added later, does a rent
control ordinance in your city preclude eviction
on this ground?
If the violation is correctable (most are), does
your three-day notice give the tenant an option to
cure the defect?
Does your city’s rent control ordinance impose
special requirements on the notice, such as
a requirement that it state the violation very
specifically, be preceded by a “cease-and-desist”
notice, or include a notation that assistance is
available from the rent board?
Preparing a Conditional Three-Day Notice
If you opt for the conditional notice, your three-day
notice to perform the lease provision (often termed a
covenant or promise) or quit should contain all of the
following:
The tenant’s name. List the names of all adult
occupants of the premises, even if they did not
sign the original rental agreement or lease.
The property’s address, including apartment
number if applicable.
A very specific statement as to which lease or
rental agreement provision has been violated, and
how.
EXAMPLE: “You have violated the Rules and
Regulations incorporated by paragraph 15 of the
lease, prohibiting work on motor vehicles in the
parking stalls, in the following manner: by keeping a
partially dismantled motor vehicle in your parking
stall.”
A demand that within three days the tenant
either comply with the lease or rental agreement
provision or leave the premises.
A statement that you will pursue legal action or
declare the lease or rental agreement “forfeited”
if the tenant does not cure the violation or move
within three days.
The date and your (or your manager’s) signature.
Two sample Three-Day Notices to Perform Covenant
or Quit appear below. The instructions for completing
the Proof of Service are the same as those described
under the Three-Day Notice to Pay Rent or Quit. (See
Chapter 2.)
A blank, tear-out version of the Three-Day Notice to
Perform Covenant or Quit is in Appendix 3. The CD-
ROM also includes this form. Instructions for using the CD
are in Appendix 2.
Using and Preparing an Unconditional
Three-Day Notice to Quit
As noted above, under certain circumstances, the
three-day notice need not give the tenant the option
of correcting the problem. This is true in four kinds of
situations:
1. The tenant has sublet all or part of the premises
to someone else, contrary to the rental agreement
or lease.
2. The tenant is causing a legal nuisance on
the premises. This means that he is seriously
interfering with his neighbors’ ability to live
normally in their homes, for example, by
repeatedly playing excessively loud music late at
night, or by selling illegal drugs on the premises.
If you are tempted to use this ground, be sure
that you can prove the problems with convincing
testimony from a fairly impartial person, such as
a tenant in the same building who is willing to
testify in court. If you’re unable to produce any
witnesses, forget it.
3. The tenant is causing a great deal of damage
(“waste,” in legalese) to the property. Forget about
evicting on this ground for run-of-the-mill damage
caused by carelessness. It will work only in
extreme cases such as where a tenant shatters
numerous windows, punches large holes in walls,
or the like. Again, you must be able to prove the
damage convincingly.
46 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Three-Day Notice to Perform Covenant or Quit
To:
,
(name)
Tenant(s) in possession of the premises at
,
(street address)
City of
, County of
, California.
YOU ARE HEREBY NOTIFIED that you are in violation of the lease or rental agreement under which you occupy these
premises because you have violated the covenant to:
in the following manner:
YOU ARE HEREBY REQUIRED within THREE (3) DAYS from the date of service on you of this notice to remedy the violation
and perform the covenant or to vacate and surrender possession of the premises.
If you fail to do so, legal proceedings will be instituted against you to recover possession of the premises, declare the forfeiture
of the rental agreement or lease under which you occupy the premises, and recover damages and court costs.
Date:
Owner/Manager
Proof of Service
I, the undersigned, being at least 18 years of age, served this notice, of which this is a true copy, on
,
, one of the occupants listed above as follows:
On
,
, I delivered the notice to the occupant personally.
On
,
, I delivered the notice to a person of suitable age and discretion at the
occupant’s residence/business after having attempted personal service at the occupant’s residence, and business, if known. On
,
, I mailed a second copy to the occupant at his or her residence.
On
,
, I posted the notice in a conspicuous place on the property, after having
attempted personal service at the occupant’s residence, and business, if known, and after having been unable to find there a
person of suitable age and discretion. On
,
, I mailed a second copy to the occupant
at the property.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
Signature
Tammy Tenant
1234 4th Street
Monterey Monterey
pay agreed installments of the security deposit in the amount of $50 per month on the first day of each
month (in addition to the rent) until paid
failing to pay the $50 on the first day of the month of September 20xx
Sept. 25, 20xx
Leo Landlord
CHAPTER 4: EVICTION FOR LEASE VIOLATIONS, PROPERTY DAMAGE, OR NUISANCE 47
Three-Day Notice to Perform Covenant or Quit
To:
,
(name)
Tenant(s) in possession of the premises at
,
(street address)
City of
, County of
, California.
YOU ARE HEREBY NOTIFIED that you are in violation of the lease or rental agreement under which you occupy these
premises because you have violated the covenant to:
in the following manner:
YOU ARE HEREBY REQUIRED within THREE (3) DAYS from the date of service on you of this notice to remedy the violation
and perform the covenant or to vacate and surrender possession of the premises.
If you fail to do so, legal proceedings will be instituted against you to recover possession of the premises, declare the forfeiture
of the rental agreement or lease under which you occupy the premises, and recover damages and court costs.
Date:
Owner/Manager
Proof of Service
I, the undersigned, being at least 18 years of age, served this notice, of which this is a true copy, on
,
, one of the occupants listed above as follows:
On
,
, I delivered the notice to the occupant personally.
On
,
, I delivered the notice to a person of suitable age and discretion at the
occupant’s residence/business after having attempted personal service at the occupant’s residence, and business, if known. On
,
, I mailed a second copy to the occupant at his or her residence.
On
,
, I posted the notice in a conspicuous place on the property, after having
attempted personal service at the occupant’s residence, and business, if known, and after having been unable to find there a
person of suitable age and discretion. On
,
, I mailed a second copy to the occupant
at the property.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
Signature
Lester Lessee
123 Main Street, Apartment 4
San Jose Santa Clara
refrain from keeping a pet on the premises
by having a dog and two cats on premises
November 6, 20xx Linda Landlord
48 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Some rent control cities (for example, Berkeley,
East Palo Alto, and Hayward) require that the tenant
be given a written notice directing her to stop damaging
the property and pay the estimated cost of repairs before
you can evict using this ground. This requirement can be
satisfied by either a Three-Day Notice to Perform Covenant
or Quit, or a “cease and desist” notice followed by a Three-
Day Notice to Quit.
4. The tenant is using the property for an illegal
purpose (running a house of prostitution, dealing
drugs, or operating a legitimate business clearly
in violation of local zoning laws). You probably
can’t evict for minor transgressions such as
smoking marijuana on the premises. It is unclear
just how serious illegal activity must be to justify
eviction; there are very few court decisions
dealing with this question.
Because local police—or at least health depart-
ment employees—may be interested in the tenant’s
illegal conduct, make sure to make appropriate
complaints to them first. Keep a record of the
dates and times of your complaints, and the
name(s) of the person(s) with whom you spoke.
And, although not required by ordinance, your
record of having given the tenant written notice
to cease the illegal activity should also help
establish that there’s a problem.
No rent control ordinance requires the tenant be
given a chance to correct illegal use of property.
Some cities, however, allow eviction on this ground only if
the tenant is convicted of illegal activity. (See Appendix 1.)
The notice must contain:
The tenant’s name. List the names of all adult
occupants of the premises, even if they didn’t sign
the original lease or rental agreement.
The property’s address.
A specific statement as to how and approximately
when the tenant violated the rental agreement
or lease in a way that can’t be corrected—for
example, if the tenant illegally sublet, created a
nuisance, damaged the premises, or illegally used
the premises. This is the most important part of
the notice, and must be drafted very carefully to
clearly tell the tenant what she is doing wrong.
Failure to be very specific regarding dates, times,
and conduct could render the notice void—
another reason why a 30-day or 60-day eviction
or, at least, a conditional three-day notice is
usually preferable.
Again, many rent control ordinances that provide
for just cause for eviction require that the reason to
use an unconditional three-day notice be stated even more
specifically than is required under state law. Check your
ordinance.
A demand that the tenant leave the premises
within three days.
An unequivocal statement that the lease is
forfeited and that you will take legal action to
remove the tenant if she fails to vacate within
three days.
The date and your (or your manager’s) signature.
Two sample unconditional Three-Day Notices to Quit
appear below. The instructions for completing the Proof
of Service are the same as those described under the
Three-Day Notice to Pay Rent or Quit. (See Chapter 2.)
A blank, tear-out version of the Three-Day Notice to
Quit is in Appendix 3. The CD-ROM also includes
this form. Instructions for using the CD are in Appendix 2.
Serving the Three-Day Notice
(Either Type)
A three-day notice telling a tenant to either comply with
a lease provision or vacate can be served any day the
tenant is in violation of the lease, but not before. For
example, if your tenant informs you of his intent to move
in a pet Doberman in violation of the “no pets” clause
in the lease, you can serve him with a conditional three-
day notice only as soon as he gets the dog. You can’t get
the jump on him by anticipating the violation. The same
is true of an unconditional Three-Day Notice to Quit.
You can serve the notice any time after the tenant has
illegally sublet, caused a nuisance, severely damaged the
property, or used the property for an illegal purpose.
When to Serve Notice
What happens if you’ve accepted rent for a whole
month and then want to give your tenant a three-day
notice? Should you wait awhile? Here are some general
CHAPTER 4: EVICTION FOR LEASE VIOLATIONS, PROPERTY DAMAGE, OR NUISANCE 49
rules about when to serve your tenants with three-day
notices:
Serve a conditional notice right after you receive
the rent. That way, you won’t be out the rent
during the first month the eviction lawsuit is
pending. It’s perfectly reasonable to accept the
rent for the month and then demand, for example,
that the tenant get rid of her pet, anticipating that
she will comply.
Serve an unconditional notice as close as possible
to the end of a rental period. If you serve the
notice right after you’ve collected the rent in
advance for a whole month, the tenant may claim
that by accepting the rent (assuming you knew
about the problem) you gave up your right to
complain. However, if you can prove that you
became aware of a noncorrectable violation
only a few days after having accepted rent, don’t
worry. If you get the tenant out within the month
for which the tenant has already paid rent, the
tenant does not get a refund for the days he paid
for but didn’t get to stay. By breaching the lease
or rental agreement, the tenant forfeited his right
to occupy the premises, even though he’d already
paid the rent.
Never give a tenant an unconditional Three-
Day Notice to Quit concurrently with a Three-
Day Notice to Pay Rent or Quit. The two are
contradictory, one telling the tenant he can stay
if he pays the rent, the other telling the tenant to
move no matter what. Also, do not give the tenant
an unconditional Three-Day Notice to Quit along
with a 30-day or 60-day Notice of Termination
of Tenancy. These two are contradictory as well,
giving two different time periods within which the
tenant must leave unconditionally.
Who Should Serve the Three-Day Notice
As with a Three-Day Notice to Pay Rent or Quit,
anyone over 18 can serve the notice, including you.
(See Chapter 2.)
Whom to Serve
As with other three-day notices, you should try to serve
a copy of the notice on each tenant to whom you
originally rented the property. (See Chapter 2.)
How to Serve the Notice
The three-day notice must be served in one of three
ways:
personal service on the tenant
substituted service and mailing, or
posting-and-mailing.
You may not serve the notice by certified mail,
which may be used only for 30-day or 60-day notices
terminating month-to-month tenancies. Chapter 2
explains how to accomplish service.
Accepting Rent After the Notice
Is Served
With conditional three-day notices, don’t accept any
rent unless the tenant has cured the violation within
three days—in which case you can’t evict, and the tenant
can stay. If the tenant doesn’t correct the violation
within three days, don’t accept any rent unless you want
to forget about evicting for the reason stated in the
notice.
Don’t accept rent after you’ve served an unconditional
three-day notice unless you want to forget about the
eviction. Acceptance of the rent will be considered a
legal admission that you decided to forgive the violation
and go on collecting rent rather than complain about
the problem.
EXAMPLE: You collected a month’s rent from Peter
on March 1. On March 15, Peter threw an extremely
boisterous and loud party that lasted until 3 a.m.
Despite your warnings the next day, he threw
an identical one that night. He did the same on
the weekend of March 22-23. You served him an
unconditional Three-Day Notice to Quit on the
25th of the month, but he didn’t leave and you
therefore have to bring suit. The rent for March is
already paid, but you can’t accept rent for April or
you’ll give up your legal right to evict on the basis
of the March parties. However, you can get a court
judgment for the equivalent of this rent in the form
of “damages” equal to one day’s rent for each day
from April 1 until Peter leaves or you get a judgment.
50 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Three-Day Notice to Quit
(Improper Subletting, Nuisance, Waste, or Illegal Use)
To: ,
(name)
Tenant(s) in possession of the premises at ,
(street address)
City of , County of , California.
YOU ARE HEREBY NOTIFIED that you are required within THREE (3) DAYS from the date of service on you of this notice to
vacate and surrender possession of the premises because you have committed the following nuisance, waste, unlawful use, or
unlawful subletting:
As a result of your having committed the foregoing act(s), the lease or rental agreement under which you occupy these
premises is terminated. If you fail to vacate and surrender possession of the premises within three days, legal proceedings will
be instituted against you to recover possession of the premises, damages, and court costs.
Date:
Owner/Manager
Proof of Service
I, the undersigned, being at least 18 years of age, served this notice, of which this is a true copy, on ,
, one of the occupants listed above as follows:
On , , I delivered the notice to the occupant personally.
On , , I delivered the notice to a person of suitable age and discretion at the
occupant’s residence/business after having attempted personal service at the occupant’s residence, and business, if known. On
, , I mailed a second copy to the occupant at his or her residence.
On , , I posted the notice in a conspicuous place on the property, after having
attempted personal service at the occupant’s residence, and business, if known, and after having been unable to find there a
person of suitable age and discretion. On , , I mailed a second copy to the occupant
at the property.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
Signature
Ronald Rockland
1234 Diego Street, Apartment 5
San Diego San Diego
You committed a nuisance on the premises by reason of loud boisterous parties at which music was
played at an extremely loud volume, and at which intoxicated guests milled about outside the front
door to the premises and shouted obscenities at passersby every night from February 26th through
28th, 20xx.
March 1, 20xx Laura Landlord
CHAPTER 4: EVICTION FOR LEASE VIOLATIONS, PROPERTY DAMAGE, OR NUISANCE 51
Three-Day Notice to Quit
(Improper Subletting, Nuisance, Waste, or Illegal Use)
To:
,
(name)
Tenant(s) in possession of the premises at
,
(street address)
City of
, County of
, California.
YOU ARE HEREBY NOTIFIED that you are required within THREE (3) DAYS from the date of service on you of this notice to
vacate and surrender possession of the premises because you have committed the following nuisance, waste, unlawful use, or
unlawful subletting:
As a result of your having committed the foregoing act(s), the lease or rental agreement under which you occupy these
premises is terminated. If you fail to vacate and surrender possession of the premises within three days, legal proceedings will
be instituted against you to recover possession of the premises, damages, and court costs.
Date:
Owner/Manager
Proof of Service
I, the undersigned, being at least 18 years of age, served this notice, of which this is a true copy, on
,
, one of the occupants listed above as follows:
On
,
, I delivered the notice to the occupant personally.
On
,
, I delivered the notice to a person of suitable age and discretion at the
occupant’s residence/business after having attempted personal service at the occupant’s residence, and business, if known. On
,
, I mailed a second copy to the occupant at his or her residence.
On
,
, I posted the notice in a conspicuous place on the property, after having
attempted personal service at the occupant’s residence, and business, if known, and after having been unable to find there a
person of suitable age and discretion. On
,
, I mailed a second copy to the occupant
at the property.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
Signature
Leslie D. Lessee
2468 Alameda Street
San Jose Santa Clara
You have unlawfully sublet a portion of the premises to another person who now lives on the premises
with you, contrary to the provisions of your lease.
March 3, 20xx Mel Manager
52 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
When to File Your Lawsuit
Once you have properly served the notice you will
need to wait for the appropriate number of days to pass
before you take the next step, filing your lawsuit. Here
is how to compute this period:
If you serve more than one tenant with notices,
but not all on the same day, start counting only
after the last tenant is served.
Do not count the day of service as the first day.
The first day to count is the day after service of
the notice was completed.
Do not file your lawsuit on the third day after
service is complete. The tenant must have three
full days after service before you file suit.
If the third day is a business day, you may file
your lawsuit on the next business day after that.
If the third day falls on a Saturday, Sunday, or
legal holiday, the tenant has until the end of the
next business day to correct the violation (if the
notice was conditional) or move. You cannot file
your suit on that business day, but must wait until
the day after that.
EXAMPLE: On November 11, Manuel personally
served Maria with a conditional three-day notice
at home. The first day after service is Friday the
12th, the second day is Saturday the 13th, and the
third day is Sunday the 14th. Since the third day
falls on a Sunday, Maria has until the end of the
next business day—Monday the 15th—to correct
the lease violation or leave. Only on the 16th can
Manuel file suit.
Once you have waited the requisite period, and the
tenant has failed to leave (or correct the violation if
your notice was conditional), you can proceed to the
next phase, which is filing an eviction complaint. We
tell you how to do this in Chapter 6.
Eviction Without a Three-Day
or Other Termination Notice
Lease Expiration .......................................................................................................... 54
Reminding the Tenant Before the Lease Expires ...................................................... 54
Is the Tenancy for a Fixed Term? ............................................................................. 55
Must You Have a Reason for Not Renewing a Lease? .............................................. 55
How to Proceed ..................................................................................................... 56
Termination by the Tenant ........................................................................................... 56
Checklist for Uncontested “No-Notice” Eviction ......................................................... 56
C H A P T E R
5
54 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
T
here are just two situations in which you may
file an eviction lawsuit against a tenant without
first giving a written three-day, 30-day, or 60-day
notice. They are:
when the tenant refuses to leave after a fixed-
term lease expires, and you haven’t renewed it or
converted it into a month-to-month tenancy by
accepting rent after expiration of the lease term,
and
when your month-to-month tenant terminates the
tenancy by giving you a 30-day notice, but then
refuses to move out as promised.
Rent control ordinances requiring just cause for
eviction in many cities limit evictions or add
requirements for eviction. Be sure to check the Rent
Control Chart in Appendix 1 and a copy of your city’s rent
control ordinance if your property is subject to rent control.
Lease Expiration
Unlike a month-to-month tenancy, a fixed-term tenancy
ends on a definite date, stated in the lease. No further
notice is necessary. However, unless you are careful
you may find yourself inadvertently renewing the lease
or converting it into a month-to-month tenancy. Here
are the basic rules:
If you simply continue to accept monthly rent
after the termination date, the fixed-term tenancy
is automatically converted to a month-to-month
tenancy. (Civ. Code § 1945.) It must be terminated
with a 30-day or 60-day notice. (See Chapter 3.)
If the lease has a renewal provision, your
acceptance of rent may automatically operate to
renew the lease for another full term.
EXAMPLE: Masao rented his house to Yuko under
a six-month lease for January 1 through June 30.
Although Masao assumed Yuko would leave on
June 30, Yuko is still there the next day. When
she offers Masao the rent on July 1, Masao accepts
it, believing this is preferable to filing an eviction
lawsuit, but tells Yuko she can stay only a month
more. At the end of July, however, Yuko’s lawyer
tells Masao that Yuko is entitled to stay under her
now month-to-month tenancy until and unless
Masao terminates it with a proper 30-day notice.
Masao gives Yuko a written 30-day notice on July
31, which means Yuko doesn’t have to move until
August 30.
In this example, Masao could have given Yuko a
one-month extension without turning the tenancy into
one from month to month. He need only have insisted
that Yuko, as a condition of staying the extra month,
sign a lease for a fixed term of one month, beginning
on July 1 and ending on July 31.
Reminding the Tenant Before the
Lease Expires
To avoid an inadvertent extension of the lease or its
conversion into a month-to-month tenancy, it is always
a good idea to inform a fixed-term tenant, in writing
and well in advance, that you don’t intend to renew
the lease. While not required, such a notice will prevent
a tenant from claiming that a verbal extension was
granted. A fixed-term tenant who knows a month or
two in advance that you want her out at the end of a
lease term is obviously in a good position to leave on
time. A tenant who realizes that the lease is up only
when you refuse her rent and demand that she leave
immediately is not. Your letter might look something
like this.
CHAPTER 5: EVICTION WITHOUT A THREE-DAY OR OTHER TERMINATION NOTICE 55
Notice to Tenant That Lease Will Not Be Renewed
November 3, 20xx
950 Parker Street
Berkeley, CA 94710
Leo D. Leaseholder
123 Main Street, Apt. #4
Oakland, CA 94567
Dear Mr. Leaseholder:
As you know, the lease you and I entered into on
January 1 of this year for the rental of the premises
at 123 Main Street, Apartment 4, Oakland, is due to
expire on December 31, slightly less than two months
from now.
I have decided not to extend the lease for any period
of time, even on a month-to-month basis. Accordingly,
I will expect you and your family to vacate the
premises on or before December 31. You have the
right to request an initial move-out inspection,
and to be present at that inspection, provided you
request it no more than two weeks prior to your
move-out date. I will return your security deposit to
you in the manner prescribed by Section 1950.5 of
the California Civil Code, within three weeks after
you move out. If I deduct you also have the right to
receive copies of invoices or receipts for work needed
to remedy damage beyond normal wear and tear or to
perform necessary cleaning.
Sincerely,
Lenny D. Landlord
Lenny D. Landlord
The letter isn’t a legally required notice, but is just
sent to show your intent to assert your right to possession
of the property at the expiration of the lease. (However,
the part of the letter telling the tenant of her right to
an initial move-out inspection and to be present at it is
legally required, as is the part concerning the tenant’s
right to invoices and receipts. See The California
Landlord’s Law Book: Rights and Responsibilities,
Chapters 5 and 18.) It doesn’t have to be served in any
particular way. It can be mailed first class. However, if
you’re afraid the tenant will claim she never received
the letter, you may want to send it certified mail, return
receipt requested.
Is the Tenancy for a Fixed Term?
If you want to evict a tenant who stays after her lease
expires, the first question to ask yourself is whether
or not the tenant actually did have a lease—or, more
accurately, a fixed-term tenancy. Since the titles of
standard rental forms are often misleading (a rental
agreement may be called a “lease” or vice versa),
you should look at the substantive provisions of the
document if you are in doubt. (We discuss this in detail
in Volume 1, Chapter 2.)
To summarize, if the agreement lists either a specific
expiration date or the total amount of rent to be
collected over the term, chances are it’s a lease. For
example, a clearly written lease might use this language:
The term of this rental shall begin on ,
20 , and shall continue for a period of
months, expiring on , 20 .
As discussed above, the big exception to the rule
that no notice is required to end a fixed-term tenancy
is when you have, by word or action, allowed the lease
to be renewed, either for another full term (if there’s
a clause to that effect in the lease) or as a month-to-
month tenancy (if you continued to accept monthly
rent after the end of the term).
Must You Have a Reason for Not
Renewing a Lease?
A landlord’s reason for refusing to renew a lease is
treated the same way as is a landlord’s reason for
terminating a month-to-month tenancy with a 30-day
or 60-day notice. (See Chapter 3.) The general rule
is that (except in certain cities with rent control) you
don’t have to give a reason for refusing to renew the
lease. (If you’re in a rent control city that requires just
cause for eviction, read Chapter 3.) However, your
refusal may not be based on retaliatory or discriminatory
motives. Laws against illegal discrimination apply to
nonrenewal of fixed-term tenancies to the same extent
that they apply to termination of month-to-month
tenancies.
In rent control cities with just cause ordinances,
expiration of a fixed-term lease is generally not a
basis for eviction, unless the tenant refuses to sign a new
one on essentially the same terms and conditions. Most
56 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
ordinances don’t require you to give the tenant any specific
kind of notice, although San Francisco, Thousand Oaks,
and West Hollywood require that the tenant be requested
in writing to sign the new lease. (See Appendix 1.)
The best practice is to personally hand the tenant a
letter, at least 30 days before the lease expires, requesting
that she sign the new lease (attached to the letter) and
return it to you before the current one expires. Be sure to
keep a copy of the letter and proposed new lease for your
own records. Even if all this isn’t required by your city,
it will make for convincing documentation if the tenant
refuses to sign and you choose to evict for this reason.
How to Proceed
You may begin an unlawful detainer suit immediately if
all of the following are true:
You conclude that your tenant’s fixed-term tenancy
has expired.
You have not accepted rent for any period beyond
the expiration date.
The tenant refuses to move.
Instructions on how to begin the suit are set out in
Chapter 6.
Termination by the Tenant
You can also evict a tenant without written notice when
the tenant terminates a month-to-month tenancy by
serving you with a legally valid 30-day notice but refuses
to leave after the 30 days. (As we saw in Chapter 3,
although you must give 60 days’ notice of termination
of tenancy to a tenant who has lived in the premises
a year or more, he or she need only give you 30 days’
notice.) Again, if you accept rent for a period after the
time the tenant is supposed to leave, you’ve recreated
the tenancy on a month-to-month basis and cannot use
this chapter.
If only one of several cotenants (see The California
Landlord’s Law Book: Rights & Responsibilities, Chapter
10) terminates the tenancy, the others may stay unless
the tenant who signed the notice was acting on their
behalf as well.
Because the tenant’s notice may be unclear in this
respect or may be invalid for other reasons (such as
failure to give a full 30 days’ notice), some landlords
follow a tenant’s questionable termination notice with
a definite 30-day notice of their own. This avoids the
problem of relying on a tenant’s notice, rerenting the
property and then finding, after the tenant has changed
her mind and decided to stay, that the notice is not
legally sufficient to terminate the tenancy. However,
this technique is no longer possible if the tenant has
stayed a year or more, in which case a 60-day notice is
required.
If you choose not to serve your own 30-day or 60-day
notice and instead want to evict on the basis that the
tenant has not vacated in accordance with her 30-day
notice, proceed to Chapter 6 for how to file an unlawful
detainer complaint. If you do decide to serve a 30-day
or 60-day notice of your own, turn to Chapter 3.
Checklist for Uncontested
“No-Notice” Eviction
Here are the steps required in this type of eviction,
assuming the tenant does not answer your unlawful
detainer complaint (that is, the tenant defaults). At this
point, much of the outline may not make sense to you,
as you have not yet read the chapters on filing the
unlawful detainer complaint, taking a default judgment,
or enforcing the judgment. As you proceed through
those chapters (or Chapter 8, if the tenant contests your
action), you may want to return to this chapter to keep
in touch as to where you are in the process.
CHAPTER 5: EVICTION WITHOUT A THREE-DAY OR OTHER TERMINATION NOTICE 57
Checklist for Uncontested “No-Notice” Eviction
Step Earliest Time to Do It
1. Prepare the Summons(es) and Complaint and make
copies. (Chapter 6)
When it’s apparent the tenant(s) won’t leave on time;
don’t sign and date it until the day indicated below in
Step 3.
2. File the Complaint at the courthouse and have the
Summons(es) issued. (Chapter 6)
The fi rst day after the lease term or tenant’s notice
period expires.
3. Have the sheriff, the marshal, or a friend serve the
Summons and Complaint. (Chapter 6)
As soon as possible after fi ling the Complaint and
having the Summons(es) issued.
4. Prepare Request for Entry of Default, Judgment,
Declaration, and Writ of Possession. (Chapter 7)
While youre waiting for fi ve-day (or 15-day, if Complaint
not personally served) response time to pass.
5. Call the court to fi nd out whether or not tenant(s) has
led written response.
Just before closing on the fi fth day after service of
Summons, or early on the sixth day. (Do not count
holidays that fall on weekdays, however. Also, if fi fth
day after service falls on weekend or holiday, count the
rst business day after that as the fi fth day.)
6. Mail copy of Request for Entry of Default to tenant(s),
le original at courthouse. Also fi le Declaration and
have clerk issue judgment and writ for possession of
the property. (Chapter 7)
Sixth day after service of Summons and Complaint.
(Again, count fi rst business day after fi fth day that falls on
weekend or holiday.)
7. Prepare letter of instruction for, and give writ and
copies to, sheriff or marshal. (Chapter 7)
Sixth day after service of Summons and Complaint.
(Again, count fi rst business day after fi fth day that falls
on weekend or holiday.)
8. Change locks. As soon as tenant vacates.
For Money Judgment
9.
Prepare Request for Entry of Default, Judgment, and, if
allowed by local rule, Declaration in Lieu of Testimony.
(Chapter 7)
As soon as possible after property is vacant.
10. Mail Request for Entry of Default copy to tenant, fi le
request at courthouse. If Declaration in Lieu of Testimony
allowed, fi le that, too, and give clerk judgment and
writ forms for money part of judgment. If testimony
required, ask clerk for default hearing. (Chapter 7)
As soon as possible after above.
11. If testimony required, attend default hearing before
judge, testify, and turn in your judgment form for entry
of money judgment. (Chapter 7)
When scheduled by court clerk.
12. Apply security deposit to cleaning and repair of
property, and to any rent not accounted for in
judgment, then apply balance to judgment amount.
Notify tenant in writing of deductions, keeping a copy.
Refund any balance remaining. If deposit does not
cover entire judgment, attempt to collect balance of
judgment. (Chapter 9)
As soon as possible after default hearing. Deposit must
be accounted for within three weeks of when the tenants
vacate.
Filing and Serving Your Unlawful
Detainer Complaint
How to Use This Chapter ............................................................................................ 60
When to File Your Unlawful Detainer Complaint ........................................................ 60
Where to File Suit ....................................................................................................... 60
Court Locations ...................................................................................................... 61
Other Courts .......................................................................................................... 61
Preparing the Summons .............................................................................................. 61
Preparing the Complaint ............................................................................................ 65
Preparing the Civil Case Cover Sheet .......................................................................... 78
Getting the Complaint and Summons Ready to File..................................................... 80
Filing Your Complaint and Getting Summonses Issued ................................................ 82
Serving the Papers on the Defendant ........................................................................... 82
Who Must Be Served.............................................................................................. 82
Service on Unknown Occupants (Optional) ............................................................ 82
Who May Serve the Papers ..................................................................................... 83
How the Summons and Complaint Copies Are Served ........................................... 84
Filling Out the Proof of Service of Summons Form ................................................. 89
What Next? ................................................................................................................. 94
C H A P T E R
6
60 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
A
fter you have legally terminated your tenant’s
tenancy by properly serving the appropriate
termination notice (or the tenancy has ended
because a lease expired or the tenant terminated it
himself), you can begin an unlawful detainer lawsuit to
evict the tenant. This chapter tells you how to prepare
and file a Complaint and Summons, the documents that
initiate your lawsuit.
How to Use This Chapter
The reason you’re evicting (nonpayment of rent, for
example) and the kind of notice you use to terminate
the tenancy (Three-Day Notice to Pay Rent or Quit,
for example) determine the actual wording of your
unlawful detainer Complaint. To keep you from getting
confused, we label the parts of our discussion that
apply to each type of eviction.
As you go through the instructions on how to fill
out the Complaint, simply look for the number of
your “home” chapter (the one you used to prepare the
termination notice) and start reading. You needn’t pay
any attention to the material following the other symbols.
Key to Symbols in This Chapter
Evictions based on nonpayment of rent—Three-Day
Notice to Pay Rent or Quit (Chapter 2)
Evictions based on a 30-day or 60-day notice
(Chapter 3)
Evictions based on lease violations, damage, or
nuisance—Three-Day Notice to Quit or Three-Day
Notice to Perform Covenant or Quit (Chapter 4)
Evictions based on termination of tenancy without
notice (Chapter 5).
If a paragraph is relevant only to certain types of
evictions, only the appropriate symbols will appear.
In addition, we occasionally refer you to the chapter
you started with (for example, Chapter 2 for evictions
based on nonpayment of rent). We also alert you to the
special requirements of rent control ordinances.
Okay, let’s start.
When to File Your Unlawful
Detainer Complaint
If you terminated the tenancy with
a three-day, 30-day, or 60-day
notice, you can file your unlawful detainer Complaint
when the notice period expires. You must be careful
not to file prematurely. If you file before the notice
period is over, there is no basis for the suit because
the tenancy was never properly terminated, and if the
tenant files a written response to your lawsuit, you will
lose.
It is therefore very important to correctly calculate
the length of the notice period. We explained how to
do this in the chapter you started out in (for example,
Chapter 2 for evictions based on nonpayment of rent,
Chapter 3 for evictions based on a 30-day notice). If
necessary, go back to the chapter covering your type of
eviction and review how to determine when the notice
period ends. Then return here for instructions on how
to fill in and file your unlawful detainer Complaint.
If, as discussed in Chapter 5, the tenancy has already
ended without a three-, 30-, or 60-day notice,
that is, if a lease has expired or the tenant terminated the
tenancy with a proper notice to you, you may file your
Complaint at any time.
Where to File Suit
Until recently, California had two levels of civil trial
courts: Municipal Courts, which heard cases involving
less than $25,000, and Superior Courts, which handled
cases over that amount. Because all residential evictions
for nonpayment of rent involved much less than $25,000,
they were heard in Municipal Court.
In November 1998, the voters amended the California
Constitution to allow each county to abolish its Municipal
Courts and consolidate them with the Superior Courts.
All California counties have done so. Now, there are
no more “Municipal” courts, only Superior Courts and
their various “branches” or “divisions,” some of which
were formerly Municipal Courts. (Because this change
is relatively new, some branches and divisions continue
to have “Municipal Court” building signs and telephone
listings.)
CHAPTER 6: FILING AND SERVING YOUR UNLAWFUL DETAINER COMPLAINT 61
Court Locations
Most large counties divide their Superior Courts into
“divisions” or “branches.” (A notable exception is San
Francisco, whose Superior Court has no divisions or
branches.)
All California courts have Internet websites. You
can reach them by going to a central website: www.
courtinfo.ca.gov/courts/trial. Once you get to this main
website, you’ll see links to the superior courts.
File your lawsuit in the division or district where the
property is located. To make sure you have the right
court (some handle only criminal matters), call the civil
clerk of the superior court for the division or district in
which you think your rental property is located. You
can also find the court’s address and phone number in
the telephone book under “courts or “superior court.”
Other Courts
In the past, unlawful detainer lawsuits were sometimes
filed in small claims courts and justice courts. This is
no longer true. Small claims courts do not hear eviction
cases. (C.C.P. § 116.220.) In November 1994, the State
Constitution was amended to rename justice courts as
municipal courts (Const. Art. VI, § 5), all of which are
also now Superior Courts.
Preparing the Summons
The first legal form that you’ll need to start your lawsuit
is the Summons. The Summons is a message from the
court to each defendant (person being sued). It states
that you have filed a Complaint (see “Preparing the
Complaint,” below) against the defendant, and that if
there is no written response to the Complaint within five
days, the court may grant you judgment for eviction and
money damages.
A blank, tear-out version of the Summons and Proof
of Service is in Appendix 3. The CD-ROM also
includes this form. Instructions for using the CD are in
Appendix 2.
If you photocopy the tear-out form in Appendix 3
and use both sides of the paper, or make a double-
sided print from the CD-ROM, be sure that the front
and back are in the same upside down relation to each
other as is the form in the back of this book. The form
is filled out in the same way no matter what the ground
for the eviction you are using. Using a typewriter, fill it
out as follows:
Step 1: “NOTICE TO DEFENDANT .
You should name as defendants the following individuals:
All adults who live in the property, whether or
not you made any agreement with them; and
Any tenants who entered into the original rental
agreement and have since sublet the property.
(Such tenants are still legally in possession of the
property through their subtenants.) If none of
the original tenants is there, however, the current
tenants are probably “assignees,” not subtenants,
and you shouldn’t name the original tenants
as defendants. (See The California Landlord’s
Law Book: Rights & Responsibilities, Chapter 10,
for more discussion of the subtenant/assignee
distinction.)
It is not enough to name the person you think of as
the “main” tenant. For example, if a husband and wife
reside on the property and are listed as tenants in your
lease, and the wife’s brother also lives there, you must
list all three as defendants. The sheriff or marshal will
not evict any occupant not named as defendant who
claims to have moved in before you filed suit. You may
then have to go back to court to evict the person you
forgot to sue. (Meanwhile, this person will be free to
invite the evicted tenants back as “guests.”)
Also, below the defendants’ names, type “DOES 1
to 5.” This phrase indicates that you are also naming
unknown defendants in your lawsuit, just in case you
later find out that there are unauthorized occupants
living on the premises in addition to the known tenants.
We discuss this in more detail in “Preparing the
Complaint,” Item 5.
Step 2: “YOU ARE BEING SUED BY PLAINTIFF
.
Type in the name of the plaintiff, or person suing. Here
are the rules to figure out who this should be:
1. If you are the sole owner of the property, you
must be listed as plaintiff (but see rule (4), below).
2. If there are several owners, they don’t all have to
be listed—the co-owner who rented to the tenant,
62 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
or who primarily deals with the manager, if there
is one, should be listed.
3. The plaintiff must be an owner of the property
(such as your spouse) or have some ownership
interest, such as a lease-option. A nonowner
manager or property management firm cannot be a
plaintiff. (See C.C.P. § 367.) Some property managers
and management companies have successfully
brought unlawful detainer actions in their own
behalf, without being called on it by a judge.
Still, a competent tenant’s attorney may raise this
issue on occasion and win, perhaps even getting
a judgment against the manager or management
company for court costs and attorney’s fees.
4. If the lease or rental agreement lists a fictitious
business name (for example, “Pine Street
Apartments”) as the landlord, you cannot sue
(either under that name or under your own
name) unless the business name is registered
with the county.
(See Bus. & Prof. Code § 17910
and following.) If the name is registered, list
it as the plaintiff if the property is owned by a
partnership. If you own the property alone but
use the business name, put your name followed
by “dba Pine Street Apartments.” (The dba means
“doing business as.”) If the name isn’t registered,
go down to the courthouse and get the process
started. This involves filling out a form, paying a
fee, and arranging to have the name published.
EXAMPLE: Jack Johnson and Jill Smith, a
partnership named “Jack & Jill Partnership,”
own a five-unit apartment building they call
Whispering Elms.” Their rental agreements
list Whispering Elms as the landlord, and the
name is properly registered with the county as
a fictitious business name. They should enter
“Jack Johnson and Jill Smith, a partnership, dba
Whispering Elms” as the plaintiff.
EXAMPLE: Jill Smith owns the building herself,
but her rental agreements list Whispering Elms
as the landlord, and the name is on file with
the county. The plaintiff in her eviction suit
should be “Jill Smith, dba Whispering Elms.”
5. If a corporation is the owner of the property,
the corporation itself must be named as plaintiff
and represented by an attorney. Even if you’re
president and sole shareholder of a corporation
that owns the property, unless you’re a lawyer
you cannot represent the corporation in court.
(Although C.C.P. § 87 seems to allow this, this
statute was declared unconstitutional in Merco
Construction Engineers, Inc. v. Municipal Court
(1978) 21 Cal. 3d 724, 147 Cal. Rptr. 631.)
Step 3: (item 1 on the form)
“The name and address of the court is
.
Put the name and street address of the court, “SUPERIOR
COURT OF CALIFORNIA,” the county, and the division
or branch in which your rental property is located. (See
above.)
EXAMPLE: Your property is located in the City of
Oakland, in Alameda County. Oakland is in the
“Oakland-Piedmont-Emeryville” division, whose
Superior Court is located at 600 Washington Street,
Oakland. You should type in:
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
OAKLAND-PIEDMONT-EMERYVILLE DIVISION
600 Washington Street
Oakland, CA 94607
Step 4: “CASE NUMBER .
Leave this space blank. The court clerk will fill in the
case number when you file your papers.
Step 5: (item 2)
“The name, address, and telephone
number of plaintiffs attorney, or plaintiff
without an attorney, is .
Place your name and mailing address along with a
telephone number at which you can be reached.
Since your tenant will receive a copy of the Summons,
he will see this address (to which the tenant must mail
a copy of any written response) and telephone number.
You may prefer to list a business address or post office
box and/or a business telephone number.
CHAPTER 6: FILING AND SERVING YOUR UNLAWFUL DETAINER COMPLAINT 63
TERRANCE D. TENANT,
TILLIE D. TENANT, and
DOES 1 through 5
LENNY D. LANDLORD
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES,
110 N. Grand Avenue, Los Angeles, CA 90012
LENNY D. LANDLORD, 12345 Angeleno St., Los Angeles, CA 90010. 213-555-6789
X
X
64 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
LENNY D. LANDLORD
TERRANCE D. TENANT, et al
CHAPTER 6: FILING AND SERVING YOUR UNLAWFUL DETAINER COMPLAINT 65
Step 6: (item 3)
An unlawful detainer assistant (B&P
6400-6415) did not did for
compensation give advice or assistance
with this form.
A nonattorney who is paid to fill out unlawful detainer
paperwork must be registered and bonded. This law
does not apply, however, to property owners or to
managers who prepare such forms for their employer
in the ordinary course of their duties (neither does it
apply to attorneys). If you are such a property manager
or owner, put an X next to the words “did not,” and
leave Item 6, on the second page, blank (but complete
the Caption, as explained below). If you are paying
a paralegal or other person to fill out or otherwise
process your papers (other than just having a process
server serve them), or to advise you on filling out the
forms, he or she must be registered with the county
and bonded, and the “did” box must be checked. That
person’s name, address, phone number, and registration
information must then be listed on the next page of
the Summons form. Provide the information requested,
and fill out the box at the top of the page by entering
the plaintiff’s and defendants’ names, as you did at the
top of the summons. You will need to file both pages
of the Summons, even if page 2 is blank except for the
Caption (which will be the case for those who did not
use an assistant).
Step 7: (item 4)
“NOTICE TO THE PERSON SERVED: You
are served…”
This part of the Summons is for the process server to
complete. The server needs to identify the defendant
as an individual or as someone who represents a
business entity. In residential eviction proceedings, the
defendant will always be an individual, so we have
gone ahead and preprinted the form with an X in Box
1. The process server will complete the rest of the form
when he or she completes the service. (See below
for more information on serving the Summons and
completing this part of the form.)
Step 8: Complete the Caption on Page Two.
Enter the names of the plaintiff(s) and defendant(s), just
as you did when filling out the top of the form on page
one. Do so even if you won’t be filling out Item 6 on
this page (see instructions for Step 9).
Step 9: (Item 6)
If you used an unlawful detainer assistant,
supply the information called for.
Leave these items blank if you did not use an assistant.
Preparing the Complaint
In the unlawful detainer Complaint, you allege why the
tenant should be evicted. The Complaint also formally
requests a judgment for possession of the premises and
any sums which you may be owed as back rent (in
nonpayment of rent evictions), damages, court costs, and
attorney fees. The original of your unlawful detainer
Complaint is filed with the court. A copy is given to
(served on) each defendant along with a copy of the
Summons. (See below.) Together, filing and serving the
Complaint and Summons initiate the lawsuit.
To fill out the Complaint correctly, you need to know
whether or not your property is located in an area
covered by rent control. To find this out, consult the
list of rent control cities in the Rent Control Chart in
Appendix 1. Many rent control ordinances that require
just cause for eviction require that the Complaint (as
well as the three-, or 30-, or 60-day notice) include
a specific statement of reasons for the eviction. This
requirement is satisfied by attaching a copy of the
notice to the Complaint and by making an allegation
(that is, checking a box; see Item 6c, below) in the
Complaint that all statements in the notice are true. Some
ordinances also require Complaints to allege compliance
with the rent control ordinance. If you don’t comply
with these requirements, the tenant can defend the
unlawful detainer suit on that basis.
Although many of these specific rent control require-
ments are listed in Appendix 1, we can’t detail all
the rent control ordinance subtleties, and we can’t
guarantee that your ordinance hasn’t been changed
since this book was printed. Therefore, it is absolutely
essential that you have a current copy of your
66 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
ordinance and rent board regulations at the ready when
you’re planning an eviction in a rent control city.
As with the Summons, the unlawful detainer
Complaint is completed by filling in a standard form,
which is fairly straightforward. But don’t let this lull
you into a false sense of security. If you make even
a seemingly minor mistake, such as forgetting to
check a box, checking one you shouldn’t, or filling
in wrong or contradictory information, it will increase
the chances that your tenant can and will successfully
contest the action, costing you time and money. Pay
very close attention to the following instructions. This
chapter includes directions on filling in each item of the
Complaint plus a completed sample form.
A blank, tear-out version of the Complaint is in
Appendix 3. The CD-ROM also includes this form.
Instructions for using the CD are in Appendix 2.
If you make a double-sided photocopy of the tear-
out Complaint, or make a double-sided print using
the CD-ROM, be sure that the copies you make have
the front and back in the same seeming upside-down
relation to one another as the forms in the back of this
book, or a fussy court clerk may refuse to accept your
papers for filing.
At the top of the form, type
your name, address, and
telephone number in the first box that says Attorney or
Party Without Attorney. After the words “Attorney For,”
we have preprinted the form to say “Plaintiff in Pro
Per,” to indicate that you’re representing yourself. In the
second box, you will need to fill in the county, division,
and court address, the same as you put on the front
of the Summons. In the third box, fill in the plaintiff’s
(your) and defendants’ names in capital letters. As with
the Summons, leave blank the boxes entitled “FOR
COURT USE ONLY” and “CASE NUMBER.”
Put an X in the box next to the space labeled “DOES
1 to ,” and put “5” in the space after that. This
allows you to name five more defendants later, if, for
example, you find out the names of unauthorized
occupants of the premises.
If you want to name more defendants later, you can
amend (change) your Complaint and add the names
of the new defendants in exchange for each of your
fictional “Doe” defendants.
Put an X in the two boxes next to the words “ACTION
IS A LIMITED CIVIL CASE” and the words “does not
exceed $10,000.” Do not check any other boxes in this
area. This tells the clerk to charge you the lower filing
fee (around $140) for a case involving a relatively small
amount of money. (If you don’t check these boxes, or
check the wrong ones, you could be charged up to
$275.)
Item 1: PLAINTIFF and DEFENDANT Names
Type your name after the
words “PLAINTIFF (names
each):” and type the defendants’ names after the words
“DEFENDANT (names each):,” using upper case for
the first letter of each name and lower case for the
remainder (Joe Smith).
Item 2: Plaintiff Type
Item 2a: State whether the
plaintiff is an individual, a
public agency, a partnership, or a corporation. If, as in
most cases, the plaintiff is an adult individual—you—
who is an owner of the property, type an X in box (1)
next to the words “an individual over the age of 18
years.”
Do not check the box next to the words “a partner-
ship” unless you listed the partnership as the plaintiff
on the Summons. (See Step 2 in “Preparing the
Summons,” above.)
Do not check the box next to the words “a corpora-
tion.” Corporate landlords must be represented by an
attorney—in which case you should not be doing the
eviction lawsuit yourself. (See above.)
Item 2b: Type an X in
the box if you included
a fictitious business name when you identified the
plaintiff in the Summons (see Step 2 in “Preparing the
Summons,” above). Type the fictitious business name in
the space provided.
CHAPTER 6: FILING AND SERVING YOUR UNLAWFUL DETAINER COMPLAINT 67
Item 3: Address of Rental Property
List the street address of the
rental property, including
apartment number if applicable, and the city and
county in which it is located.
EXAMPLE: 123 Main Street, Apartment 4, San Jose,
County of Santa Clara.
Item 4: Plaintiffs Interest
If you are an owner of the
property, type an X in the
box next to the words “as owner. If you have a lease-
option on the property and rent it to the tenants, check
the “other” box and type in “Lessor.”
Item 5: Unknown Defendants
You don’t need to do any-
thing here. This allegation
applies only if there are unauthorized subtenants or
long-term “guests in the property, but you don’t know
their names. If you later learn the real name of a “John
Doe,” this allegation makes it easier for you to file
an “amended” Complaint, giving the correct name(s).
Filing an amended Complaint gets a bit tricky. If you
need help, contact a lawyer to help you.
Item 6: Landlord and Tenants Agreement
Item 6a: This item calls for
basic information about the
terms of the tenancy.
On the first line (beginning with “On or about”), fill
in the date on which you agreed to rent the property to
your tenant. This is the date the agreement was made, not
the date the tenant moved in. If a written lease or rental
agreement is involved, the date should be somewhere
on it. If it’s an oral agreement and you can’t remember
the exact date, don’t worry. The approximate date is
okay.
It’s very common for tenants with leases to stay
beyond the lease expiration date, with the full know-
ledge and blessing of the landlord. When the landlord
continues to accept rent, these tenants become month-
to-month tenants, subject to the same terms and
conditions of the original lease. If the tenant you’re
evicting stayed on in this way, use the date that the
original lease was signed. If you asked this tenant to
sign a new lease when the old one expired (this is the
better practice), use the date that the latest lease was
signed, and refer to this lease for all other information
that’s called for in the Complaint.
Then, on the same line, fill in the names of the
persons with whom you made the oral agreement or
who signed a written agreement or lease. In the case
of an oral agreement, list the name(s) of the person(s)
with whom you or a manager or other agent originally
dealt in renting the property. Don’t worry if the list of
people with whom the oral or written agreement was
made does not include all the current adult occupants.
Occupants who didn’t make the original agreement are
subtenants or assignees (see The California Landlord’s
Law Book: Rights & Responsibilities, Chapter 10) and are
accounted for in Item 6c (below).
If some of the original tenants have moved out,
they should not be listed in Item 6a, since you are
not permitted to name them as defendants. You list
here only those person(s) who entered into the rental
agreement and still live in the property.
The boxes after line “(1)” of Item 6a (beginning with
the words “agreed to rent the premises as a”) indicate
the type of tenancy you and your tenant(s) originally
entered into.
If the tenancy was from month to month (see
Chapter 3) check that box.
If the tenancy was not originally month to month,
type an X in the “other tenancy” box.
For a fixed-term tenancy, type “fixed-term tenancy
for months,” indicating the number of
months the lease was to last.
The “other tenancy” box can also be used to
indicate periodic tenancies other than from month
to month such as week-to-week tenancies.
If the tenancy began for a fixed period (one year
is common), but the term has expired and the
tenancy is now month to month, indicate it as it
originally was (fixed-term). You can note in Item
6d (see below) that the tenancy subsequently
changed to month to month.
The boxes after line “(2)” in Item 6a (beginning
with the words “agreed to pay rent of”) has a space for
68 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
LENNY D. LANDLORD
12345 ANGELENO STREET
LOS ANGELES, CA 90010
213-555-6789
Plaintiff in Pro Per
LOS ANGELES
110 North Grand Avenue
same
Los Angeles, CA 90012
CENTRAL DISTRICT/DOWNTOWN BRANCH
LENNY D. LANDLORD
TERRENCE D. TENANT, TILLIE D. TENANT
X
5
X
X
X
Lenny D. Landlord
Terrence D. Tenant, Tillie D. Tenant
X
6789 Angel Blvd. Apt. 10, Los Angeles, 90010, Los Angeles County
X
Jan. 1, 2002 Terrence D. Tenant, Tillie D. Tenant
X
850.00
X
X
X
X
CHAPTER 6: FILING AND SERVING YOUR UNLAWFUL DETAINER COMPLAINT 69
you to fill in the amount of the rent when the tenant
originally rented the premises. If the rent has increased
since then, say so in Item 6d (see below). Next indicate
how often the rent was payable (again, when the
tenancy began; changes since then should be indicated
in Item 6d). In the rare cases where the rent was not
payable monthly, put an X in the “other” box and
type in the appropriate period (for example, weekly or
bimonthly).
At line “(3)” of Item 6a, check “first of the month”
if the rent was payable then. If it was payable on any
other day (for example, on the 15th of each month, or
every Monday), instead check the box next to “other
day (specify):” and type in when the rent did come
due.
Item 6b: This item tells
whether the rental agreement
or lease was oral or written and whether you, an agent,
or a previous owner entered into it with the tenant.
Check either the “written” box or the “oral” box on the
first line. If there was a written agreement with the first
tenants, but only an oral agreement with subsequent
occupants, the latter are most likely subtenants under
the written agreement. So you need only check the
“written” box.
Also put an X in one of the four boxes below it.
Check the box labeled “plaintiff” if you—the plaintiff—
signed the written rental agreement or lease or made
the oral agreement with the tenant. If a manager,
agent, or other person did this, check the box labeled
“plaintiff’s agent” instead. If the tenant was renting the
property before you owned it, and you didn’t have
her sign a new rental agreement or lease, she is there
because of some sort of agreement with the previous
owner—in legalese, your “predecessor in interest”—and
you should check that box.
PLAINTIFF and DEFENDANT.
At the top of the reverse side
of the Complaint is a large box labeled “PLAINTIFF
(Name):” and “DEFENDANT (Name):.” Here, type in
capital letters the names of the first-listed plaintiff and
defendant the same way their names are listed on the
front Caption under “PLAINTIFF” and “DEFENDANT.”
Where there are multiple plaintiffs or defendants, you
list only the first one here, followed by “ET AL.”
Item 6c: If the occupants
you’re trying to evict are all
named in Item 6a (because you entered into a written
or oral rental agreement or lease with them), leave box c
blank and go on to Item 6d.
If, however, some of the persons you named as
defendants were not named in Item 6a (for example,
adults who later moved in without your permission),
check box c and one of the three boxes below it to
indicate whether these defendants are “subtenants”
(usually) or “assignees” (rarely). (See The California
Landlord’s Law Book: Rights & Responsibilities, Chapter
10, for a discussion of these terms.)
Here’s a brief explanation.
Subtenants. If any of the original tenants listed in
Item 6a still live in the premises with these defendants,
check the “subtenants” box, because these people are
essentially renting from the original tenants, not from you.
EXAMPLE: Larry rented to Tim and Twyla ten years
ago. Tim and Twyla signed a month-to-month
rental agreement that is still in effect (though Larry
has increased the rent since then). Last year, Twyla
moved out and Twinka moved in with Tim. Larry
never had Twinka sign a new rental agreement.
What is the current status of Tim and Twinka? Tim is
still renting from Larry under the old rental agreement,
but Twinka is actually renting from Tim—even if she
pays the rent to Larry herself. Twinka is a subtenant
and should be listed under Item 6c. Tim and Twyla, the
original tenants, are listed in Item 6a.
Assignees. On the other hand, if none of the original
tenants lives on the premises and you don’t expect any
of them to return, chances are that the current occupants
are “assignees”—unless you had them sign or enter into
a new rental agreement. An assignee is someone to
whom the former tenants have, in effect, turned over
all of their legal rights under the lease.
EXAMPLE: Lana rented one of her apartments to
Toby and Toni five years ago. Three years ago,
Toby and Toni left and, without telling Lana, had
Toby’s cousin Todd move in. Although Lana could
have objected under the rental agreement clause
prohibiting subletting and assignment, she didn’t.
70 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
She accepted rent from Todd, but never had Todd
sign a new rental agreement, so he’s an “assignee”
of Toby’s and Toni’s. In this situation, Lana would
name only Todd as defendant, but list Toby and
Toni as the persons in Item 6a to whom she
originally rented. (This is true even though Item
6a asks you to list “defendants.” Toby and Toni
aren’t actually defendants, because they no longer
live there; the form isn’t perfectly designed for
every situation.) In Item 6c, you should check the
“assignees box to indicate that Todd, not named in
6a, is an assignee of the persons who are named.
Item 6d: Box d should
be checked if there was a
change in any of information provided in Item 6a since
the original tenancy began. For instance, if the rent is
higher now than it was at first, this is the place for you
to say so, especially if your eviction is for nonpayment
of rent and you are seeking unpaid rent. If there have
been several rent increases, list them all, in chrono-
logical order.
EXAMPLE: Leon rented his property on a month-
to-month basis to Teresa on January 1, 2007, for
$800 per month. (This date and former rent amount
should be listed in Item 6a.) On July 1, 2007, Leon
gave Teresa a 60-day notice (required for rent
increases of more than 10%), that her rent would
be increased from $800 to $900 effective September
1, 2007. Leon should check box d under Item 6 and
after the words “The agreement was later changed
as follows (specify):” type the following:
On July 1, 2007, Plaintiff notified defendant in writing
that effective September 1, 2007, the rent would be
increased to $900 each month.
EXAMPLE: Teresa’s neighbor, Juan, moved into
one of Leon’s apartments on January 1, 2007. On
December 1, Leon told Juan his rent would go from
$650 to $700, effective January 1, 2008. However,
Leon forgot to give Juan the required written 30-
day notice. (See The California Landlord’s Law
Book: Rights and Responsibilities, Chapter 14.) Still,
Juan paid the increased rent for several months,
beginning in January 2008. Even though Leon
should have raised the rent with a written notice,
Juan effectively “waived” or gave up his right to
a written notice by paying the increase anyway.
(Note: This may not be true in a rent control city,
especially if the increased rent exceeds the legal
rent for the property.) Now, in June 2008, Juan
won’t pay the rent (or move) and Leon has to sue
him. Check box d under Item 6 and type in the
following:
“On December 1, 2007, plaintiff notified defendant
that effective January 1, 2008, the rent due would be
increased to $700 each month, and defendant agreed
to and did pay the increased rent on its effective
date.
Another common event that should be recorded
in Item 6d is any change in the type of tenancy (for
example, from a fixed-term lease to a month-to-month
tenancy).
EXAMPLE: On June 1, you rented your property
to Leroy for one year under a written lease. Leroy
didn’t leave on June 1 of the following year and
paid you the usual rent of $900, which you accepted.
Although the original tenancy was one for a fixed
term, as should be indicated in Item 6a, it is now
month to month. (See Chapter 5.) Check box d in
Item 6 and type the following:
“On June 1, 2007, after expiration of the lease term,
defendant remained in possession and paid $900
rent, which plaintiff accepted, so as to continue the
tenancy on a month-to-month basis.
Item 6d should also be filled out for changes in the
rental period (for example, from bimonthly to monthly)
and changes in the date when the rent was due (for
example, from the 15th of the month to the first).
Simply put, Item 6d is your chance to bring the court
up to date as to your current arrangements with your
tenants.
You may find that there isn’t enough space on the
Complaint form to type in all the required information
for this item. If you can’t fit it in with three typewritten
lines that go right up against each margin, type the
words “see attachment 6d” and add all the necessary
information on a sheet of white typing paper labeled
“Attachment 6d.” This attachment is stapled to the
CHAPTER 6: FILING AND SERVING YOUR UNLAWFUL DETAINER COMPLAINT 71
Complaint, along with the “Exhibit” copies of the lease/
rental agreement and three-day, 30-day, or 60-day notice
discussed below. (Be sure to add one more page to the
number of pages listed in Item 1 if you do this.)
Item 6e: If the rental
agreement is oral, skip this
box and Item 6f, and go on to Item 7. If the rental
agreement or lease is in writing, put an X in this
box if you have the original or a copy of it. Attach
a photocopy (not a signed duplicate) of the lease or
rental agreement to the Complaint (unless you can’t
find an original or copy). Write “EXHIBIT 1” on the
bottom of the copy. (If you and the tenants signed a
new lease or rental agreement after having signed an
older version, you need only attach a copy of the most
recent lease or rental agreement.) You must include
copies of any written amendments or addenda. Finally,
keep track of the correct number of pages attached
to the Complaint, which you’ll need to list in Item 18
(count two printed sides of one page as two pages).
If you’re seeking to evict because of nonpayment
of rent, you aren’t legally required to attach a
copy, but we think it’s a good practice. If the tenant
contests the lawsuit, the judge who hears the case will be
more favorably impressed with the way you put your case
together if you’ve taken the extra step to attach all relevant
documents.
Item 6f: This question asks
you to explain why, if there
is a written rental agreement or lease, you have not
attached a copy of it to the Complaint. (You’re not
required to do so in rent-nonpayment cases even if
you have a copy, though we suggest that you do if you
have one.) If your rental agreement is oral, skip this
item and go to Item 7. Also skip it if you are attaching a
copy of the rental agreement or lease.
If you haven’t attached a copy of a lease or rental
agreement, put an X in the box next to Item 6f. Also
put an X either in box (1) if you simply don’t have an
original or copy of the lease or rental agreement, or
in box (2) if your lawsuit is based on nonpayment of
rent, and (against our advice) you decide not to attach
a copy.
PLAINTIFF and DEFENDANT.
At the top of the reverse side
of the Complaint is a large box labeled “PLAINTIFF
(Name):” and “DEFENDANT (Name):” Here, type in
capital letters the names of the first-listed plaintiff and
defendant the same way their names are listed on the
front Caption under “PLAINTIFF” and “DEFENDANT.”
Where there are multiple plaintiffs or defendants, you
list only the first one here, followed by “ET AL.”
Item 7: Notice
Check the box immediately follow-
ing the number 7 to indicate that
a notice to quit was served on at least one of the
tenants, and fill in the name of the defendant to whom
the notice was given. If you served more than one
defendant, list all of their names. You will also list the
other names and method of service in Items 7b and 7c,
below.
Leave Items 7 and 7a through 7f blank if your
eviction is being brought under Chapter 5 of this
book (that is, if no notice was given the tenant).
Item 7a: Check box “(1),” labeled “3-day notice
to pay rent or quit.”
Item 7a: Check box “(2)” labeled “30-day notice
to quit” if that is what you used because the
tenancy was for less than a year. (See Chapter 3.) If
you had to give a 60-day notice because your tenant
occupied the premises for a year or more, check box
“(3)” next to the words “other (specify):” and type the
words “60-day notice to quit.”
If you used a 90-day notice of termination of tenancy
because the tenancy was government-subsidized, check
box “(6)” next to the words “Other (specify):” and type
the words “90-day notice to quit.”
Item 7a: Check either the box labeled “3-day
notice to perform covenants or quit” “(4)” (the
conditional notice), or “3-day notice to quit” “(5)” (the
unconditional notice), depending on which type of
notice you served.
72 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Item 7b: List the date the period provided
in your three-day notice expired. This
is the third day, not counting the day the notice was
served, after the three-day notice was personally served
(eighth day for substituted service), except that when
the third (or eighth) day falls on a weekend or legal
holiday, the last day is the next business day. (See
Chapters 2 and 4 for several detailed examples.) If you
used substituted service for your notice or are unsure
of your notice’s expiration date, return to your “home”
chapter (Chapter 2 or 4) and compute the correct
expiration date in accordance with our instructions.
Item 7b: List the date the period provided in
your 30-day or 60-day notice expired. This is
the 30th day (or the 60th day) after the notice was
personally served (don’t count the day the notice was
served), except that when the 30th or 60th day falls
on a weekend or legal holiday, the last day is the next
business day. (See the detailed examples in Chapter 3
to get a better handle on this.) If you used substituted
service or are unsure of the proper expiration date,
return to Chapter 3 and compute the proper expiration
date in accordance with our instructions.
Don’t file until the three, 30, or 60 days have
expired.
Be sure you do not file your papers
with the court (see below) until
after the date you indicate in Item 7b. Otherwise, the
Complaint will be premature, and you may lose the
case and have to pay the tenant’s court costs.
Item 7c: You don’t need to fill in a
box or add information on this one,
which just says that everything in the notice you served
(a copy of which you will attach to the Complaint) is
true.
Item 7d: Put an X in this box. This
indicates that your three-day notice
contained an “election of forfeiture”—legalese for a
statement in the notice that the tenancy is ended if the
notice is not obeyed. The form notices in this book
include a forfeiture statement.
Item 7d: Leave this item blank, since 30-day
and 60-day notices do not require a notice of
forfeiture.
Item 7e: Check this box. Label
the bottom of your copy of the
three- or 30-day notice “EXHIBIT 2” (even if you don’t
have an Exhibit 1), and remember to staple it to your
Complaint. This is essential.
Item 7f: Put an X in box 7f only
if (1) there are two or more
defendants, and (2) you served two or more of them
with the notice on a different date or in a different
manner. (Although the form contemplates checking
this box also if two or more defendants were served
with different notices, we do not recommend such
a procedure.) For example, if Tillie Tenant and Sam
Subtenant were each served with a three-day notice
on a different day, or if one was served personally and
the other served by substituted service and mailing
(see Chapter 2), then Lenny Landlord would check this
box. However, do not check the box if the two or more
defendants are all cotenants on a written lease or rental
agreement and you served just one of them on behalf
of all tenants.
If you check Item 7f, you should also put an X in
Item 8c on the reverse side of the Complaint form. At
this point, the information in Items 8a through 8e on
content and service of the notice will apply only to the
person(s) whose name(s) is listed in Item 7a. You will
have to state on a separate page labeled “Attachment
7f/8c,” how any other persons were served in a
different manner or on a different date. Before doing
that, however, you should turn the Complaint form
over and complete Items 8a and 8b.
Item 7f: Leave Item 7f blank if your eviction is
being brought under Chapter 5 of this book—
that is, if no notice was served on any tenant.
Item 8: Service of Notice
This part of the eviction form
asks for the details on how you
performed service of process. You have a choice: You
can complete Items 8a through 8c as explained below,
CHAPTER 6: FILING AND SERVING YOUR UNLAWFUL DETAINER COMPLAINT 73
or you can demonstrate your service compliance by
checking Item 8d and supplying as Exhibit 3 a written,
signed proof of service indicating when and how the
notice was served. Which method is preferable? We
suggest using Items 8a through 8c, because these
questions prompt you to give the detailed information
(especially important in cases of substituted service or
service by posting and mailing) that a judge needs to
determine whether service was proper. Remember, if
you have multiple defendants served different ways,
you’ll need to add separate attachment pages for each.
On the other hand, you may find it easier to simply
check Item 8d and attach multiple proofs of service for
multiple defendants who were served in different ways
or on different dates, instead of filling out Items 8a–8c
and adding separate attachments. Put an X in the box
after 8a to indicate that a notice was served on your
tenant.
Leave Items 8, 8a and 8b and 8c blank, since no
notice was served on your tenant.
Item 8a: If the defendant listed in
Item 7a was personally served with
the notice, check the first box (next to the words “by
personally handing a copy to defendant on (date):”)
“(1),” and type the date she was handed the notice.
Then go on to Item 8b.
The second box in Item 8a, next to “by leaving a
copy with ...” “(2),” should be checked instead only
if you used “substituted service,” that is, you gave the
notice to someone at the tenant’s home or workplace
and mailed a second copy. On the same line, list the
name (or physical description if name is unknown)
of the person to whom the notice was given. On the
next two lines, fill in the date you delivered the notice,
check a box to indicate whether the notice was served
at the residence or business address, and list the date
the second copy was mailed to the residence address.
Then go on to Item 8b.
If you had to resort to “posting and mailing” service
because you couldn’t find anyone at the defendant’s
home or place of employment, check the third box
next to the words “by posting a copy on the premises
on (date):” “(3)” and insert the date the notice was
posted. Ignore the box by the words “and giving a copy
to a person found residing at the premises.” Below that,
list the date the copy of the notice was mailed to the
residence address. Next, check one of the two boxes
(in front of phrases beginning with “because”) to indicate
why you used posting-and-mailing service. In almost
all residential cases you should check the second box,
next to the phrase “because no person of suitable age
or discretion can be found there.” Leave blank the box
next to the phrase “because defendant’s residence and
usual place of business cannot be ascertained”—after
all, you always know the defendant’s residence address
in a residential eviction.
The fourth box in Item 8a, followed by the words
“not for 3-day notice” in parentheses, obviously
should be used only if your eviction was preceded by
a 30-day or 60-day notice (see Chapter 3) which you
served by certified or registered mail.
Item 8a: The last (fifth) box in
Item 8a should not be checked. It
applies only to some commercial tenancies—a subject
beyond the scope of this book.
Item 8b: Put an X in this box
and again list the name(s) of any
defendant you served with a termination notice (as you
did in Item 7a), only if all of the following are true:
(1) there are two or more defendants, (2) two or more
of the defendants both signed the written lease or
rental agreement, and (3) you did not serve all of the
signers of the lease or rental agreement with a notice.
For example, Tillie Tenant and Terrence Tenant both
signed the rental agreement, and although your Three-
Day Notice to Pay Rent or Quit mentioned them both,
you only served Terrence. (This is permitted under the
case of University of Southern California v. Weiss (1962)
208 Cal. App. 2d 759, 769; 25 Cal. Rptr. 475.) In that
case, Item 7a on the front should list “Terrence Tenant”
as the one served with a notice, Item 6f should not be
checked and Item 8b should be checked. At Item 8b,
“Terrence Tenant” should again be listed as the person
who was served on behalf of the other tenant(s) on the
lease or rental agreement.
Item 8c: If you put an X in box 7f,
you did so because (1) there are
two or more defendants, and (2) you served two or
74 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
LENNY D. LANDLORD
TERRENCE D. TENANT, ET AL
X T
errence Tenant
X
X On Jan. 1, 20xx, plaintiff notified defendants
in writing that effective Feb. 1, 20xx, the rent would be $900.00
X
X
TERRANCE D. TENANT
X
X
X August 5, 20xx
X TERRANCE D. TENNANT
August 8, 20xx
X
X
CHAPTER 6: FILING AND SERVING YOUR UNLAWFUL DETAINER COMPLAINT 75
more defendants with the same notice on a different
date or in a different manner. (You generally will not
check box 7f or 8c if you checked box 8b to indicate
you served one cotenant, but not other written-lease
cotenants.) If you did put an X in box 7f, do so in box
8c also. You will then also need to add an extra piece
of typing paper titled “Attachment 7f/8c to Complaint—
Unlawful Detainer.” On that attachment, you need to
explain how the defendant(s) other than the one whose
name is mentioned in Item 7a was served in a different
manner or on a different date. Use the format of the
wording in Item 8a(1), (2), (3), (4), or (5) [certified mail
service of 30-day or 60-day notice only]. For example,
where Items 7 and 8 show you served Tara Tenant
personally with a three-day notice to pay rent or quit
on September 4, and you served Sam Subtenant on
September 6 by substituted service, boxes 7f and 8c
should be checked, and Attachment 8c would state,
“Defendant Sam Subtenant was served the three-day
notice to pay rent or quit, alleged in Item 7, by leaving
a copy with Tara Tenant, a person of suitable age and
discretion, on September 6, 20xx, at his residence,
and by mailing a copy to him on September 7, 20xx,
because he could not be found at his residence or
place of business.”
Item 8d: If you wish, you may
check this box to indicate that
instead of using Items 8a through 8c above to describe
how the notice was served, you’re attaching as Exhibit
3 a written, signed proof of service indicating when and
how the notice was served. See the discussion at the
beginning of Item 8 for the pros and cons of using Item
8d.
PLAINTIFF and DEFENDANT
At the top of the third page
of the complaint (new second sheet) is another large
box just like the one at the top of the second page
(reverse side of first sheet) of the complaint, labeled
“PLAINTIFF (name):” and “DEFENDANT (name):” As
before, type the names of the first-listed plaintiff, and
first-listed defendant, followed by “et al” if there’s more
than one.
Item 9: Expiration of Lease
Do not use this box. It does not
apply in evictions based on three-
day, 30-day, or 60-day notices.
Check this box if you are proceeding under
Chapter 5 on the grounds that your fixed-term
lease expired. Do not check it if the reason for the
eviction is that the tenant failed to vacate on time after
serving you with a 30-day notice.
Item 10: Rent Due
Put an X in box 10. At the end of the sentence
following the box, put the amount of rent you
demanded in the three-day notice.
Your Complaint will be susceptible to a delaying
motion if it ambiguously states that the rent due was
something other than that stated on the attached three-
day notice, so do not under any circumstances list a
different amount.
Leave this box blank. It is solely
for evictions based on a Three-Day
Notice to Pay Rent or Quit. (See Chapter 2).
Item 11: Daily Rental Value
Check box 11 and list the
daily prorated rent. This is
the monthly rent divided by 30 or, if the rent is paid
weekly, the weekly rent divided by seven. For example,
if the rent is $450 per month, the daily rental value is
$450/30, or $15. Round the answer off to the nearest
penny if it doesn’t come out even. This figure is the
measure of the “damages” you suffer each day the
tenant stays after the end of the rental period.
PLAINTIFF and DEFENDANT
At the top of the third page
of the complaint (new second sheet) is another large
box just like the one at the top of the second page
(reverse side of first sheet) of the complaint, labeled
“PLAINTIFF (name):” and “DEFENDANT (name):” As
before, type the names of the first-listed plaintiff, and
first-listed defendant, followed by “et al” if there’s more
than one.
76 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Rent vs. Damages
The difference between “rent” and “damages” is
illustrated as follows: On February 1, Tim doesnt
pay his landlord Lenny the monthly $900 rent. On
February 6, Lenny serves Tim a three-day notice.
After the three days have elapsed, and Tim still
hasnt paid the rent, the tenancy is terminated.
Lenny brings an unlawful detainer action to enforce
that termination, and gets a judgment against Tim
on March 10. Lenny is still entitled to the $900 rent
for February, since it was all due as rent before the
tenancy was terminated.
Since the termination of the tenancy was
effective in February, Tim owes no “rent” as such for
his stay during March. What Tim does owe Lenny
for those ten days is money to compensate Lenny
for being unable to rerent the property during that
time. Assuming that Lenny could have gotten the
same rent from a new tenant, namely $900 per
month or $30 per day, the “damages” for those ten
days would be $300 in addition to the $900 rent,
for total rent and damages of $1,200.
Item 12: Landlords Right to Statutory Damages
We normally recommend
this box be left blank. By
checking it, you allege in the Complaint that the tenant
is being “malicious” in staying when he or she should
leave, and you are asking for up to $600 in punitive
damages in addition to the rent. (The law does not
allow you to ask for more. Before 1994, a landlord
could recover “treble damages, or three times the
rent the tenant owed, but now you can recover only
$600 if you can convince a judge the tenant acted
maliciously.) If you do check this box, you must then
add an Attachment 11 in which you state—in very
specific detail—the acts of the tenant which you think
show a malicious intent. Because only $600 of a
probably uncollectible judgment is at stake, because the
requirements for alleging and proving malicious intent
are very technical, and because judges seldom award
these types of extra damages, we do not recommend
seeking this sum. Also, demanding extra money based
on the tenant’s maliciousness may provoke a delaying
response on the part of the tenant. You’re probably
better off leaving item 12 blank.
Item 13: Attorney Fees
Put an X in this box only if
you have a written rental
agreement or lease (a copy of which should be attached
to the Complaint—see Item 6e)—and it has a clause
specifically providing that you (or the prevailing party
in a lawsuit) are entitled to attorney’s fees. A clause
referring only to “costs” or “court costs” isn’t enough.
To be entitled to a court judgment for attorney’s fees,
you must also be represented by an attorney. Since
you’re representing yourself, you won’t be entitled to
attorney’s fees even if you win. Still, you should fill in
this part just in case your tenant contests the lawsuit
and you later hire a lawyer.
Item 14: Rent/Eviction Control Ordinance
This box should be checked
only if your property is
subject to a local rent control law or just cause eviction
ordinance. (See “Rent Control and Just Cause Evictions”
in Chapter 3 for a list.) When you put an X in this box,
you declare under penalty of perjury that you have
complied with all rent ceiling, registration, and other
applicable requirements under the ordinance. Be sure
you have. If you haven’t, or if you’re not sure, do some
research. (See The California Landlord’s Law Book:
Rights & Responsibilities, Chapter 4.)
Once you’re sure you are in compliance, type in the
name of the city or county, the title of the ordinance,
and the date it went into effect. Much of this information
is listed in the Rent Control Chart in Appendix 1 of this
volume (as well as The California Landlord’s Law Book:
Rights & Responsibilities, Chapter 4), but because rent
control ordinances are constantly changing, you should
also call the local rent control board for the latest
information.
Item 15: Other Allegations
This box does not have to be
checked in cases based on three-
day, 30-day, or 60-day notices.
CHAPTER 6: FILING AND SERVING YOUR UNLAWFUL DETAINER COMPLAINT 77
Check this box if you’re suing a tenant who won’t
leave after having terminated a month-to-month
tenancy by giving you at least 30 days’ written notice.
You’ll have to add an extra paper titled “Attachment 15”
to the Complaint. Using a blank sheet of typing paper,
type a statement based on this model:
Attachment 15
On (date) , 20 , defendants served
plaintiff a written notice terminating their month-
to-month tenancy no sooner than 30 days from the
date of service of the notice, for the termination to be
effective on
(date) , 20 . That period has
elapsed, and defendants have failed and refused to
vacate the premises.
Extra Required Allegations. Some rent control cities
require landlords to make additional allegations.
For example, Berkeley requires landlords to allege that they
are in compliance with the “implied warranty of habitability.”
Attachment 15 can also be used for this sort of required
allegation. The landlord might allege, “Plaintiff is in full
compliance with the implied warranty to provide habitable
premises with respect to the subject property.
Item 16: Jurisdictional Limit of the Court
This statement just means
you are not asking for more
money than the court has the power to give.
Item 17: Landlord’s Requests
Here you list what you want the court to grant.
Since you want “possession of the premises” and
court costs such as court filing fees, in any unlawful
detainer action, there is no box to check for “a” or “b.”
Put Xs in boxes c, e, and f. Also, put an X in box d if
your lease or rental agreement has an attorney fees
clause. (See Item 13.)
Fill in the amount of past due rent in the space
provided following box c, again making sure this is
the same amount stated in Item 10 and in the three-
day notice. In the space after the word “(date)”: to
the lower right of box f, list the date for the next day
following the rental period for which the rent is due.
EXAMPLE: Larry Landlord served Tanya Tenant with
a three-day notice, demanding $900 rent for the
month of September, or September 1 through 30.
The first day after that rental period is October 1,
20xx. Larry should put that date after “(date:)” in
box f, to ask the court to award him 1/30th of the
monthly rent ($30) for each day after October 1st
that Tanya stays.
EXAMPLE: Louise Landowner served Tom Tenant
with a three-day notice, demanding $1,000 monthly
rent that was due on July 15. Since this rent is due
in advance, it covers July 15th through August 14.
Louise should put the next day after that, August
15, 20xx, after “(date):” in box f.
Put X’s in boxes e and f for evictions based on
both conditional three-day notices to perform
covenant or quit and unconditional three day notices. In
the space after the word “(date):” below box f, list the
day after the three-day notice expiration date you listed
in Item 7b(1). Don’t check box c, since you can only
collect back rent in evictions for nonpayment of rent.
You may, however, put an X in box d if your lease or
rental agreement has an attorney fees clause. (See Item
13.)
Put an X in box f only. In the space after
the word “(date):” below box f, list the
day after the 30-day notice expiration date, or the day
after the fixed-term lease expired. For example, if
you or the tenant gave a 30-day notice on July 1, the
last day the tenant could legally stay was July 31, and
you list August 1, 2007, here. Or, if the tenant’s lease
expired on December 31, 2007 (and you didn’t accept
rent after that), list the next day, January 1, 2007.
Don’t check box c, since it only applies in evictions
for nonpayment of rent. Don’t check box e, which
only applies in evictions based on three-day notices to
quit. (See Chapters 2 and 4.) You may, however, put
an X in box d if your lease or rental agreement has an
attorney’s fees clause. (See item 13.)
Do not check box g unless
you insist on asking for
extra “statutory damages” of up to $600 on account of
the tenant’s malicious conduct, in which case you will
78 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
have also checked Item 12. (Once again, we do not
recommend doing this.)
Do not check box h.
Item 18: Number of Pages Attached
List the number of pages to
be attached to the Complaint,
counting each page of every copy of a rental agreement
or lease (Exhibit 1) and three-day, 30-day, or 60-day
notice (Exhibit 2), as well as any attachments. (Count
each printed side of a piece of paper as a page.) Do
not count the pages of the Complaint. Thus, for a
Complaint that attached a one-page lease and a one-
page three-day, 30-day, or 60-day notice, the number of
added pages should be “2.”
Item 19: Unlawful Detainer Assistant
The law requires that a non-
attorney who is paid to fill
out unlawful detainer paperwork must be registered
and bonded. This law does not apply, however, to
property owners or to managers who prepare such
forms for their employer in the ordinary course of their
duties (neither does it apply to attorneys). If you are
such a property manager or owner, put an X next to
the words “did not” in Item 18, and leave the rest of
the item blank. If you are paying a paralegal or other
person to fill out or otherwise process your papers
(other than just having a process server serve them), or
to advise you on filling out the forms, he or she must be
registered with the county and bonded, and the “did”
box must be checked on Item 18. That person’s name,
address, phone number, and registration information
must then be listed on Item 19 of the Complaint form.
(If you let an unregistered person prepare your forms
for a fee and he or she filled out the “did not” box,
remember, you’re the one declaring, under penalty of
perjury, to the truth of the form when you sign it!)
Verification and Plaintiffs’ Names,
Dates, and Signatures
Type your name in the spaces indicated below Item 19
and, under the heading “VERIFICATION,” type in the
date and sign the Complaint in both places.
The two lines side by side
above the word “Verification”
are the first of two places to sign and type the name(s)
of the plaintiff(s). The name of each person who is
listed on the Complaint (and Summons) as a plaintiff
should be typed in the space to the left. Their signatures
go on the space to the right. For more than one plaintiff,
it’s okay to either separate the names and signatures
by commas, with all names on one line, or to list one
above the other.
Under the “Verification” heading you state under
penalty of perjury that all the allegations in the Com-
plaint are true. A name and signature—but only of one
plaintiff even if there are several—is required here, too.
The plaintiff with the most knowledge about the matter
should type her name and the date in the space to the
left and sign in the space at the right.
Be sure the date you sign is at least
one day after the date in Item 7b
of the Complaint—the date the notice period legally
expired.
If a partnership is named as plaintiff, the verification
printed on the form must be modified. You can do
this by using correction fluid to “white out” the line
of instructions in parentheses just below the word
“Verification,” and typing over it “I am a partner of the
partnership which is.” Then, on the next line, white out
the words “I am.” The verification should then begin “I
am a partner of the partnership which is the plaintiff in
this proceeding ....”
Preparing the Civil Case Cover Sheet
This form must be filed with the court at the same time
as your Complaint. Its purpose is to tell the court what
kind of a civil case you’re filing, and it’s used when
filing any type of civil case. (The second page is full of
information and instructions that are either irrelevant
to your case or unnecessary in light of the information
you’re getting from this book.) We’ve preprinted this
form with all the information needed to tell the court
clerk you’re filing an unlawful detainer action to evict
the tenant from a residence (as opposed to a commercial
building). You need only type in the following
information:
CHAPTER 6: FILING AND SERVING YOUR UNLAWFUL DETAINER COMPLAINT 79
LENNY D. LANDLORD
TERRENCE D. TENANT, ET AL
X
900.00
X 30
X
X
City of Los Angeles, Rent Stabilization Ordinance, enacted April 12, 1979.
X
X 900.00
September 1, 20xx
X
X
X 3
X
August 10, 20xx
LENNY D. LANDLORD Lenny D. Landlord
August 10, 20xx
LENNY D. LANDLORD Lenny D. Landlord
80 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Type your name, address, and telephone number
in the box at the left top of the page, and the
court’s name, including division, and address in
the box below that.
In the third box near the top of the page, entitled
“CASE NAME,” type in capital letters the last name
of the first plaintiff (you) before the “vs.” and the
last name of the first defendant after the “vs.” For
example, if Leslie Smith and Laura Smith-Jones
are suing Don Brown and Debra Miller, the case
name is “SMITH vs. BROWN.”
Leave the CASE NUMBER box blank. As for Items
1 through 4 on this form, we have filled this
information in for you. (It is always the same for
residential unlawful detainer actions.)
In Item 5, check “is not” (your eviction case won’t
be a class action lawsuit). Ignore Item 6 (it’s
highly unlikely that you’ll have another, related
case ongoing when you file your eviction lawsuit).
Put the date and type your name in capital letters,
in the spaces provided (labeled “Date:” and
“(TYPE OR PRINT NAME)”). Then sign the form
at the lower right in the space provided.
You will need to make only one copy for your
records, which the court clerk will date-stamp
and return to you. You do not need to serve any
copies on the tenant(s) along with copies of the
Summons and Complaint.
A blank, tear-out version of the Civil Case Cover
Sheet is in Appendix 3. The CD-ROM also includes
this form. Instructions for using the CD are in Appendix 2.
In Los Angeles County, you’ll also need to complete
the Civil Case Cover Sheet Addendum and Statement
of Location, which you’ll file with your regular
cover sheet. This form tells the court what kind of
unlawful detainer action you’re commencing (if the
eviction is based on the tenant’s drug use or sales,
your case will proceed quickly), and why you’ve
chosen this courthouse location. Complete the “Short
Title” information at the top of each page by listing
your name and the last name of the first defendant
(for example, Landlord vs. Tenant). On the second
page under column two, check box A6020 (Unlawful
Detainer—Residential) or A6022 (Unlawful Detainer—
Drugs). Under column three, circle reason 6 (the
rental property should be within the area served by the
courthouse you’ve chosen). On page 4, under Item III,
check box 6 and include the rental property’s address.
Use the Internet to identify the correct court branch
in L.A. Go to the L.A. County Superior Court
website (www.lasuperiorcourt.org) and choose “Locations”
under “About The Court.Then select the “Filing Court
Locator.After entering the Zip code of the rental property,
you’ll learn the proper courthouse for your case.
Getting the Complaint and Summons
Ready to File
Now that you have filled out the Complaint, go through
the instructions again and double-check each step,
using the sample Complaint form set out on the
preceding few pages as a guide.
Finally, place the pages of the Complaint in the
following order:
1. unlawful detainer Complaint (front facing you, on
top)
2. attachments, in numerical order if there are more
than one
3. Exhibit 1 (copy of written rental agreement) if
applicable
4. Exhibit 2 (copy of three-day, 30-day, or 60-day
notice) if notice was served.
Fasten them with a paper clip for now.
Before you take the Summons, Civil Case Cover
Sheet, and Complaint to court for filing and stamping,
you need to:
Make one copy of the Complaint (together with
attachments and exhibits) for your records, plus
one copy to be served on each defendant. The
original will be filed with the court. Make sure to
copy both sides of the Complaint, using a two-
sided copying process if possible. Be sure that the
front and back of the Complaint you submit to
the court are in the same upside down relation to
each other as is the form in the back of this book.
Make two copies of the Summons for each defend-
ant and one for your records. For example, if you
named three defendants in your Complaint, make
seven copies of the Summons.
CHAPTER 6: FILING AND SERVING YOUR UNLAWFUL DETAINER COMPLAINT 81
LENNY D. LANDLORD
12345 Angeleno Street
Los Angeles, CA 90010
213-555-6789 213-555-5678
Plaintiff in Pro Per
LOS ANGELES
110 North Grand Avenue
Same
Los Angeles, CA 90012
CENTRAL DISTRICT/DOWNTOWN BRANCH
LANDLORD vs. TENANT
X
X
X
X
X
X
August 10, 20xx
Lenny D. Landlord Lenny D. Landlord
82 THE CALIFORNIA LANDLORD’S LAW BOOK: EVICTIONS
Make one copy of the Civil Case Cover Sheet for
your records. Since this form is not served on the
defendant, you don’t need to make any more.
Filing Your Complaint and Getting
Summonses Issued
To file your unlawful detainer Complaint, follow these
steps.
Step 1: Take the originals and all the copies of
your papers to the court’s “civil” filing window at
the courthouse and tell the clerk you want to file an
unlawful detainer action.
Step 2: Give the clerk the original Civil Case Cover
Sheet and Complaint to be filed with the court. Ask the
clerk to “file-stamp” each of your copies and give them
back to you. He will rubber-stamp each of the copies
with the date, the word “FILED,” and a case number.
Step 3: Give the clerk one copy of the Summons per
defendant and ask him to “issue” a Summons for each.
The clerk will stamp the court seal on each of these
Summonses and fill in the date of issuance; these are
now original Summonses, and the clerk gives them
back to you.
Step 4: Give the clerk the other copies of the Summons,
telling him they are copies to be “conformed.” He will
stamp them with the date, but not the court seal. Staple
one of these Summons copies to the front of each
Complaint copy. Both are to be served on the defendants
at the same time. (The original Summonses are returned
to the clerk after the copies are served—see below.)
Step 5: Pay the court filing fee of around $140,
though the exact amount varies, depending on the
county.
Serving the Papers on the Defendant
After you’ve filed your unlawful detainer Complaint
and had the Summonses issued, a copy of the Summons
and of the Complaint must be served on each person
you’re suing. This is called “service of process,” and it’s
an essential part of your lawsuit. The reason for this is
simple: A person being sued is constitutionally entitled
to be notified of the nature of the lawsuit against him
and how he may defend himself.
The Summons tells a defendant that he must file a
written response to the allegations in your Complaint
within five days of the date of service or lose by
“default.” Unlike service of notices to quit, where
service on one tenant is often considered service on
others, each person sued must be separately served
with copies of the Summons and Complaint.
If you don’t follow service rules to the letter, you
lose. For example, a “shortcut” service of Summons
and Complaint, where the papers are given to the first
person who answers the door at the property, instead
of being properly handed to the defendant himself, is
not valid. This is true even if the papers nevertheless
are eventually given to the right person. (If the defendant
cannot be found, the strict requirements of “substituted
service”—discussed in “Substituted Service on Another
Person,” below—including repeated attempts to
personally serve, followed by mailing a second copy,
must be followed.)
Who Must Be Served
Each defendant listed in the Summons and Complaint
must be served. It doesn’t matter that the defendants
may live under the same roof or be married. If you
don’t serve a particular defendant, it’s just as if you
never sued her in the first place; the court can’t enter
a judgment against her, and she cannot be evicted
when the sheriff or marshal comes later on. She not
only will be allowed to stay, but may even be free to
invite the evicted codefendants back in asguests.” (Minor
children are evicted along with their parents, without
the necessity of naming them as defendants and serving
them with Complaints.)
Service on Unknown Occupants (Optional)
If you don’t serve copies of the Summons and Complaint
on everyone residing in the property as of the date you
filed the Complaint, the eviction may be delayed even
after you’ve gotten a judgment and arranged for the
sheriff or marshal to evict. That’s because occupants
who weren’t served with the Summons and Complaint
were never really sued in the first place. After you get
a court order for possession and the sheriff posts the
property with a notice advising the occupants they have
five days to move or be bodily evicted, the unserved
occupants can file a Claim of Right to Possession with
CHAPTER 6: FILING AND SERVING YOUR UNLAWFUL DETAINER COMPLAINT 83
the sheriff and stop the eviction until you redo your
lawsuit to get a judgment against them. (C.C.P. § 11