Keep the trustees deed out of evidence in the unlawful detainer

TIMOTHY L. MCCANDLESS, ESQ. SBN 147715
LAW OFFICES OF TIMOTHY L. MCCANDLESS
820 Main Street, Ste. 1
Martinez, CA

(925) 957-9797 Telephone
(909) 382-9956 Facsimile

Attorney for Defendant Zenkarla S. Salazar

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA

GMAC MORTGAGE, LLC FKA GMAC MORTGAGE CORPORATION,

Plaintiff,

vs.

ELIZABETH L. DE VRIES; ZENKARLA S. SALAZAR
and DOES 1 through 10, Inclusive

Defendant. Case No.: 111CV198467

DEFENDANT’S MOTION IN LIMINE TO EXCLUDE ALL EVIDENCE

To the Court, to Plaintiff, GMAC MORTGAGE, LLC FKA GMAC MORTGAGE CORPORATION, [hereinafter “GMAC”] and its attorney of record:
PLEASE TAKE NOTICE that, on Friday, August 5, 2011, at 9:00 AM, or as soon thereafter as the matter may be heard, Defendant, ZENKARLA S. SALAZAR, will in limine judicii move the court, and hereby does move, for an order excluding from trial all evidence proffered by Plaintiff GMAC.
The motion will be heard in Department 19 of the Santa Clara Superior Court.
The motion will be brought pursuant to Evidence Code sections 353 and 400 et seq., Code of Civil Procedure section 430.10(b), and related decisional law.
The ground of the motion will be that the Unlawful Detainer Complaint, fails to disclose the reason why Plaintiff supposedly complied with Civil Code section 2932.5 and Civil Code section 2924; and accordingly the Complaint fails to state a claim for which relief may be granted, and thus there remain no issues of fact for which relevant evidence might be adduced at trial.
More importantly, it is acknowledged that banks, lenders and third party buyers have a secured interest in deed which was assigned and recorded as mandated by Civil Code Section 2932.5. In this case, plaintiff did not have the power of sale as mandated by Civil Code Section 2924 because there is no evidence that the secured interest of the current beneficiary has been properly acknowledged and recorded.
The motion will be based upon this notice of motion and motion, the attached Memorandum of Points and Authorities, on the pleadings and other papers on file for the above-captioned case, and upon such other and further evidence as the court may deem fit.
//
DATED: August 4, 2011 ________________________________________
LAW OFFICES OF TIMOTHY L. MCCANDLESS
By: Timothy P. McCandless, Esq.
Attorney for DEFENDANT
ZENKARLA S. SALAZAR

MEMORANDUM OF POINTS AND AUTHORITIES
I.
FACTUAL BACKGROUND

Defendant Zenkarla S. Salazar is a tenant that holds a valid lease up and until February 2013 with the subject property located at 1568 Valley Crest Drive, San Jose, CA 95131. This lease agreement was submitted with her answer and was entered before the default. Defendant Salazar demonstrated that she is a bonafide tenant and has a three-year lease at the time she was served with the Unlawful Detainer complaint.
Defendant Elizabeth L. De Vries was the original trustor of the subject property and executed the Deed of Trust recorded on February 23, 2006 at the County Recorder of Santa Clara County. Plaintiff claimed that a default occurred on the note, that the Trustee recorded a Notice of Default and initiated this unlawful non-judicial foreclosure. After the sale occurred, GMAC took over the title of the subject property.
This Unlawful Detainer action is commenced and prosecuted pursuant to California Code of Civil Procedure Section 1161a(b). Where real property is sold at a trustee sale in accordance with sections 2924 et seq., of the California Civil Code under a power of sale contained in a deed of trust, the persons who executed said deed of trust, their successor in interest, their tenants and sub-tenants, may be evicted in an action of Unlawful Detainer. California Code of Civil Procedure Section 1161a(b)(3).
The sole evidence being offered by Plaintiff is the Deed of Trust and the Trustee’s Deed Upon sale, which is inadmissible evidence, because Plaintiff GMAC cannot and has not laid the proper foundational proof that it was ever maintained a secured interest in this particular property.
Judicial notice will not suffice to establish Plaintiffs burden. „Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.‟” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)
“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) “Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. [Citation.]” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)
“Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. (Love v. Wolf (1964) 226 Cal.App.2d 378, 403.) “When judicial notice is taken of a document, . . . the truthfulness and proper interpretation of the document are disputable.” (StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9 (StorMedia).)
This court considered the scope of judicial review of a recorded document in Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106 (Poseidon). “[T]he fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. [Citation.] For example, the First Substitution recites that Shanley „is the present holder of beneficial interest under said Deed of Trust.‟ By taking judicial notice of the First Substitution, the court does not take judicial notice of this fact, because it is hearsay and itcannot be considered not reasonably subject to dispute.” (Id. at p. 1117.)
The same situation is present here. The Substitution of Trustee recites that the Bank “is the present beneficiary under” the 2003 deed of trust. As in Poseidon, this fact is hearsay and disputed; the trial court could not take judicial notice of it. Nor does taking judicial notice of the Assignment of Deed of Trust establish that the Bank is the beneficiary under the 2003 deed of trust. The assignment recites that JPMorgan Chase Bank, “successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR IN INTEREST TO LONG BEACH MORTGAGE COMPANY” assigns all beneficial interest under the 2003 deed of trust to the Bank. The recitation that JPMorgan Chase Bank is the successor in interest to Long Beach Mortgage Company, through Washington Mutual, is hearsay. Defendants offered no evidence to establish that JPMorgan Chase Bank had the beneficial interest under the 2003 deed of trust to assign to the Bank. The truthfulness of the contents of the Assignment of Deed of Trust remains subject to dispute (StorMedia, supra, 20 Cal.4th at p. 457, fn. 9), and plaintiffs dispute the truthfulness of the contents of all of the recorded documents.
Judicial notice of the recorded documents did not establish that the Bank was the beneficiary or that CRC was the trustee under the 2003 deed of trust. Defendants failed to establish “facts justifying judgment in [their] favor” (Bono, supra, 103 Cal.App.4th at p. 1432), through their request for judicial notice.

Because the non-judicial foreclosure process is subject to strict scrutiny, and given the material failure of a condition precedent by Plaintiff and/or Plaintiff’s agent, the entire non-judicial foreclosure process is invalid. Therefore, the Deed of trust and the Trustee’s Deed Upon Sale cannot be admitted into evidence, as no lawful foundation can be laid. Robert Herrera et al., v. Deutsche Bank National Trust company et al, Third Appellate District case attached 6-28-2011.
Moreover, Defendant Salazar contends that Plaintiff never maintained a recorded interest in the subject real property at any time during the foreclosure proceedings in this case. In order to enforce the power of sale pursuant to California Civil Code section 2924, the secured instrument must be properly acknowledged and recorded pursuant to California Civil Code section 2932.5. The power of sale may only be exercised under California Code of Civil Procedure section 2924, if and only if, the secured interest of the current beneficiary has been properly acknowledged and recorded. In this instance, it was not.
Thus, there is a major substantive failure in the non-judicial foreclosure process and the transaction cannot stand. In order for GMAC to have proceeding the first instance under Civil Code section 2924 et seq., it was required to be record owner, which was not.
As such, Plaintiff GMAC is not entitled to obtain possession of the Subject Property as such evidence overcomes the rebuttable presumption of correctness of the sale.
Secured interests in real property are demonstrated by recordation so that the entire world will know that a party maintains a secured interest therein. That is why interests in real property are recorded and deeds are submitted as evidence to assert rights of interest and title. It is a fundamental precept of property law that in order to enforce the power of sale, the beneficiary of a deed of trust must be able to prove the existence of their secured interest in the subject property. Here, GMAC has never demonstrated that it ever had such a secured interest.
There are no valid recorded assignments recorded by GMAC as the new beneficiary of the Deed of Trust executed by Defendants thus, under California Civil Code Section 2924, plaintiff could enforce the power of sale. Thus, this non-judicial foreclosure of this particular property is invalid and plaintiff GMAC is not the lawful owner of this property and not entitled to obtain possession pursuant to California Civil Procedure Section 1161a.
II.
THE COURT HAS POWER TO EXCLUDE ALL EVIDENCE FROM TRIAL, ON GROUNDS ANALOGOUS TO A GENERAL DEMURRER.
The court has power to consider and grant an objection to all evidence under Evidence Code sections 353 and 400 et seq. If no cause of action or defense is stated by the respective pleading, then no “factual issue” any longer exists, and therefore no evidence may be admitted on grounds of “relevance” under Evidence Code sections 400 et seq.
It is well established that a party may bring an in limine objection in order to exclude all evidence, as a sort of general demurrer or “motion for judgment on the pleadings”. “Although not in form a motion, this method of attacking the pleading is identical in purpose to a general demurrer and motion for judgment on the pleadings and is governed by the same rules. [Citations.]” 5 WITKIN, Cal.Proc.3rd page 386, “Pleading” at §953. See also 6 WITKIN, Cal.Proc.3rd pages 571-573, “Proceedings Without Trial” at §§272-273.
According to 5 WITKIN, Cal.Proc.3rd page 340, “Pleading” at §899, a “general” demurrer concerns only the defense that the pleading does not state facts sufficient to constitute a cause of action or defense. That is precisely what defendant contends here: the Unlawful Detainer Complaint fails to state a claim for which relief may be granted, because it fails to plead a necessary element of compliance with Civil Code sections 2932.5 and 2924 et al.
III.
THE COURT MUST STRICTLY ENFORCE
THE TECHNICAL REQUIREMENTS FOR A FORECLOSURE.
The harshness of non-judicial foreclosure has been recognized. “The exercise of the power of sale is a harsh method of foreclosing the rights of the grantor.” Anderson v. Heart Federal Savings (1989) 208 Cal.App.3d 202, 6 215, citing to System Inv. Corporation v. Union Bank (1971) 21 Cal.App.3d 137, 153. The statutory requirements are intended to protect the trustor from a wrongful or unfair loss of his property Moeller v. Lien (1994) 25 Cal.App.4th 822, 830; accord, Hicks v. E.T. Legg & Associates (2001) 89 Cal.App.4th 496, 503; Lo Nguyen v. Calhoun (6th District 2003) 105 Cal.App.4th 428, 440, and a valid foreclosure by the private power of sale requires strict compliance with the requirements of the statute. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.179; Anderson v. Heart Federal Sav. & Loan Assn., 208 Cal. App. 3d 202, 211 (3d Dist. 1989), reh’g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Bisno v. Sax (2d Dist. 1959) 175 Cal. App. 2d 714, 720.
It has been a cornerstone of foreclosure law that the statutory requirements, intending to protect the trustor from a wrongful or unfair loss of the property, must be complied with strictly. Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.182. “Close” compliance does not count. As a result, any trustee’s sale based on a statutorily deficient Notice of Default is invalid (emphasis added). Miller & Starr, California Real Estate (3d ed.), Deeds of Trust and Mortgages, Chapter 10 §10.182; Anderson v. Heart Federal Sav. & Loan Assn. (3dDist. 1989) 208 Cal. App. 3d 202, 211, reh’g denied and opinion modified, (Mar. 28, 1989); Miller v. Cote (4th Dist. 1982) 127 Cal. App. 3d 888, 894; System Inv. Corp. v. Union Bank (2d Dist. 1971) 21 Cal. App. 3d 137, 152-153; Saterstrom v. Glick Bros. Sash, Door & Mill Co.(3d Dist. 1931) 118 Cal. App. 379.
It is a fundamental precept of property law that in order to enforce the power of sale, the beneficiary of a deed of trust must be able to prove the existence of their secured interest in the subject property. Here, GMAC has never demonstrated that it ever had such a secured interest.
Additionally, any trustee’s sale based on a statutorily deficient Notice of Trustee Sale is invalid. Anderson v. Heart Federal Sav. & Loan Assn. (3d Dist. 1989) 11 208 Cal.App. 3d 202, 211, reh’g denied and opinion modified, (Mar. 28, 1989). The California Sixth District Court of Appeal observed, “Pursuing that policy [of judicial interpretation], the courts have fashioned rules to protect the debtor, one of them being that the notice of default will be strictly construed and must correctly set forth the amounts required to cure the default.” Sweatt v. The Foreclosure Co., Inc. (1985 – 6th District) 166 Cal.App.3d 273 at 278, citing to Miller v. Cote (1982) 127 Cal.App.3d 888, 894 and SystemInv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 152-153.
The same reasoning applies even to a notice of a trustee’s sale. Courts will set aside a foreclosure sale when there has been fraud, when the sale has been improperly, unfairly, or unlawfully conducted, or when there has been such a mistake that it would be inequitable to let it stand. Bank of America Nat. Trust & Savings Ass’n v. Reidy (1940) 15 Cal. 2d 243, 248; Whitman v. Transtate Title Co.(4th Dist. 1985) 165 Cal. App. 3d 312, 322-323; In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1228. See also Smith v. Williams (1961) 55 Cal. 2d 617, 621; Stirton v. Pastor (4th Dist. 1960) 177 Cal. App. 2d 232, 234; Brown v. Busch (3d Dist. 1957) 152 Cal.App. 2d 200, 203-204.
In this case, there is no evidence whether GMAC maintained a properly acknowledged and recorded security instrument in the subject property, anytime during the non-judicial foreclosure process. The Trustee’s Deed Upon Sale was recorded on December 9, 2010 when defendant De Vries’ property was sold at a trustee sale on November 15, 20102011when they have not complied with the requirements of California non-judicial foreclosure law. The foreclosers made no reasonable efforts to insure that it is acting under the authority of a lawsuit beneficiary.
A primary concern in this matter is the fact that GMAC had no legal right to foreclose upon the home of Defendant De Vries, even if she had not paid as required, if the same GMAC has not fully complied with Civil Code section 2932.5 and 2924. The basis for its noncompliance, and why this precludes a finding that Plaintiff’s title was “duly perfected”, is set forth below.
IV.
SINCE 2008, THE ABILITY TO ENFORCE THE POWER OF SALE OF A SECURED INSTRUMENT IN REAL PROPERTY IS MANDATED BY CALIFORNIA CIVIL CODE SECTION 2932.5 WHICH ALLOWS AN ASSIGNEE TO PROCEED WITH A NON-JUDICIAL FORECLOSURE PROVIDING THAT THE ASSIGNMENT IS PROPERLY ACKNOWLEDGED AND RECORDED.

In 2008, the California Legislature added Civil Code section 2932.5. The previous section is of particular relevance here:
Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.

There is no assignment ever recorded by GMAC. See also Code of Civil Procedure section 459: “it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part required thereby; if such allegations be controverted, the party pleading must establish on the trial the facts showing such performance.”
Nonetheless, this pleading of compliance that “[o]ne of the below necessary requirements was met by the Beneficiary:” violates another rule of pleading, namely, that allegations be made positively. “Pleading in the alternative is not permitted. The opposing party is entitled to a distinct statement of the facts claimed by the pleader to exist, and a statement in the alternative is uncertain and ambiguous. It is no answer to an objection to averments made alternatively to say that, if either of the averments is true, a cause of action is alleged. Such a pleading is vulnerable to special demurrer, and there is authority that the defect cannot be cured by verdict or by judgment by default. But where the point is raised for the first time on appeal, it is not ground for reversal if the appellant was not prejudiced by the uncertainty.” 49 Cal.Jur.3d (1979 ed.), pages 412-413, “Pleading” at §51.
The noncompliance with California’s law of pleading here is prejudicial. The issue of whether or not the lender recorded a receiver’s deed is expected to be a major factual issue at the trial. It is true that defendant SALAZAR might use contention interrogatories and other specially worded interrogatories to find out what factual theory, exactly, underlies the cryptic alternative statement that “[o]ne of the below necessary requirements was met by the Beneficiary:”. And defendant SALAZAR must still then, at that point, discover the evidence upon which Plaintiff (or, more precisely, Plaintiff’s predecessor-in-interest) relies in contending that there was compliance with California Civil Code subsection 2932.5.
CONCLUSION
The public record shows, as a matter of law, that PLAINTIFF GMAC and Plaintiff’s predecessor-in-interest did not comply with the requirement to disclose according to Code of Civil Procedure subsection 2932.5 Although the Plaintiff could supply this information and cure the pleading error here, yet such an reparative measure will not cure the invalidity of that there they complied with Civil Code 2924 and that no document was recorded with the Office of the County Recorder. Until that defect is repaired, there cannot be any “duly perfected title” that serves as the basis for Plaintiff’s Unlawful Detainer case. The case must be stopped, and that may be done by an exclusion of all evidence, as prayed for above.
Respectfully submitted,

Dated: August 4, 2011 LAW OFFICES OF
TIMOTHY MCCANDLESS ESQ.

_____________________________________
Timothy L. McCandless, Esq.,
Attorney for Defendant
ZENKARLA S. SALAZAR

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California Eviction Defense Manual

Chapter Outlines

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31

Overview of Unlawful Detainer Law

I. SCOPE OF THIS BOOK §1.1

II. LANDLORD’S ALTERNATIVES TO UNLAWFUL DETAINER ACTION §1.2

III. ETHICS §1.3

IV. SUMMARY OF UNLAWFUL DETAINER PROCESS §1.4

A. Description of Unlawful Detainer Action §1.5

B. Reduced Time Frame Governing Unlawful Detainer Procedure §1.6

C. Landlord Must Strictly Comply With Statutory Requirements §1.7

D. Notice Requirements §1.8

E. Bases for Terminating Tenancy; Applicable Notice §1.9

1. Termination Requiring 3-Day Notice (Longer Notice Permitted) §1.10

2. Termination Requiring 30-Day or 60-Day Notice §1.11

3. Termination Requiring Other Notice §1.12

4. Termination Requiring No Notice §1.13

F. Jurisdiction and Venue §1.14

G. Default Judgment §1.15

H. Bases for Defending Unlawful Detainer Actions §1.16

I. Trial

1. Tenant Entitled to Jury Trial if Answer Presents Admissible Defenses §1.17

2. Rent and Damages Awardable to Landlord §1.18

J. Posttrial Motions §1.19

K. Execution by Sheriff §1.20

V. SUMMARY OF POTENTIAL TENANT RESPONSES TO LANDLORD’S ACTIONS §1.20A

VI. INVALIDITY OF LEASE PROVISION WAIVING TENANT’S RIGHTS §1.21

VII. WRIT OF IMMEDIATE POSSESSION §1.22

VIII. UNAVAILABILITY OF UNLAWFUL DETAINER IF TENANT IS NO LONGER IN POSSESSION OF PREMISES §1.23

Relationship of Unlawful Detainer to Other Actions

I. ISSUES NOT COGNIZABLE IN UNLAWFUL DETAINER ACTIONS §2.1

II. COORDINATION AND CONSOLIDATION OF UNLAWFUL DETAINER WITH OTHER ACTIONS §2.2

A. Coordination of Complex Actions §2.2A

B. Transfer of Noncomplex Actions §2.2B

C. Consolidation of Actions Pending in Same County §2.2C

III. CONVERSION OF UNLAWFUL DETAINER ACTION TO ACTION FOR EJECTMENT §2.3

IV. SEVERING POSSESSION ISSUE FROM RENT-DUE ISSUE §2.4

V. TENANT’S SUIT FOR DECLARATORY OR INJUNCTIVE RELIEF; STAY OF UNLAWFUL DETAINER ACTION

A. Overview: Can Unlawful Detainer Actions Be Enjoined? §2.5

B. Obtaining Injunctive Relief

1. Legal Basis; Grounds §2.5A

2. The Newby Exception: Adequate Remedy at Law §2.5B

3. Overcoming Newby Limitations §2.5C

4. Procedure; Bond Required §2.5D

VI. LANDLORD’S SUIT FOR INJUNCTIVE RELIEF §2.6

VII. ACTIONS AFTER ENTRY OF JUDGMENT §2.7

VIII. ARBITRATION PROVISION IN LEASE §2.8

IX. ADMINISTRATIVE MANDAMUS §2.9

X. BANKRUPTCY §2.10

Self-Help by Landlord

I. USE OF SELF-HELP BY LANDLORD §3.1

II. FORCIBLE ENTRY AND DETAINER §3.2

A. Examples of Forcible Entry and Detainer §3.3

B. Retaking Abandoned Premises Is Not Forcible Entry or Detainer §3.4

C. Recovering Punitive Damages for Forcible Entry or Detainer Requires Showing of Malice §3.5

III. SHUTTING OFF UTILITIES OR OTHERWISE BARRING TENANT’S USE OF PROPERTY

A. Civil Code §789.3 §3.6

B. Remedies Under Public Utilities Code and CC §1942.2 §3.6A

IV. OTHER ACTIONS BY LANDLORD THAT MAKE PREMISES UNINHABITABLE §3.7

V. SELF-HELP EVICTIONS OF TENANTS IN RESIDENTIAL HOTELS §3.8

VI. SELF-HELP EVICTIONS OF LODGERS §3.9

VII. SELF-HELP EVICTIONS OF OCCUPANTS OF TRANSITIONAL HOUSING §3.10

VIII. SELF-HELP EVICTIONS OF HOTEL GUESTS §3.11

IX. ANTI-HARASSMENT STATUTE (CC §1940.2) §3.12

Representing the Tenant; Office Procedures

I. OFFICE PROCEDURES §4.1

II. LAW OFFICE AUTOMATION §4.2

III. LEGAL REFERENCE MATERIALS §4.3

A. Necessary Legal Sources and Forms §4.4

B. Useful Additional Library Materials §4.5

IV. INITIAL STEPS BEFORE DECIDING WHETHER TO REPRESENT TENANT

A. Initial (Telephone) Contact With Prospective Client §4.6

B. Form: Telephone Intake Form §4.7

C. Scheduling Meeting With Prospective Client §4.8

D. Conflict of Interest in Representing Tenant

1. Performing a Conflicts Check §4.9

2. Common Conflict Situations in Unlawful Detainer Actions §4.10

E. Initial Meeting With Prospective Client §4.11

F. Use of Client Interview Questionnaire §4.12

G. Form: Client Interview Questionnaire §4.13

H. Conduct of Initial Meeting §4.14

I. Investigate Tenant’s Relationship With Former Counsel and Any Litigation History §4.15

J. Contact Landlord’s Attorney for Preliminary Look at Opposing View of Case §4.16

K. Initial Assessment of Case §4.17

L. Scope of Initial Assessment §4.18

M. Allaying Tenant’s Fears §4.19

V. REPRESENTATION OF TENANT

A. Decision to Represent Tenant §4.20

1. If Attorney Will Not Represent or Assist Tenant §4.21

2. When More Time Needed for Decision on Representation §4.22

3. Form: Substitution of Attorney—Civil (Without Court Order) (Judicial Council Form MC-050; Mandatory) §4.23

4. If Attorney and Tenant Agree That Attorney Will Represent or Assist Tenant §4.24

5. Disclosure Regarding Professional Liability Insurance §4.24A

B. Representation Agreements and Ground Rules §4.25

1. Delegating Tasks to Client §4.26

2. Contents of Representation Agreement §4.27

3. Form: Representation Agreement—Private Practitioner §4.28

4. Form: Client Retainer Agreement—Legal Services Organization §4.29

C. Limited Scope Representation (Unbundling)

1. Applicable Law §4.29A

2. Checklist: Tenant Fee Agreement §4.29B

D. Deposit of Rent Due Into Client Trust Account §4.30

E. Form: Requirement for Deposit of Rent Into Attorney-Client Trust Account §4.31

VI. PROCEDURE AFTER REPRESENTATION IS UNDERTAKEN

A. Ascertain Goal of Representation §4.32

1. Ascertain Whether Tenant Wants to Continue Living in Rental Unit §4.33

2. Goal of Representation Is Not Necessarily Successful Defense of Unlawful Detainer Action §4.34

B. Counsel Should Investigate Facts of Case §4.35

C. Determining Defense Strategy §4.36

D. Making Choices on Strategy and Tactics §4.37

E. Example of Strategic and Tactical Choices in Procedure When Defective 3-Day Notice Was Served §4.38

1. Strategy and Tactics: Filing Motion to Quash Service of Summons or Demurrer §4.39

2. Strategy and Tactics: Filing an Answer §4.40

3. Strategy and Tactics: Filing Motion for Summary Judgment §4.41

F. Counsel Should Simultaneously File Pleadings, Conduct Discovery, and Negotiate §4.42

Grounds for Eviction

I. GROUNDS FOR EVICTION GENERALLY §5.1

II. GROUNDS FOR EVICTION BASED ON TENANT’S DEFAULT; 3-DAY NOTICE REQUIRED §5.2

III. REASONS FOR TERMINATION NOT BASED ON TENANT’S DEFAULT; NOTICE REQUIRED §5.3

IV. REASONS FOR TERMINATION NOT BASED ON TENANT’S DEFAULT; NOTICE NOT REQUIRED §5.4

V. TERMINATING MOBILEHOME PARK TENANCIES §5.5

VI. EVICTION BROUGHT BY CITY PROSECUTOR OR CITY ATTORNEY §5.6

Three-Day Notice

I. PURPOSE AND EFFECT OF 3-DAY NOTICE §6.1

A. Purpose of 3-Day Notice §6.2

B. If 3-Day Notice Is Defective §6.3

II. IMMEDIATE TENANT RESPONSE TO SERVICE OF 3-DAY NOTICE (BEFORE COMPLAINT HAS BEEN FILED) §6.4

III. STRICT COMPLIANCE WITH STATUTE IS REQUIRED §6.5

IV. NOTICE REQUIRED EVEN IF LEASE PROVIDES THAT IT IS NOT NECESSARY §6.6

V. COMPUTATION OF NOTICE PERIOD §6.7

VI. NOTICE IS VALID EVEN THOUGH IT CONTAINS MORE THAN ONE REASON FOR EVICTION §6.8

VII. NOTICE MAY BE WITHDRAWN §6.9

VIII. FORM OF NOTICE §6.10

A. Notice Must Be in Writing §6.11

B. Description of Premises in Notice §6.12

C. Signature on Notice §6.13

D. Demand for Possession Must Be Unequivocal §6.14

E. Statement of Three Days in Notice Itself May Not Be Required §6.15

F. Notice May Declare Election of Forfeiture §6.16

G. Demand for Rent and Charges

1. Notice to Quit Must Include Demand for Rent as Alternative §6.17

2. Notice Must Specify No More Than Rent Actually Due §6.18

a. Precise Amount of Rent Need Not Be Specified if Calculation of Rent Depends on Tenant’s Accounting §6.19

b. Statement of Rent Due, and Additional Claims in Notice §6.20

c. Effect of Federal Fair Debt Collection Practices Act §6.20A

3. Notice Seeks Less Than Actual Amount Owed §6.21

4. One-Year Limitation on Amount of Rent That Can Be Demanded §6.22

5. Inclusion of Late Charges in Notice §6.23

6. Validity of Late Charges Landlord Claims Are Due

a. As Liquidated Damages §6.24

b. As Violation of Usury Law §6.24A

IX. SERVICE OF NOTICE

A. When Notice May Be Served §6.25

1. “Holidays” Defined §6.26

2. When Tenant May Perform Under Notice §6.27

B. Method of Service §6.28

C. Statutory Requirements for Service of 3-Day Notice §6.29

X. WHEN 3-DAY NOTICE IS BASED ON FAILURE TO PAY RENT §6.30

XI. TENDER OF RENT

A. Method of Tender of Rent §6.31

B. Proof That Tender Was Made §6.32

C. Depositing Money in Landlord’s Bank Account §6.33

D. Effect of Tender of Rent on Obligation to Pay Rent §6.34

E. Time of Tender of Rent

1. Tender of Rent Before Service of Notice §6.35

2. Tender of Rent After Notice Is Served and Before Notice Period Expires §6.36

3. Tender of Rent After Notice Period Has Expired §6.37

XII. WHEN 3-DAY NOTICE IS BASED ON DEFAULT UNDER LEASE OTHER THAN FAILURE TO PAY RENT

A. Violation of Covenant in Lease Generally; Statutory Basis for 3-Day Notice §6.38

1. Express and Implied Covenants §6.39

2. Trivial or Technical Breach Not Sufficient §6.40

3. Waiver and Estoppel §6.41

4. Repeated Acceptance of Late Rent §6.42

5. Effect of Tenant’s Performance §6.43

6. Whether Notice Must Be Given in Alternative §6.44

7. Stating the Breach §6.45

B. Violation of Covenant Against Subletting, Assignment, or Waste; Maintaining Nuisance; or Using Premises for Unlawful Purpose §6.46

1. Subletting, Assignment, and Waste §6.47

2. Nuisance §6.48

3. Unlawful Purpose §6.49

XIII. SALE UNDER EXECUTION, MORTGAGE, OR TRUST DEED §6.50

XIV. COMMON FLAWS IN 3-DAY NOTICE OR ITS SERVICE THAT RENDER NOTICE INEFFECTIVE §6.51

XV. EFFECT OF SERVICE OF MORE THAN ONE NOTICE §6.52

Thirty-Day/Sixty-Day Notices and Termination Without Notice

I. TERMINATING PERIODIC TENANCIES

A. Using 30-Day Notice §7.1

B. Using 60-Day Notice §7.1A

II. IMMEDIATE TENANT RESPONSE TO SERVICE OF NOTICE §7.2

III. TENANT REMAINS IN POSSESSION AFTER TERMINATION

A. “Holdover” Tenant Defined §7.3

B. Tenant Serves Landlord With Notice of Termination and Remains in Possession After Termination Period §7.4

C. Term Has Expired but Tenant Holds Over §7.5

D. Termination of Employment of Resident Employee §7.6

E. Death of Tenant §7.7

F. Expiration of Fixed-Term Lease §7.8

G. Effect of Landlord’s Acceptance of Rent After Expiration of Fixed Term §7.9

H. Effect of Clause Providing for Automatic Extension or Renewal §7.9A

I. Lodger Who Holds Over in Owner-Occupied Dwelling §7.10

J. Expiration of Periodic (Generally Month-to-Month) Lease §7.11

IV. LENGTH OF PERIOD OF NOTICE

A. Shortened Notice Periods by Agreement §7.12

B. Date on Which Mailed Notice Is Effective §7.13

C. Notice Period Must Expire Before Complaint Can Be Filed §7.14

V. WITHDRAWAL OF NOTICE; ACCEPTANCE OF RENT PAYMENTS §7.15

VI. FORM OF NOTICE

A. Notice Must Be in Writing §7.16

B. Description of Premises and Signature §7.17

C. Notice Cannot Be in the Alternative §7.18

D. Statement of 30 or 60 Days §7.19

E. Cover Sheet; Evictions After Foreclosure §7.19A

VII. APPORTIONMENT OF RENT §7.20

VIII. METHOD OF SERVICE §7.21

IX. TENANCY AT WILL §7.22

X. EFFECT OF SERVICE OF 30-DAY OR 60-DAY NOTICE IN CONJUNCTION WITH SERVICE OF 3-DAY NOTICE §7.23

XI. COMMON FLAWS IN NOTICE OR ITS SERVICE, RENDERING NOTICE INEFFECTIVE §7.24

Service of Notices on Tenant

I. EVALUATING SERVICE OF NOTICE §8.1

II. METHODS OF SERVICE OF NOTICE §8.2

A. Personal Service §8.3

B. Substituted Service (CCP §1162(a)(2)) §8.4

C. Service by Posting, Delivery, and Mail (CCP §1162(a)(3)) §8.5

1. Service by Posting Alone Is Insufficient §8.6

2. Service by Mail Alone Is Insufficient §8.7

D. Extension of Tenant’s Time to Act When Notice Is Mailed §8.8

1. Notice Effective on Receipt §8.8A

2. Notice Effective on Mailing §8.8B

3. Effective Date of Notice Extended by CCP §1013 §8.8C

4. Rationale Favoring Extension of Response Period Under CCP §1013 When Notice Is Mailed §8.9

III. IMPROPER SERVICE

A. Effect of Defective Service of Notice §8.10

B. Actual Receipt of Improperly Served Notice §8.11

IV. EFFECT OF SERVICE ON PERSONS OTHER THAN TENANT §8.12

A. Occupants Who Are Neither Tenants nor Subtenants §8.13

B. Cotenants §8.14

C. Subtenants §8.15

V. EXAMPLES OF COMMON MISTAKES IN SERVICE §8.16

VI. PROOF OF SERVICE OF NOTICE §8.17

Negotiating Strategies

I. IMPORTANCE OF NEGOTIATION AND EARLY SETTLEMENT §9.1

A. Definitions of Terms: “Negotiation,” “Target Point,” “Resistance Level,” and “Bottom Line” §9.2

B. Determining Tenant’s Goals and Expectations §9.3

C. Determining the Bargaining Range §9.4

D. Possible Bargaining Outcomes §9.5

E. Evaluating Case §9.6

II. KEY FACTORS TOWARD SETTLEMENT IN TENANT’S FAVOR

A. Merits of Tenant’s Case §9.7

B. Whether Tenant Is Willing to Relinquish Possession §9.8

C. Whether Tenant Is Impervious to Judgment for Damages §9.9

D. Whether Rental Agreement Contains Attorney Fee Clause §9.10

III. DEVELOPING A BARGAINING STRATEGY §9.11

A. Look for Means to Strengthen Tenant’s Case and Weaken Landlord’s §9.12

B. Tenant’s Attorney Must Be Ready to Move Quickly to Take Advantage of Settlement Opportunities §9.13

C. Tenant’s Attorney Should Be Aware of Landlord’s Goals and Fears §9.14

D. Determining How Much to Demand in Initial Settlement Offer §9.15

IV. ADVANTAGES AND DISADVANTAGES OF FACING OPPOSING COUNSEL KNOWN TO TENANT’S COUNSEL §9.16

V. USING BARGAINING TACTICS §9.17

VI. COMMUNICATING WARNINGS TO OPPOSING PARTY §9.18

VII. WHEN LANDLORD’S COUNSEL APPEARS TO BE DRAWING OUT ACTION TO GENERATE FEES §9.19

VIII. DRAFTING SETTLEMENT AGREEMENT §9.20

IX. EVALUATING SUCCESS OF SETTLEMENT AGREEMENT §9.21

Proceeding in Forma Pauperis

I. AUTHORITY FOR OBTAINING WAIVER OF COURT FEES AND COSTS §10.1

II. RIGHT TO PROCEED IN FORMA PAUPERIS §10.2

III. SUBSTANTIVE SHOWING OF INDIGENCE §10.3

IV. CLASSES OF CLAIMANTS AND CATEGORIES FOR WHICH FEES AND COSTS MAY BE WAIVED §10.4

V. FEES AND COSTS IN TRIAL COURT

A. Types of Fees and Costs Waived by Initial Application §10.5

B. Waiver of Other Fees and Costs §10.6

C. Applying to Proceed in Forma Pauperis

1. Procedure for Request for Waiver of Court Fees and Costs §10.7

2. Grant of Waiver of Court Fees and Costs Without Hearing §10.7A

3. Hearing on Applicant’s Entitlement to Waiver of Court Fees and Costs §10.7B

4. Court Issues and Serves Order on Request to Waive Court Fees §10.7C

5. Effect of Denial of Waiver on Pleadings Already Filed by Applicant §10.7D

6. Procedure for Subsequent Determinations of Fee Waiver Eligibility §10.8

D. Right to Waiver or Reimbursement of Discovery Costs §10.9

E. Right to Appointment of Attorney §10.10

VI. FEES AND COSTS ON APPEAL

A. Proceeding in Forma Pauperis §10.11

1. Filing Fees §10.11A

2. Fees for Transcript §10.11B

3. Fees for Interpreter §10.11C

4. Appeal Bond Fees §10.11D

B. Review of Denial of Request §10.12

Service of Summons and Complaint; Motion to Quash Service of Summons

I. SERVICE OF SUMMONS AND COMPLAINT §11.1

II. IMMEDIATE ACTIONS THAT CAN BE TAKEN ON TENANT’S BEHALF AFTER SERVICE OF SUMMONS §11.2

III. ATTEMPTS TO AVOID SERVICE OF SUMMONS §11.3

IV. FORM OF SUMMONS §11.4

V. FORM: SUMMONS—UNLAWFUL DETAINER—EVICTION (JUDICIAL COUNCIL FORM SUM-130) §11.5

VI. SERVICE OF PROCESS §11.6

A. Methods of Service §11.7

B. Strict Construction of Service Statutes §11.8

C. Effect of Defective Service §11.9

D. New Summons Need Not Be Served With Service of Amended Complaint §11.10

E. Return of Service §11.11

F. Personal Service §11.12

G. Substituted Service §11.13

1. Substituted Service on Individual Defendant §11.14

2. Substituted Service on Business Entity §11.15

3. Showing Reasonable Diligence §11.16

4. Recital on Return of Service §11.17

H. Service by Mail With Acknowledgment of Receipt §11.18

I. Service by Posting and Mailing §11.19

J. Order Allowing Service by Posting §11.20

K. Completion Date of Service by Posting §11.21

L. Service by Publication §11.22

VII. SPECIAL APPEARANCE REQUIRED ON MOTION TO QUASH

A. What Constitutes a General Appearance §11.23

B. Making a Special Appearance §11.24

VIII. GROUNDS FOR MOTION TO QUASH §11.25

A. Error in Filled-Out Summons §11.26

B. Failure to Properly Serve All Required Papers §11.27

C. Motion to Quash When Cause of Action Is Not Properly Unlawful Detainer §11.28

D. Complaint Contains Another Cause of Action in Addition to Unlawful Detainer §11.29

E. Complaint Prays for Damages Not Allowed in Unlawful Detainer §11.30

F. Defendant Erroneously Designated

1. Pleading Requirements; “Doe” Defendants §11.31

2. Entering Judgment Against “Doe” Defendant §11.32

IX. CONSTITUTIONAL CHALLENGE TO FIVE-DAYS-TO-ANSWER REQUIREMENT §11.33

X. MOTION TO QUASH—PROCEDURE

A. Time to File Motion; Effect of Motion on Time to File Answer §11.34

B. Form of Notice §11.35

C. Hearing on Motion to Quash; Burden of Proof §11.36

D. Filing Fees §11.37

XI. FORM: MOTION TO QUASH SERVICE OF SUMMONS; POINTS AND AUTHORITIES; DECLARATION OF TENANT §11.38

XII. FORM: ORDER GRANTING MOTION TO QUASH SERVICE OF SUMMONS §11.39

XIII. EFFECT OF GRANTING MOTION TO QUASH §11.40

XIV. EFFECT OF DENIAL OF MOTION TO QUASH §11.41

XV. APPLICATION FOR WRIT OF MANDATE IF MOTION DENIED §11.42

XVI. POSSIBLE EFFECT OF CCP §1167.4 ON WHETHER TIME FOR FILING RESPONSIVE PLEADINGS IS TOLLED BY PETITION FOR WRIT §11.43

XVII. CHART: TIMELINE FOR TENANT ACTIONS IF SUMMONS OR SERVICE OF SUMMONS WAS DEFECTIVE §11.44

Default Judgments

I. PROCEDURE FOR OBTAINING JUDGMENT BY DEFAULT §12.1

II. CHECKLIST: OBTAINING RELIEF FROM ENTRY OF DEFAULT §12.2

III. SERVICE OF APPLICATION FOR ENTRY OF DEFAULT; LANDLORD’S OBLIGATION TO INFORM TENANT §12.3

IV. EFFECT OF ENTRY OF DEFAULT; LATE FILING OF RESPONSE §12.4

V. ENTRY OF DEFAULT; WRIT OF IMMEDIATE POSSESSION §12.5

VI. PROVE-UP HEARING FOR RELIEF OTHER THAN RESTITUTION §12.6

VII. PROCEDURE FOR ENTERING DEFAULT IF SERVICE WAS BY PUBLICATION §12.7

VIII. SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.8

A. Stipulation to Set Aside Default and Default Judgment §12.9

B. Form: Stipulation to Set Aside Default and Default Judgment; Order §12.10

C. Procedures for Applying to Set Aside Default §12.11

D. Grounds for Setting Aside Default and Default Judgment §12.12

1. Mistake, Inadvertence, Surprise, or Excusable Neglect (CCP §473)

a. Relief May Be Granted for Client or Attorney Error §12.13

b. Relief Must Be Granted for Attorney Error §12.14

c. Time Limitations on Bringing Motion Under CCP §473 §12.15

d. Showing in Support of Motion; Declaration §12.16

e. Excuses for Default; Examples §12.17

(1) Mistake of Fact §12.18

(2) Attorney’s Mistake of Law §12.19

(3) Excusable Neglect §12.20

(4) Fraud §12.21

2. Clerical Mistakes; Vacating Void Judgments (CCP §473, ¶4) §12.22

a. Judgment Void on Its Face §12.23

b. Judgment Void in Fact, But Not Void on Its Face §12.24

3. When Service of Summons Does Not Result in Actual Notice to Party (CCP §473.5) §12.25

4. Motion or Separate Action in Equity Available to Vacate Judgment on Ground of Fraud or Mistake §12.26

5. Erroneously Entered Default or Default Judgment §12.27

6. Examples of Erroneously Entered Defaults and Default Judgments §12.28

IX. WHEN WRIT OF EXECUTION HAS BEEN ISSUED §12.29

X. FORMS: MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

A. Form: Notice of Motion to Set Aside Default and Default Judgment; Supporting Memorandum §12.30

B. Form: Declaration Supporting Motion to Set Aside Default and Default Judgment §12.30A

XI. ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.31

XII. FORM: ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.32

XIII. EFFECT OF ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.33

Demurring and Moving to Strike

I. ATTACKING LEGAL SUFFICIENCY OF COMPLAINT §13.1

II. THE DEMURRER §13.2

A. Grounds for General Demurrer §13.3

B. Grounds for Special Demurrer §13.4

C. Sustaining Demurrer With or Without Leave to Amend §13.5

D. Demurrer Permitted on Grounds of No Jurisdiction Over Subject Matter §13.6

E. Effect of Another Pending Unlawful Detainer Action §13.7

F. Parties

1. Improper Defendant §13.8

2. Improper Plaintiff §13.9

G. Venue and Trial Court Location §13.10

H. Description of Premises With Reasonable Certainty §13.11

I. Existence of Landlord-Tenant Relationship §13.12

J. Notice of Termination

1. Alleging Service of Notice §13.13

2. Alleging Proper Notice §13.13A

3. Alleging Contents of Notice §13.14

a. Default in Rent §13.15

b. Breach of Covenant Other Than Nonpayment of Rent §13.16

c. Subletting, Waste, Nuisance, or Use for Unlawful Purpose §13.17

d. Expiration of Term

(1) Fixed Term §13.18

(2) Periodic Tenancy §13.19

K. Tenant Continues in Possession §13.20

L. Fraud, Force, or Violence §13.21

M. Compliance With Implied Warranty of Habitability §13.22

N. Statute of Limitations §13.23

O. Checklist: Demurrable Defects in Complaint §13.23A

P. Form: Demurrer to Complaint §13.24

III. MOTION TO STRIKE §13.25

A. Irrelevant, False, or Improper Allegations §13.26

B. Defects Not Subject to Demurrer §13.27

C. Improper Request for Damages §13.28

D. Necessary Allegations for Finding Statutory Damages §13.29

E. Rental Value of Premises After Suit Brought §13.30

F. Attorney Fee Provision in Lease §13.31

G. Verification §13.32

H. Failure to State “§1161a” in Caption §13.32A

I. Sample Form: Motion to Strike §13.33

IV. PROCEDURE FOR DEMURRER AND MOTION TO STRIKE

A. Answer May Be Filed With Demurrer §13.34

B. Timing of Hearing on Demurrer and Motion to Strike §13.35

C. Supporting Memorandum §13.36

D. Effect of Overruling of Demurrer §13.37

E. Frivolous Demurrers §13.38

F. Motion to Strike §13.39

V. FILING FEES §13.40

VI. EXTENSION OF TIME TO PLEAD §13.41

VII. MOTION FOR JUDGMENT ON PLEADINGS §13.42

VIII. SPECIAL (ANTI-SLAPP) MOTION TO STRIKE §13.43

Answering and Alleging Affirmative Defenses

I. RIGHT TO ANSWER §14.1

II. USE OF JUDICIAL COUNCIL FORMS §14.2

III. TIME TO ANSWER §14.3

IV. GOOD CAUSE TO EXTEND TIME TO ANSWER

A. Length of Extension §14.4

B. Steps Tenant Should Take to Get Extension of Time to File Answer §14.5

V. DENIALS §14.6

VI. BASES FOR DENIALS §14.7

VII. AFFIRMATIVE DEFENSES §14.8

A. Priority of Title After Foreclosure Sale §14.9

B. Implied Warranty of Habitability and Retaliatory Eviction §14.10

C. “Equitable” Defenses §14.11

D. Laches §14.12

E. Other Affirmative Defenses §14.13

F. Illegal Discrimination §14.13A

1. Violation of Unruh Civil Rights Act as Defense §14.14

a. Application of Unruh Act to Landlords §14.15

b. Prohibition of Arbitrary Discrimination Under Unruh Act §14.16

c. Minimum Income Policy §14.17

d. Examples of Reach of Unruh Act §14.18

2. Discrimination Based on Age

a. Discrimination Against Families With Children §14.19

b. Senior Citizen Housing §14.20

3. Discrimination Under Federal Fair Housing Acts §14.21

4. Discrimination Under California Fair Employment and Housing Act §14.22

5. Family Day Care Home §14.22A

6. Immigration Status §14.22B

7. Domestic Violence §14.22C

G. Other Violations of Housing Statutes and Ordinances

1. Certificate of Occupancy Violations §14.23

2. Landlord’s Duty to Repair; “Repair and Deduct” Statutes (CC §§1941–1942.5) §14.24

3. Violation of Tenantability Statutes (CC §1942.4) §14.24A

a. Indications That Premises Are Untenantable §14.25

b. Conditions Rebuttably Presumed to Breach Habitability Requirements §14.26

c. If Tenant Causes Condition of Premises §14.27

d. Tenant’s Remedies §14.28

e. Waiver of Tenant’s Rights §14.29

4. Statutory Violations Under Rent Control §14.30

H. Fraud §14.31

I. Adhesion Contract §14.32

J. Waiver and Estoppel §14.33

K. Express Promise to Repair §14.34

1. Dependent or Independent Covenants §14.35

2. Oral Promise Made Before Written Lease §14.36

a. Consideration §14.37

b. Statute of Frauds §14.38

c. Parol Evidence Rule as Applied to Leases §14.39

d. Dependency of Covenants §14.40

3. Tenant’s Arguments for Admission of Oral Promise Made Before or at Time of Execution of Written Agreement §14.41

4. Oral Promise Made Before Entry Into Oral Lease §14.42

5. Promise Made Subsequent to Lease §14.43

6. When Tenant Makes Promise to Repair §14.43A

L. Implied Covenant of Good Faith §14.44

M. Actual Partial Eviction §14.45

N. Notice Served More Than One Year After Rent Due §14.46

O. Breach of Covenant of Quiet Enjoyment §14.47

P. Offsets §14.48

Q. When Tenant Has Vacated Premises §14.49

VII. VERIFICATION §14.50

VIII. FILING ANSWER AFTER RULING ON DEMURRER §14.51

IX. EXTENSION OF TIME TO PLEAD §14.52

X. AMENDING ANSWER §14.53

XI. CROSS-COMPLAINTS §14.54

A. When Tenant Has Vacated Premises §14.55

B. When Landlord Fails to Challenge Cross-Complaint §14.56

C. Procedure §14.57

D. Form: Answer—Unlawful Detainer (Judicial Council Form UD-105) [Deleted] §14.58

Affirmative Defenses—Implied Warranty of Habitability

I. INTRODUCTION

A. Adoption of Implied Warranty of Habitability: Hinson v Delis; Green v Superior Court §15.1

B. Definition of Implied Warranty of Habitability §15.2

C. Supreme Court Rationale in Adopting Implied Warranty Doctrine §15.3

D. Landlord May Be Held in Breach Even if Another Is Responsible for Defect §15.4

E. Time Within Which Landlord Must Correct Defects §15.5

II. USES OF IMPLIED WARRANTY OF HABITABILITY DOCTRINE §15.6

A. When Warranty Used in Suit for Affirmative Damages and Other Relief §15.7

B. Procedure When Using Warranty as Defense in Unlawful Detainer Action §15.8

C. Effect of Tenant Prevailing at Trial on Warranty Defense §15.9

III. ESTABLISHING BREACH OF WARRANTY

A. Facilities Covered §15.10

1. Government-Owned Housing §15.11

2. Portions of Premises Covered by Warranty of Habitability §15.12

B. Housing and Building Code Violations

1. Sources of Housing and Building Code Standards §15.13

2. Examples of Housing and Building Code Violations §15.13A

3. Jury Instructions Relating to Code Violations §15.14

4. Defects Actionable Under Implied Warranty or Negligence But Not Covered by Housing and Building Codes §15.15

C. Failure to Protect Tenants From Criminal Acts §15.16

1. Determining Whether Landlord Has a Duty to Protect Against Criminal Acts §15.17

2. Examples of Duty Not Found or Duty Held Not Breached §15.18

3. Examples of Duty Found or Landlord Held in Breach §15.19

4. Breach of Duty Raised by Allegation of Breach of Implied Warranty §15.20

5. Level of Security at Time Tenant Moves Into Premises §15.21

6. Proving Causation §15.21A

D. Seriousness of Defects

1. Requirement That Defects Be Serious §15.22

2. Examples of Defects Held Serious Enough to Constitute Breach of Implied Warranty §15.23

3. Evidence of Breach §15.24

a. Proving That Existing Conditions Violate Code §15.25

b. Presumption of Breach of Habitability Standards §15.26

c. Viewing the Premises §15.27

E. Special Problems

1. Premises Uninhabitable at Inception of Tenancy §15.28

2. Premises Become Uninhabitable After Tenant Is Served With Notice of Termination §15.29

3. Waiver of Warranty §15.30

4. Defect Caused by Tenant’s Wrongful Action §15.31

5. Defects Caused by Acts of Nature §15.32

IV. NOTICE OF DEFECT §15.33

V. REASONABLE TIME TO REPAIR NOT REQUIRED §15.34

VI. PROTECTIVE ORDERS §15.35

A. When Protective Orders Are Appropriate §15.36

B. Advantages to Tenant of Voluntary Deposit Into Attorney’s Trust Account §15.37

VII. DAMAGES FOR BREACH OF IMPLIED WARRANTY §15.38

A. Relief Based on Affirmative Defense of Breach of Implied Warranty §15.39

1. Period During Which Damages Accrue §15.40

2. Tenant Must Pay “Reasonable Rent” Even if Warranty Breached §15.41

3. Various Approaches to Measuring Damages §15.42

a. “Difference-in-Value” Approach §15.43

b. “Discomfort-and-Annoyance” Approach §15.44

c. “Percentage-Reduction-of-Use” Approach §15.45

4. Limits on Amount by Which Rent May Be Reduced §15.46

5. Amount of Rent Reduction in Subsidized Housing §15.46A

6. Nominal Damage Awards §15.47

B. Actions Brought Under CC §1942.4 §15.48

C. Actions Based on Tort of Breach of Implied Warranty §15.49

D. Hybrid View of Warranty of Habitability—Contract and Tort §15.50

VIII. EFFECT OF RECENT PURCHASE OF PROPERTY BY LANDLORD §15.51

IX. LACK OF CERTIFICATE OF OCCUPANCY §15.52

Affirmative Defenses—Retaliatory Evictions

I. LEGAL FRAMEWORK §16.1

II. SEVERAL SOURCES OF LAW MAY APPLY SIMULTANEOUSLY §16.2

A. Civil Code §1942.5

1. Tenants’ Actions on Habitability (CC §1942.5(a))

a. Protected Parties and Acts §16.3

b. Limitations on Protection

(1) Tenant Cannot Be in Default in Payment of Rent §16.4

(2) Tenant May Not Invoke CC §1942.5(a) More Than Once a Year §16.5

(3) Protective Period Under CC §1942.5 Limited to 180 Days §16.6

(4) Defense Unavailable in Ellis Act Evictions §16.6A

2. Tenant Union Activity (CC §1942.5(c)) §16.7

3. Exercise of “Rights Under Law” (CC §1942.5(c)) §16.8

a. Additional Examples of Acts Protected by CC §1942.5(c) §16.9

b. Examples of Acts Protected Before Enactment of CC §1942.5 §16.10

4. Tenant Cannot Waive Rights (CC §1942.5(d)) §16.11

5. Notice and Burden of Proof (CC §1942.5(e)) §16.12

6. Procedure for Proving Retaliation When Landlord Includes Grounds in Notice (CC §1942.5(e)) §16.13

7. Remedies (CC §1942.5(f)–(g)); Punitive Damages and Attorney Fees §16.14

8. Remedies Not Exclusive (CC §1942.5(h)) §16.15

B. Public Policy; Retaliation for Refusal to Commit Crime Improper §16.16

C. Victims of Domestic Violence §16.16A

D. Other Statutory Rights

1. Retaliation Based on Tenant’s Assertion of Statutory Rights; Implied Protection §16.17

2. Retaliation Based on Tenant’s Assertion of Statutory Rights; Express Statutory Protection §16.18

3. Common Law §16.19

4. Local Rent Control Ordinances §16.20

5. Constitution §16.21

III. LIMITATIONS ON RETALIATORY EVICTION DEFENSE §16.21A

IV. PROOF OF RETALIATORY MOTIVE

A. Sole or Dominant Motive §16.22

B. Treatment of Mixed Motives in Labor Law §16.23

C. Presumptions and Burden of Proof §16.24

D. Evidence §16.25

E. Analogies Drawn From Labor Law to Prove Retaliatory Motive §16.26

F. Form: Affirmative Defense on Ground of Retaliatory Eviction §16.27

Special Considerations Governing Evictions in Rent-Controlled Cities

Myron Moskovitz
Sonya Bekoff Molho
Steven A. MacDonald
Denise McGranahan
Sallyann Molloy

I. SCOPE OF LOCAL RENT CONTROL ORDINANCES

A. Local Control Versus State Preemption §17.1

B. Statewide Vacancy Decontrol

1. Existing Housing §17.1A

a. Phase-In Periods §17.1B

b. Lease Restrictions on Subletting Allowed §17.1C

c. Exceptions to Preemptive Effect §17.1D

2. New Construction and Single-Unit Exclusions §17.1E

a. Phase-In Periods for Condominiums and Single-Family Homes §17.1F

b. Exceptions to Preemptive Effect §17.1G

II. PRACTICE CONSIDERATIONS IN RENT CONTROL JURISDICTIONS §17.2

III. CITIES SUBJECT TO RENT CONTROL §17.3

IV. EVICTIONS AND RENT CONTROL

A. Overview §17.4

B. Just Cause for Eviction §17.5

1. Failure to Pay Rent §17.6

2. Failure to Cure Violation of Rental Agreement §17.7

3. Conduct Constituting a Nuisance §17.8

4. Use of Premises for Illegal Purpose §17.9

5. Refusal to Permit Landlord Access to Premises §17.10

6. Refusal to Execute New Lease §17.11

7. Subletting §17.12

8. Violation of Lease Restricting Occupancy §17.12A

a. Exception: Relative or Domestic Partner of Tenant §17.12B

b. Exception: Surviving Relative of Deceased Tenant §17.12C

c. Exception: Landlord Knowingly Accepts Rent From Occupant §17.12D

9. Rehabilitation of Unit §17.13

10. Demolition or Conversion of Units—Ellis Act Evictions §17.14

a. Constitutional Challenges; Preemption §17.14A

b. Effect of Other State Laws §17.14B

11. Occupancy by Owner or Owner’s Relative §17.15

a. Representing Tenants in Evictions for Owner Occupancy §17.16

b. Good Faith in Owner-Occupancy Evictions §17.17

12. Grounds Not Stated in Ordinance: Termination of Manager; Foreclosure §17.18

13. Failure to Use Premises as Principal Residence §17.18A

C. Notice and Pleading Requirements §17.19

D. Burdens of Proof and Presumptions §17.20

E. Defenses to Evictions §17.21

F. Statute of Limitations §17.22

G. Damages for Unlawful Evictions §17.23

H. Attorney Fees §17.24

V. NEGOTIATING AND DEFENDING ELLIS ACT EVICTIONS

A. Preliminary Considerations

1. Scope of Ellis Act §17.25

2. Representing Organized Tenants §17.26

3. Factual Investigation

a. Review Notices and Status of All Affected Units §17.27

b. Explain Ellis Process to Client §17.28

c. Ascertain Client’s Age, Health, and Economic Status §17.29

d. Investigate Unexpired Leases §17.30

B. Relocation Benefits §17.31

1. Benefits Available for Displaced Tenants Regardless of Income §17.32

2. Landlord’s Misrepresentation of Availability of Benefits §17.33

3. Documentation Proving Eligibility §17.34

4. Other Issues Affecting Payment of Benefits

a. Timely Payment §17.35

b. Waiver of Relocation Fees §17.36

c. One Fee per Unit §17.37

d. Services in Lieu of Fees §17.38

e. Failure to Pay Fees §17.39

C. Technical Defenses Based on Notice and Filing Requirements §17.40

D. Unexpired Leases §17.41

E. Tenant’s Options Regarding Unlawful Detainer Action Under Ellis Act

1. Answering the Complaint §17.42

2. Retaliatory Eviction Defense Limited §17.43

3. Failure to Take All Units Off Market §17.44

4. Other Possible Defenses §17.45

F. Discovering Violations After Eviction

1. Use of Ellis Act to Move Out Long-Term Tenants §17.46

2. Use of Post-Ellis Property for Home Ownership §17.47

a. Effect of State and Local Subdivision Laws §17.48

b. Effect of State and Local Laws Regulating Apartment Conversions §17.49

Special Considerations Governing Evictions From Federally Assisted Housing

Catherine M. Bishop
Nancy Ann Palandati
Deborah A. Collins

I. “FEDERALLY ASSISTED LOW-INCOME HOUSING” DEFINED §18.1

II. ASCERTAINING WHETHER TENANT LIVES IN FEDERALLY ASSISTED HOUSING AND, IF SO, WHAT KIND §18.2

III. TYPES OF FEDERAL HOUSING PROGRAMS §18.3

A. Public Housing §18.3A

B. Section 8 §18.3B

C. HUD-Assisted and -Subsidized Housing §18.3C

D. HUD-Assisted Units Threatened With Prepayment of Mortgage or Opt-Out of Section 8 Contract §18.3D

E. Rural Housing Service (RHS) Subsidized Rental Housing §18.3E

F. Low-Income Housing Tax Credit (LIHTC) §18.3F

G. Other State and Local Programs §18.3G

IV. SUBSTANTIVE RIGHTS IN EVICTION ACTIONS

A. Application of State Law §18.4

B. Evictions After Foreclosure

1. Preemptive Measures Governing Evictions §18.4A

2. Postponing Sale of Multifamily Residential Buildings §18.4B

C. Good Cause Requirement §18.5

1. Public Housing §18.6

2. Project-Based Section 8 and HUD-Assisted and -Subsidized Housing §18.7

3. Section 8 Housing Choice Voucher Program §18.8

4. Rural Housing Service (RHS) Rental Housing §18.9

5. State and Local Housing Programs for Low-Income Families §18.10

6. Other Housing Programs for Low-Income Families §18.11

D. Facts Constituting Good Cause §18.12

1. Failure to Pay Rent §18.13

2. Serious Tenant Wrongdoing, Including Criminal Activity

a. Violation of Lease or State or Federal Law §18.14

b. Drug or Criminal Activity

(1) Statutory Authorization and Standards for Eviction §18.15

(2) Federal Standards Upheld in Rucker §18.16

(3) When State Law Standards Apply §18.16A

(4) Aftermath of Rucker; Unresolved Issues §18.17

(5) Permission to Obtain Criminal Records, Drug Treatment Information §18.17A

c. Exception: Victims of Domestic Violence Protected §18.17B

3. Violation of Program Regulations §18.18

4. Examples of Improper Grounds for Evicting Tenant §18.19

E. Defending Evictions

1. Project Owner’s Abuse of Power §18.20

2. Defensive Strategies in PHA Evictions §18.20A

3. Bankruptcy Discharge of Delinquent Rent in Public or Subsidized Housing §18.20B

V. EVICTION PROCEDURES: NOTICE AND ADMINISTRATIVE HEARING OR MEETING §18.21

A. Notice Requirements §18.22

B. Pretermination Grievance Hearing or Meeting §18.23

C. Notice and Hearing Required Before Forfeiture Under Federal Antidrug Statute §18.24

D. Relief From Forfeiture §18.25

VI. DAMAGES MAY BE AWARDED FOR WRONGFUL EVICTION FROM FEDERALLY ASSISTED HOUSING §18.26

VII. ENJOINING EVICTIONS FROM FEDERALLY ASSISTED HOUSING §18.27

Special Considerations Governing Evictions in Commercial Tenancies

Myron Moskovitz
Clifford R. Horner

I. OVERVIEW OF UNLAWFUL DETAINER IN COMMERCIAL TENANCIES §19.1

II. THREE-DAY NOTICE TO PAY RENT OR QUIT

A. Lease Provisions May Affect Eviction Procedures §19.2

B. Statutory Requirements

1. Estimated Rent (CCP §1161.1) §19.3

2. When Rent Is Not Estimated §19.4

3. Service Requirements §19.5

4. Landlord’s Acceptance of Partial Tender of Rent §19.6

III. THREE-DAY NOTICE FOR VIOLATION OF COVENANT OTHER THAN PAYMENT OF RENT §19.7

A. Covenants Restricting Assignments

1. Common Law Rules §19.8

2. Statutory Law §19.9

B. Covenants Regarding Tenant Improvements §19.9A

C. Covenants Restricting Change in Use §19.10

IV. TERMINATION NOTICES FOLLOWING FORECLOSURE §19.10A

V. TERMINATION UNDER EXPRESS LEASE PROVISIONS §19.10B

VI. DEFENDING EVICTION BY ASSERTING BREACH OF LEASE BY LANDLORD

A. Covenant to Repair; Implied Warranty of Habitability

1. Dependent Versus Independent Covenants §19.11

2. Argument Favoring Adoption of Dependent Covenant Doctrine in Commercial Leases §19.12

a. Minimize Litigation §19.13

b. Eliminate Unfair Burdens on Tenant §19.14

c. Protect Tenant’s Right to Pursue Livelihood §19.15

d. No Impact on Summary Nature of Unlawful Detainer §19.16

e. Out-of-State Decisions Favor Interdependent Covenants §19.17

3. Effect of Toxic Mold Legislation §19.17A

B. Covenant of Quiet Enjoyment §19.18

C. Other Contractual Defenses §19.18A

D. Implied Warranty of Fitness §19.19

E. Implied Covenant of Good Faith §19.20

1. Duty to Maintain Third Party Leases §19.21

2. Sublessor Required to Exercise Option to Extend Master Lease §19.22

3. “No Compete” Covenant Applied to Expansion of Shopping Center §19.23

4. Good Faith Covenant Applied in Favor of Landlord §19.24

VII. NONCONTRACTUAL DEFENSES TO COMMERCIAL EVICTION ACTIONS

A. Retaliatory Eviction §19.25

B. Good Cause to Terminate Petroleum Distributorship §19.26

C. Equitable Defenses §19.27

VIII. LANDLORD’S RIGHT OF ENTRY PENDING EVICTION §19.28

Effect of Sale of Property on Unlawful Detainer Proceedings

I. EFFECT OF SALE OF PROPERTY ON UNLAWFUL DETAINER §20.1

A. Sale Before Eviction Action Is Begun §20.2

B. Sale After Eviction Action Has Begun §20.3

II. EVICTING AFTER SALE UNDER CCP §1161a §20.4

A. Use of 30-Day Notice on Residential Owner’s Tenant or 60-Day or 90-Day Notice After Foreclosure §20.5

1. When 60-Day Notice Applies §20.6

2. Additional Preforeclosure Notice of Sale §20.7

3. Postponing Sale of Multifamily Residential Buildings §20.7A

4. When 90-Day Notice Applies §20.8

B. Litigating Title in Unlawful Detainer Action §20.9

C. Effect of Local Eviction Control Ordinances §20.10

D. Effect of Section 8 Eviction Controls §20.11

E. Postforeclosure Bank Eviction Policies §20.12

F. Defending Postforeclosure Evictions: Priority of Title, Title Dispute, Improper Foreclosure, or Improper Notice Following Foreclosure §20.13

III. UTILITY CUTOFFS §20.14

Effect of Filing Bankruptcy on Proceedings in Unlawful Detainer

I. EFFECT OF TENANT FILING BANKRUPTCY

A. Automatic Stay on Evictions §21.1

B. Exceptions to Stay for Residential Tenancies

1. After Entry of Judgment for Eviction §21.1A

2. When Eviction Based on Endangerment of Property or Illegal Use of Controlled Substance §21.1B

C. Significant Changes Under 2005 Act §21.1C

II. LANDLORD MAY SEEK RELIEF FROM AUTOMATIC STAY §21.2

III. PENALTY FOR IMPROPER FILING OF BANKRUPTCY §21.3

IV. LEASE CLAUSES PURPORTING TO TERMINATE LEASE ON FILING OF BANKRUPTCY §21.4

V. TERMINATION OF UTILITIES AND OTHER SERVICES §21.5

VI. ASSUMPTION OF LEASE BY TRUSTEE §21.6

VII. SECURITY DEPOSITS §21.7

VIII. DISADVANTAGES TO TENANT OF FILING FOR BANKRUPTCY §21.8

IX. FILING PETITION IN BANKRUPTCY AS TACTIC IN UNLAWFUL DETAINER ACTION §21.9

Summary Judgment

I. PURPOSE OF MOTION FOR SUMMARY JUDGMENT §22.1

II. TIMING OF MOTION §22.2

III. BURDEN OF PROOF §22.2A

IV. FACTUAL BASES FOR TENANT’S MOTION FOR SUMMARY JUDGMENT §22.3

V. MOVING PARTY’S SUPPORTING PAPERS §22.4

VI. OPPOSING PARTY’S COUNTERDECLARATIONS; ORDERS §22.5

VII. SUMMARY ADJUDICATION OF ISSUES §22.6

Discovery

I. PURPOSES OF DISCOVERY §23.1

II. STATUTORY METHODS OF DISCOVERY §23.2

III. AVAILABILITY OF DISCOVERY IN UNLAWFUL DETAINER §23.3

IV. DEFENSE STRATEGY SHOULD INCLUDE PLAN FOR DISCOVERY §23.4

V. FORMAL AND INFORMAL DISCOVERY METHODS §23.5

VI. FORMULATING A DISCOVERY PLAN

A. When to Make and Implement Plan §23.6

B. Coordinating Various Discovery Techniques §23.7

C. Timeline for Initiating Tenant Discovery Directed to Landlord §23.8

D. Actions to Take if Discovery Cannot Be Completed Before Trial Date §23.9

VII. PURSUING DISCOVERY BEFORE ACTION FILED §23.10

A. Methods of Discovery Available Before Action Is Filed §23.11

B. Procedure for Pursuing Discovery Before Action Is Filed §23.12

C. Usefulness of Pursuing Discovery Before Action Is Filed §23.13

VIII. DISCOVERY AFTER SUMMONS AND COMPLAINT ARE SERVED §23.14

A. Time Limits on Responding to Discovery Requests §23.15

B. Preventing Setting of Trial Date Before Discovery Is Complete §23.16

C. Petitioning for Writ of Mandate if Court Refuses to Extend Trial Date §23.17

IX. METHODS OF DISCOVERY §23.18

A. Oral Depositions §23.19

1. Usefulness of Depositions §23.20

2. Expense of Depositions §23.21

3. Procedure for Oral Depositions

a. When Deposition May Be Taken §23.22

b. Setting Depositions of Parties §23.23

c. Setting Depositions of Nonparties §23.24

d. Witness and Mileage Fees §23.25

e. Procedures at Deposition §23.26

f. Inspection of Documents at Deposition §23.27

g. Reviewing, Correcting, and Approving Deposition §23.28

B. Written Interrogatories §23.29

1. Usefulness of Written Interrogatories §23.30

2. Disadvantages of Written Interrogatories §23.31

3. Limit on Number of Interrogatories That May Be Propounded §23.32

4. Form: Declaration for Additional Discovery §23.33

5. Procedure for Propounding Written Interrogatories §23.34

C. Pretrial Demand for Production of Documents or Inspection §23.35

1. Usefulness of Demand for Production §23.36

2. Introduction Into Evidence of Documents Produced §23.37

3. Tactical Considerations in Requesting Production §23.38

4. Protective Orders Against Request for Production §23.39

D. Requests for Admissions §23.40

1. Usefulness of Requests for Admissions §23.41

2. Procedure for Requests for Admissions §23.42

3. Form: Declaration in Support of Request for Additional Admissions §23.43

4. Effect of Failure to Respond to Request for Admissions §23.44

5. Effect of Failure to Admit Fact Later Found True §23.45

6. Requests for Admissions May Not Be Combined With Other Discovery Requests §23.46

7. Effect of Admission Made in Response to Request §23.47

8. Admissions and Responses Are Not Filed But Retained by Parties §23.48

X. SANCTIONS FOR REFUSAL TO MAKE DISCOVERY §23.49

A. Categories of Sanctions That May Be Imposed §23.50

B. What Constitutes Misuse of Discovery Process §23.51

C. Specific Sanctions That Court May Impose §23.52

Rights of Occupants Not Named in Lease

I. OCCUPANTS WHO ARE NOT NAMED IN LEASE §24.1

II. PREJUDGMENT CLAIM OF RIGHT TO POSSESSION §24.2

A. Service of Prejudgment Claim to Right to Possession Form

1. Service by Marshal, Sheriff, or Process Server §24.3

2. Time of Service §24.4

3. Service on Occupants Other Than Tenant or Subtenant §24.5

B. Effect of Proper Service by Landlord of Prejudgment Claim Form §24.6

C. Effect of Inadequate Service by Landlord of Prejudgment Claim Form §24.7

D. Judicial Council Form CP10.5: Prejudgment Claim of Right to Possession §24.8

III. POSTJUDGMENT CLAIM OF RIGHT TO POSSESSION §24.9

A. Removal of Occupant by Sheriff or Marshal §24.10

B. Procedure by Occupant in Making Postjudgment Claim of Right to Possession §24.11

C. Judicial Council Form CP10: Claim of Right to Possession and Notice of Hearing §24.12

IV. HEARING ON CLAIM OF RIGHT TO POSSESSION §24.13

V. PROCEDURE AT HEARING ON CLAIM OF RIGHT TO POSSESSION §24.14

VI. PROCEEDING WITH ENFORCEMENT OF WRIT OF POSSESSION §24.15

Trial

I. SETTING CASE FOR TRIAL

A. Request and Counter-Request to Set Trial §25.1

B. Setting Date for Trial §25.2

C. Effects of Local Practices §25.3

1. Trial by Temporary Judge §25.4

2. Procedure After Trial Date Is Set §25.5

D. Resetting Trial Date §25.6

1. Procedure If Parties Do Not Agree on New Trial Date §25.7

2. Determining Whether Moving Party Has Shown Good Cause §25.8

3. Determining Whether There Is Reasonable Probability Plaintiff Will Prevail at Trial §25.9

4. Determining Damages Landlord Might Suffer §25.10

5. Reduction of Damages Based on Diminution of Value or Setoff §25.11

6. Order to Deposit Potential Damages §25.12

7. Advancing Trial Date on Tenant’s Failure to Make Deposit §25.13

8. Costs of Escrow Recoverable by Prevailing Party §25.14

9. Distribution of Funds Held in Escrow After Trial §25.15

II. IF TENANT VACATES PREMISES BEFORE TRIAL §25.16

III. PRETRIAL CONFERENCE §25.17

IV. RIGHT TO JURY TRIAL §25.18

A. Jury Instructions §25.19

B. Waiver of Jury Trial

1. Bases for Waiver §25.20

2. Requesting Jury Trial After Waiver §25.21

3. Tenant’s Right to Jury Trial on Equitable Issues §25.22

a. Examples of Legal Issues §25.23

b. Examples of Equitable Defenses §25.24

C. Jury Verdicts

1. General and Special Verdicts §25.24A

2. Judgment Based on Jury Verdict §25.24B

V. DISQUALIFYING JUDGE §25.25

A. Challenge for Cause (CCP §170.1) §25.26

1. Conditions That May Not Be Used as Grounds to Disqualify Judge §25.27

2. Bias or Prejudice §25.28

3. Procedure for Disqualification §25.29

B. Peremptory Challenges (CCP §170.6)

1. Grounds for Challenge §25.30

2. Procedure for Peremptory Challenges §25.31

3. Time Limits for Moving to Challenge §25.32

4. Effect of Challenge §25.33

C. Tactical Considerations §25.34

VI. SUBPOENAS

A. Subpoenas for Witnesses §25.35

B. Subpoena Not Necessary to Require Attendance of Party or Agent §25.36

C. Service of Subpoena §25.37

D. Fees for Appearing in Court in Response to Subpoena §25.38

E. Subpoena Duces Tecum (Books and Papers) §25.39

1. Service of Subpoena Duces Tecum; Affidavit of Good Cause Necessary §25.40

2. Fees for Appearing in Court in Response to Subpoena Duces Tecum §25.41

3. Subpoena Duces Tecum Not Necessary for Party §25.42

F. Penalties for Disobeying Subpoena §25.43

VII. EVIDENCE PROBLEMS

A. Prima Facie Case; Nonsuit §25.44

B. Proof of Tenant’s Possession §25.45

C. Proof of Service of Notice §25.46

D. Proof of Rent Due §25.47

E. Judicial Notice §25.48

F. Use of Books and Records §25.49

G. Laying Foundation for Admission of Business Record §25.50

H. Proof of Damages §25.51

I. Waiver of Rent During Trial §25.52

J. Proving Retaliatory Eviction §25.53

1. Strength of Retaliatory Motive §25.54

2. Evidence of “Just Cause” to Evict §25.55

3. Evidence of Retaliatory Motive

a. Evidence Inferred by Conduct §25.56

b. Indirect Evidence §25.57

K. Fees for Appointment of Interpreter §25.58

VIII. TRIAL BRIEFS §25.59

IX. CONTINUANCES §25.60

A. Grounds for Continuance §25.61

1. Unavailability of Counsel §25.62

2. Unavailability of Party §25.63

3. Unavailability of Witness §25.64

4. Other Statutory Grounds for Granting Continuance §25.65

5. Unexpected Testimony §25.66

B. Procedure for Obtaining Continuance §25.67

1. Good Cause Required §25.67A

2. Stipulation for Continuance §25.67B

3. Conditions for Obtaining Continuance §25.67C

4. Appealability of Order Denying Continuance §25.67D

X. DEFAULTS AT TRIAL §25.67E

XI. CONFORMING PLEADINGS TO PROOF

A. General Law for Ordinary Civil Actions §25.68

B. Special Law for Unlawful Detainer Complaints

1. Amendment Based on Trial Evidence §25.68A

2. Amendments Before Trial Excluded §25.68B

3. Permissible Scope of Amendments §25.68C

C. Amended Versus Supplemental Complaint §25.68D

XII. STATEMENT OF DECISION §25.69

Judgment

I. JUDGMENTS IN UNLAWFUL DETAINER ACTIONS §26.1

II. CONDITIONING JUDGMENT FOR TENANT ON PAYMENT OF RENT §26.2

III. TENANT MUST BE IN POSSESSION §26.3

IV. WHAT COURT CAN AWARD

A. Judgment Can Grant Possession of Premises §26.4

B. “Rent” and “Damages” §26.5

1. Determining Whether Amount Due Is Rent or Damages; Period Covered §26.6

2. Rent §26.7

3. Apportionment of Rent §26.8

4. Damages

a. Damages Occurring Before Holdover §26.9

b. Reasonable Rental Value During Holdover §26.10

c. Damages Against Subtenant §26.11

d. Damages After Judgment §26.12

e. Statutory Damages for Malicious Holdover §26.13

C. Forfeiture §26.14

D. Notice May Specify Election to Declare Forfeiture §26.15

E. Interest May Be Awarded §26.16

F. Costs May Be Awarded §26.17

G. Attorney Fees Authorized by Lease or Statute §26.18

1. Reciprocity of Attorney Fee Provision §26.19

2. Award of Fees Under Invalid Rental Agreement §26.20

3. Prevailing Party §26.21

4. Entitlement to Attorney Fees on Tender and Deposit of Amount Owed §26.22

5. Prevailing Party When Tenant Raises Habitability as Affirmative Defense §26.23

6. Size of Fee Award; Local Fee Schedules §26.24

7. Fees Awardable After Settlement Offer Rejected §26.25

8. Fees Awardable Beyond Court’s Jurisdictional Limit §26.26

9. Fees Awardable to Public Interest Attorneys §26.27

10. Fees Awardable for All Issues Argued §26.28

11. Attorney Fees Payable to Party—Not to Attorney §26.29

12. Attorney Fees Awardable as Sanctions Regardless of Lease Provision §26.30

13. Effect of Voluntary Dismissal §26.31

14. Fees Awardable for Enforcement of Right Important to Public Interest §26.32

15. Procedures for Requesting Fees §26.33

16. Related Statutes Providing for Award of Attorney Fees §26.34

H. Limitation on Award for Judgments in Municipal Court of Less Than $10,000 §26.35

I. Witness Fees May Be Awarded §26.36

J. Costs of Execution of Judgment May Be Recovered §26.37

V. EFFECT OF JUDGMENT ON CONSUMER CREDIT REPORTING §26.38

VI. RES JUDICATA AND COLLATERAL ESTOPPEL EFFECT OF JUDGMENT §26.38A

VII. UNLAWFUL DETAINER JUDGMENT FORMS

A. Form: Order for Judgment for Defendant Conditioned on Payment of Rent After Trial (Warranty of Habitability) §26.39

B. Form: Judgment—Unlawful Detainer (Judicial Council Form UD‑110) §26.40

C. Form: Judgment—Unlawful Detainer Attachment (Judicial Council Form UD‑110S) §26.41

D. Form: Stipulation for Entry of Judgment (Unlawful Detainer) (Judicial Council Form UD‑115) §26.42

Posttrial Motions

I. POSTTRIAL MOTIONS COVERED §27.1

II. FIVE-DAY STATUTORY STAY OF EXECUTION (FOR APPLICATION FOR RESTORATION OF POSSESSION) §27.2

III. DISCRETIONARY STAY OF EXECUTION

A. Pending Hearing on Posttrial Motions §27.3

B. Temporary Stay Based on Hardship §27.4

C. Form: Ex Parte Application for Stay of Execution §27.5

D. Form: Memorandum in Support of Ex Parte Application for Stay of Execution §27.6

IV. MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT §27.7

A. Grounds for Judgment Notwithstanding Verdict §27.8

B. Procedure for Making Notice of Motion §27.9

C. Time of Ruling on Motion §27.10

D. Form: Notice of Motion for Judgment Notwithstanding Verdict §27.11

E. Form: Order Granting or Denying Judgment Notwithstanding Verdict §27.12

V. MOTION FOR NEW TRIAL §27.13

A. Grounds for Motion for New Trial §27.14

B. Court’s Power to Vacate or Modify Judgment §27.15

C. Notice of Motion for New Trial §27.16

D. Time for Making Motion for New Trial §27.17

E. Form: Notice of Motion for New Trial §27.18

F. Form: Declaration in Support of Notice of Motion for New Trial §27.19

G. Hearing on Motion §27.20

H. Court’s Time to Rule on Motion §27.21

VI. MOTION TO SET ASIDE AND VACATE JUDGMENT §27.22

A. Notice of Motion §27.23

B. Time for Making Motion §27.24

C. Form: Notice of Motion to Vacate Judgment and Enter Different Judgment §27.25

D. Form: Order Granting Motion to Vacate Judgment and Enter Different Judgment (CCP §663) §27.26

VI. APPLICATION FOR RELIEF FROM FORFEITURE §27.27

A. Grounds for Relief From Forfeiture §27.28

B. Rent Must Be Paid and Other Covenants Performed §27.29

C. Procedure for Seeking Relief From Forfeiture §27.30

D. Form: Application for Relief From Forfeiture §27.31

E. Effect of Grant or Denial of Relief §27.32

Enforcement of Judgment—Removing Tenant and Tenant’s Belongings

I. REMOVING TENANT §28.1

A. Contents of Writ §28.2

B. Sending Scare Notice to Tenant After Judgment Is Entered §28.3

C. Procedures for Serving and Enforcing Writ of Possession §28.4

D. Sheriff Must Evict if Tenant Does Not Vacate Within 5 Days §28.5

E. Effect of Failure by Sheriff to Act by Return Date of Writ §28.6

F. Judicial Council Form EJ‑130: Writ of Possession of Real Property §28.7

II. SHERIFF’S DEPARTMENT PRACTICES AND CHARGES §28.8

III. DISPOSITION OF TENANT’S PERSONAL PROPERTY

A. Personal Property Not Removed by Tenant §28.9

B. Recovery of Personal Property After Eviction §28.10

C. Treating Tenant’s Personal Property as Lost or Abandoned §28.11

D. Claim by Tenant for Personal Property (CC §1965) §28.12

E. Advantages and Disadvantages of Requesting Surrender §28.13

F. Form: Claim for Return of Personal Property Under CC §1965 §28.14

IV. DISPOSITION OF LOST PROPERTY §28.15

V. DISPOSITION OF PROPERTY ABANDONED BY TENANT §28.16

A. Landlord Must Store Abandoned Property in Safe Place §28.17

B. Notice Requirements for Disposal of Abandoned Property §28.18

C. Release of Property to Owner on Payment of Costs §28.19

D. Storage Costs §28.20

E. Sale of Unclaimed Property; Liability of Landlord §28.21

VI. EXECUTION ON TENANT’S PERSONAL PROPERTY IN LANDLORD’S POSSESSION §28.22

VII. SETTING ASIDE IMPROPER EXECUTION SALE §28.23

VIII. SUPPLEMENTAL COST BILL §28.24

IX. MOTION TO QUASH OR RECALL WRIT OF EXECUTION §28.25

X. CLAIM OF EXEMPTION §28.26

A. Judicial Council Form EJ‑160: Claim of Exemption §28.27

B. Hearing on Objections to Claim of Exemption §28.28

C. Judgment on Claim of Exemption §28.29

XI. WAGE GARNISHMENTS §28.30

Appeals

I. APPEAL PROCEDURES §29.1

A. Limited Civil Cases: Timeline for Action After Entry of Judgment §29.2

B. Unlimited Civil Cases: Timeline for Action After Entry of Judgment §29.3

II. APPEALABLE JUDGMENTS AND ORDERS §29.4

III. VACATING PREMISES DOES NOT MOOT TENANT’S APPEAL §29.5

IV. FRIVOLOUS APPEALS §29.6

V. OBTAINING IMMEDIATE TEMPORARY STAY OF ENFORCEMENT OF JUDGMENT §29.7

VI. STAY PENDING APPEAL §29.8

A. Evaluating Need for Stay Pending Appeal §29.9

B. Proper Judge §29.10

C. Grounds on Which Stay May Be Granted §29.11

VII. UNDERTAKING ON APPEAL §29.12

VIII. FORM: WAIVER OF SECURITY §29.13

IX. FORM: NOTICE OF MOTION FOR STAY §29.14

X. REVIEW OF DENIAL OF STAY §29.15

XI. CLEAR ABUSE OF DISCRETION MUST BE SHOWN §29.16

XII. SCOPE OF TRIAL COURT JURISDICTION PENDING APPEAL §29.17

XIII. EVALUATING WHETHER TO APPEAL §29.18

XIV. SUMMARY OF APPELLATE PROCEDURE

A. Applicable Rules §29.19

B. Appeals From Limited Civil Cases §29.20

C. Appeals From Other Superior Court Actions §29.21

D. Standard of Review §29.22

E. Initiating Appeal

1. Notice of Appeal §29.23

2. Form: Notice of Appeal §29.24

3. Form: Notice of Appeal/Cross-Appeal (Limited Civil Case) (Judicial Council Form APP-102) §29.25

4. Form: Notice Designating Record on Appeal (Limited Civil Case) (Judicial Council Form APP-103) §29.26

5. Filing Deadlines Applicable to Appeals From Limited Civil Cases §29.27

6. Filing Deadlines Applicable to Other Superior Court Judgments §29.28

7. Record on Appeal §29.29

a. Electronic Recording or Agreed Statement §29.30

b. Form: Proposed Statement on Appeal (Limited Civil Case) (Judicial Council Form APP-104) §29.31

c. Requesting Reporter’s Transcript §29.32

F. Filing Briefs in Appellate Division of Superior Court §29.33

G. Filing Briefs in Court of Appeal §29.34

H. Purpose of Oral Argument §29.35

I. Decision on Appeal and Rehearing §29.36

J. Relief for Tenant After Reversal §29.37

K. Costs and Attorney Fees on Appeal §29.38

L. Abandonment of Appeal §29.39

M. Transfer to District Court of Appeal

1. Transfer of Appeal of Limited Civil Case From Superior Court to Court of Appeal §29.40

2. When Transfer Is Denied by District Court §29.41

Civil Writs

I. CIVIL WRITS IN GENERAL §30.1

II. NATURE AND SCOPE OF WRIT §30.2

A. Conditions Under Which Writ of Mandate Will Issue §30.3

B. Alternative and Peremptory Writs of Mandate §30.4

C. Factors in Deciding Whether to Seek Writ §30.5

III. OBTAINING A STAY OF EXECUTION PENDING APPEAL OR DECISION ON PETITION FOR WRIT OF MANDATE §30.6

IV. PERSUADING COURT THAT WRIT SHOULD BE GRANTED §30.7

A. Inadequacy of Other Remedy Must Be Shown §30.8

B. No Direct Appeal §30.9

C. Common Situations in Which Relief by Writ Is Sought §30.10

D. Direct Appeal Possible §30.11

V. PROCEDURE IN OBTAINING WRIT

A. Relief Must First Be Sought in Lower Court §30.12

B. Court in Which Writ Petition Must Be Filed §30.13

C. Applicable Statutes and Rules of Court §30.14

D. Names of Parties §30.15

E. Time Limitation §30.16

F. Procedures in Superior Court §30.17

G. Pleadings in Mandamus Proceeding §30.18

1. Contents of Petition §30.19

2. Common Errors in Petitions for Writ §30.20

3. Opposition to Issuance of Writ §30.21

H. Hearing §30.22

I. Issuance of Peremptory Writ §30.23

J. Mootness §30.24

K. Damages and Costs §30.25

VI. REVIEW OF SUPERIOR COURT ACTION ON WRIT §30.26

VII. APPEAL FROM DISTRICT COURT OF APPEAL DECISION TO SUPREME COURT §30.27

Return of Security Deposit and Disposition of Last Month’s Rent

I. TENANT’S RIGHTS IN SECURITY DEPOSIT AND LAST MONTH’S RENT §31.1

II. PAYMENTS TO LANDLORD ON SIGNING OF LEASE THAT ARE NOT CONSIDERED “SECURITY” §31.2

III. SECURITY “DISGUISED” AS ADVANCE RENT §31.3

IV. EFFECT OF DESIGNATION OF DEPOSIT AS “LAST MONTH’S RENT” RATHER THAN “SECURITY DEPOSIT” §31.4

V. LIMITATIONS ON AMOUNT OF SECURITY THAT MAY BE REQUIRED §31.5

VI. TENANT’S CLAIM TO SECURITY HAS PRIORITY OVER THAT OF LANDLORD’S CREDITORS §31.6

VII. SECURITY MAY NOT BE NONREFUNDABLE §31.7

VIII. PROVING AMOUNT OF SECURITY DEPOSIT §31.8

IX. LIMITS ON LANDLORD’S USE OF SECURITY DEPOSIT §31.9

X. LANDLORD’S DUTY TO RETURN DEPOSIT §31.10

A. Tenant’s Right to Request Inspection of Premises and Cure Deficiencies; Use of Deposit §31.10A

B. Tenant’s Right to Refund of Security Deposit Balance and Accounting §31.10B

XI. LANDLORD’S SALE OR OTHER TRANSFER OF PREMISES §31.11

XII. INTEREST ON SECURITY DEPOSIT §31.12

XIII. DAMAGES FOR LANDLORD’S IMPROPER RETENTION OF DEPOSIT §31.13

XIV. EFFECT ON UNLAWFUL DETAINER §31.14

Overview of Unlawful Detainer Law

I. SCOPE OF THIS BOOK §1.1

II. LANDLORD’S ALTERNATIVES TO UNLAWFUL DETAINER ACTION §1.2

III. ETHICS §1.3

IV. SUMMARY OF UNLAWFUL DETAINER PROCESS §1.4

A. Description of Unlawful Detainer Action §1.5

B. Reduced Time Frame Governing Unlawful Detainer Procedure §1.6

C. Landlord Must Strictly Comply With Statutory Requirements §1.7

D. Notice Requirements §1.8

E. Bases for Terminating Tenancy; Applicable Notice §1.9

1. Termination Requiring 3-Day Notice (Longer Notice Permitted) §1.10

2. Termination Requiring 30-Day or 60-Day Notice §1.11

3. Termination Requiring Other Notice §1.12

4. Termination Requiring No Notice §1.13

F. Jurisdiction and Venue §1.14

G. Default Judgment §1.15

H. Bases for Defending Unlawful Detainer Actions §1.16

I. Trial

1. Tenant Entitled to Jury Trial if Answer Presents Admissible Defenses §1.17

2. Rent and Damages Awardable to Landlord §1.18

J. Posttrial Motions §1.19

K. Execution by Sheriff §1.20

V. SUMMARY OF POTENTIAL TENANT RESPONSES TO LANDLORD’S ACTIONS §1.20A

VI. INVALIDITY OF LEASE PROVISION WAIVING TENANT’S RIGHTS §1.21

VII. WRIT OF IMMEDIATE POSSESSION §1.22

VIII. UNAVAILABILITY OF UNLAWFUL DETAINER IF TENANT IS NO LONGER IN POSSESSION OF PREMISES §1.23

Relationship of Unlawful Detainer to Other Actions

I. ISSUES NOT COGNIZABLE IN UNLAWFUL DETAINER ACTIONS §2.1

II. COORDINATION AND CONSOLIDATION OF UNLAWFUL DETAINER WITH OTHER ACTIONS §2.2

A. Coordination of Complex Actions §2.2A

B. Transfer of Noncomplex Actions §2.2B

C. Consolidation of Actions Pending in Same County §2.2C

III. CONVERSION OF UNLAWFUL DETAINER ACTION TO ACTION FOR EJECTMENT §2.3

IV. SEVERING POSSESSION ISSUE FROM RENT-DUE ISSUE §2.4

V. TENANT’S SUIT FOR DECLARATORY OR INJUNCTIVE RELIEF; STAY OF UNLAWFUL DETAINER ACTION

A. Overview: Can Unlawful Detainer Actions Be Enjoined? §2.5

B. Obtaining Injunctive Relief

1. Legal Basis; Grounds §2.5A

2. The Newby Exception: Adequate Remedy at Law §2.5B

3. Overcoming Newby Limitations §2.5C

4. Procedure; Bond Required §2.5D

VI. LANDLORD’S SUIT FOR INJUNCTIVE RELIEF §2.6

VII. ACTIONS AFTER ENTRY OF JUDGMENT §2.7

VIII. ARBITRATION PROVISION IN LEASE §2.8

IX. ADMINISTRATIVE MANDAMUS §2.9

X. BANKRUPTCY §2.10

Self-Help by Landlord

I. USE OF SELF-HELP BY LANDLORD §3.1

II. FORCIBLE ENTRY AND DETAINER §3.2

A. Examples of Forcible Entry and Detainer §3.3

B. Retaking Abandoned Premises Is Not Forcible Entry or Detainer §3.4

C. Recovering Punitive Damages for Forcible Entry or Detainer Requires Showing of Malice §3.5

III. SHUTTING OFF UTILITIES OR OTHERWISE BARRING TENANT’S USE OF PROPERTY

A. Civil Code §789.3 §3.6

B. Remedies Under Public Utilities Code and CC §1942.2 §3.6A

IV. OTHER ACTIONS BY LANDLORD THAT MAKE PREMISES UNINHABITABLE §3.7

V. SELF-HELP EVICTIONS OF TENANTS IN RESIDENTIAL HOTELS §3.8

VI. SELF-HELP EVICTIONS OF LODGERS §3.9

VII. SELF-HELP EVICTIONS OF OCCUPANTS OF TRANSITIONAL HOUSING §3.10

VIII. SELF-HELP EVICTIONS OF HOTEL GUESTS §3.11

IX. ANTI-HARASSMENT STATUTE (CC §1940.2) §3.12

Representing the Tenant; Office Procedures

I. OFFICE PROCEDURES §4.1

II. LAW OFFICE AUTOMATION §4.2

III. LEGAL REFERENCE MATERIALS §4.3

A. Necessary Legal Sources and Forms §4.4

B. Useful Additional Library Materials §4.5

IV. INITIAL STEPS BEFORE DECIDING WHETHER TO REPRESENT TENANT

A. Initial (Telephone) Contact With Prospective Client §4.6

B. Form: Telephone Intake Form §4.7

C. Scheduling Meeting With Prospective Client §4.8

D. Conflict of Interest in Representing Tenant

1. Performing a Conflicts Check §4.9

2. Common Conflict Situations in Unlawful Detainer Actions §4.10

E. Initial Meeting With Prospective Client §4.11

F. Use of Client Interview Questionnaire §4.12

G. Form: Client Interview Questionnaire §4.13

H. Conduct of Initial Meeting §4.14

I. Investigate Tenant’s Relationship With Former Counsel and Any Litigation History §4.15

J. Contact Landlord’s Attorney for Preliminary Look at Opposing View of Case §4.16

K. Initial Assessment of Case §4.17

L. Scope of Initial Assessment §4.18

M. Allaying Tenant’s Fears §4.19

V. REPRESENTATION OF TENANT

A. Decision to Represent Tenant §4.20

1. If Attorney Will Not Represent or Assist Tenant §4.21

2. When More Time Needed for Decision on Representation §4.22

3. Form: Substitution of Attorney—Civil (Without Court Order) (Judicial Council Form MC-050; Mandatory) §4.23

4. If Attorney and Tenant Agree That Attorney Will Represent or Assist Tenant §4.24

5. Disclosure Regarding Professional Liability Insurance §4.24A

B. Representation Agreements and Ground Rules §4.25

1. Delegating Tasks to Client §4.26

2. Contents of Representation Agreement §4.27

3. Form: Representation Agreement—Private Practitioner §4.28

4. Form: Client Retainer Agreement—Legal Services Organization §4.29

C. Limited Scope Representation (Unbundling)

1. Applicable Law §4.29A

2. Checklist: Tenant Fee Agreement §4.29B

D. Deposit of Rent Due Into Client Trust Account §4.30

E. Form: Requirement for Deposit of Rent Into Attorney-Client Trust Account §4.31

VI. PROCEDURE AFTER REPRESENTATION IS UNDERTAKEN

A. Ascertain Goal of Representation §4.32

1. Ascertain Whether Tenant Wants to Continue Living in Rental Unit §4.33

2. Goal of Representation Is Not Necessarily Successful Defense of Unlawful Detainer Action §4.34

B. Counsel Should Investigate Facts of Case §4.35

C. Determining Defense Strategy §4.36

D. Making Choices on Strategy and Tactics §4.37

E. Example of Strategic and Tactical Choices in Procedure When Defective 3-Day Notice Was Served §4.38

1. Strategy and Tactics: Filing Motion to Quash Service of Summons or Demurrer §4.39

2. Strategy and Tactics: Filing an Answer §4.40

3. Strategy and Tactics: Filing Motion for Summary Judgment §4.41

F. Counsel Should Simultaneously File Pleadings, Conduct Discovery, and Negotiate §4.42

Grounds for Eviction

I. GROUNDS FOR EVICTION GENERALLY §5.1

II. GROUNDS FOR EVICTION BASED ON TENANT’S DEFAULT; 3-DAY NOTICE REQUIRED §5.2

III. REASONS FOR TERMINATION NOT BASED ON TENANT’S DEFAULT; NOTICE REQUIRED §5.3

IV. REASONS FOR TERMINATION NOT BASED ON TENANT’S DEFAULT; NOTICE NOT REQUIRED §5.4

V. TERMINATING MOBILEHOME PARK TENANCIES §5.5

VI. EVICTION BROUGHT BY CITY PROSECUTOR OR CITY ATTORNEY §5.6

Three-Day Notice

I. PURPOSE AND EFFECT OF 3-DAY NOTICE §6.1

A. Purpose of 3-Day Notice §6.2

B. If 3-Day Notice Is Defective §6.3

II. IMMEDIATE TENANT RESPONSE TO SERVICE OF 3-DAY NOTICE (BEFORE COMPLAINT HAS BEEN FILED) §6.4

III. STRICT COMPLIANCE WITH STATUTE IS REQUIRED §6.5

IV. NOTICE REQUIRED EVEN IF LEASE PROVIDES THAT IT IS NOT NECESSARY §6.6

V. COMPUTATION OF NOTICE PERIOD §6.7

VI. NOTICE IS VALID EVEN THOUGH IT CONTAINS MORE THAN ONE REASON FOR EVICTION §6.8

VII. NOTICE MAY BE WITHDRAWN §6.9

VIII. FORM OF NOTICE §6.10

A. Notice Must Be in Writing §6.11

B. Description of Premises in Notice §6.12

C. Signature on Notice §6.13

D. Demand for Possession Must Be Unequivocal §6.14

E. Statement of Three Days in Notice Itself May Not Be Required §6.15

F. Notice May Declare Election of Forfeiture §6.16

G. Demand for Rent and Charges

1. Notice to Quit Must Include Demand for Rent as Alternative §6.17

2. Notice Must Specify No More Than Rent Actually Due §6.18

a. Precise Amount of Rent Need Not Be Specified if Calculation of Rent Depends on Tenant’s Accounting §6.19

b. Statement of Rent Due, and Additional Claims in Notice §6.20

c. Effect of Federal Fair Debt Collection Practices Act §6.20A

3. Notice Seeks Less Than Actual Amount Owed §6.21

4. One-Year Limitation on Amount of Rent That Can Be Demanded §6.22

5. Inclusion of Late Charges in Notice §6.23

6. Validity of Late Charges Landlord Claims Are Due

a. As Liquidated Damages §6.24

b. As Violation of Usury Law §6.24A

IX. SERVICE OF NOTICE

A. When Notice May Be Served §6.25

1. “Holidays” Defined §6.26

2. When Tenant May Perform Under Notice §6.27

B. Method of Service §6.28

C. Statutory Requirements for Service of 3-Day Notice §6.29

X. WHEN 3-DAY NOTICE IS BASED ON FAILURE TO PAY RENT §6.30

XI. TENDER OF RENT

A. Method of Tender of Rent §6.31

B. Proof That Tender Was Made §6.32

C. Depositing Money in Landlord’s Bank Account §6.33

D. Effect of Tender of Rent on Obligation to Pay Rent §6.34

E. Time of Tender of Rent

1. Tender of Rent Before Service of Notice §6.35

2. Tender of Rent After Notice Is Served and Before Notice Period Expires §6.36

3. Tender of Rent After Notice Period Has Expired §6.37

XII. WHEN 3-DAY NOTICE IS BASED ON DEFAULT UNDER LEASE OTHER THAN FAILURE TO PAY RENT

A. Violation of Covenant in Lease Generally; Statutory Basis for 3-Day Notice §6.38

1. Express and Implied Covenants §6.39

2. Trivial or Technical Breach Not Sufficient §6.40

3. Waiver and Estoppel §6.41

4. Repeated Acceptance of Late Rent §6.42

5. Effect of Tenant’s Performance §6.43

6. Whether Notice Must Be Given in Alternative §6.44

7. Stating the Breach §6.45

B. Violation of Covenant Against Subletting, Assignment, or Waste; Maintaining Nuisance; or Using Premises for Unlawful Purpose §6.46

1. Subletting, Assignment, and Waste §6.47

2. Nuisance §6.48

3. Unlawful Purpose §6.49

XIII. SALE UNDER EXECUTION, MORTGAGE, OR TRUST DEED §6.50

XIV. COMMON FLAWS IN 3-DAY NOTICE OR ITS SERVICE THAT RENDER NOTICE INEFFECTIVE §6.51

XV. EFFECT OF SERVICE OF MORE THAN ONE NOTICE §6.52

Thirty-Day/Sixty-Day Notices and Termination Without Notice

I. TERMINATING PERIODIC TENANCIES

A. Using 30-Day Notice §7.1

B. Using 60-Day Notice §7.1A

II. IMMEDIATE TENANT RESPONSE TO SERVICE OF NOTICE §7.2

III. TENANT REMAINS IN POSSESSION AFTER TERMINATION

A. “Holdover” Tenant Defined §7.3

B. Tenant Serves Landlord With Notice of Termination and Remains in Possession After Termination Period §7.4

C. Term Has Expired but Tenant Holds Over §7.5

D. Termination of Employment of Resident Employee §7.6

E. Death of Tenant §7.7

F. Expiration of Fixed-Term Lease §7.8

G. Effect of Landlord’s Acceptance of Rent After Expiration of Fixed Term §7.9

H. Effect of Clause Providing for Automatic Extension or Renewal §7.9A

I. Lodger Who Holds Over in Owner-Occupied Dwelling §7.10

J. Expiration of Periodic (Generally Month-to-Month) Lease §7.11

IV. LENGTH OF PERIOD OF NOTICE

A. Shortened Notice Periods by Agreement §7.12

B. Date on Which Mailed Notice Is Effective §7.13

C. Notice Period Must Expire Before Complaint Can Be Filed §7.14

V. WITHDRAWAL OF NOTICE; ACCEPTANCE OF RENT PAYMENTS §7.15

VI. FORM OF NOTICE

A. Notice Must Be in Writing §7.16

B. Description of Premises and Signature §7.17

C. Notice Cannot Be in the Alternative §7.18

D. Statement of 30 or 60 Days §7.19

E. Cover Sheet; Evictions After Foreclosure §7.19A

VII. APPORTIONMENT OF RENT §7.20

VIII. METHOD OF SERVICE §7.21

IX. TENANCY AT WILL §7.22

X. EFFECT OF SERVICE OF 30-DAY OR 60-DAY NOTICE IN CONJUNCTION WITH SERVICE OF 3-DAY NOTICE §7.23

XI. COMMON FLAWS IN NOTICE OR ITS SERVICE, RENDERING NOTICE INEFFECTIVE §7.24

Service of Notices on Tenant

I. EVALUATING SERVICE OF NOTICE §8.1

II. METHODS OF SERVICE OF NOTICE §8.2

A. Personal Service §8.3

B. Substituted Service (CCP §1162(a)(2)) §8.4

C. Service by Posting, Delivery, and Mail (CCP §1162(a)(3)) §8.5

1. Service by Posting Alone Is Insufficient §8.6

2. Service by Mail Alone Is Insufficient §8.7

D. Extension of Tenant’s Time to Act When Notice Is Mailed §8.8

1. Notice Effective on Receipt §8.8A

2. Notice Effective on Mailing §8.8B

3. Effective Date of Notice Extended by CCP §1013 §8.8C

4. Rationale Favoring Extension of Response Period Under CCP §1013 When Notice Is Mailed §8.9

III. IMPROPER SERVICE

A. Effect of Defective Service of Notice §8.10

B. Actual Receipt of Improperly Served Notice §8.11

IV. EFFECT OF SERVICE ON PERSONS OTHER THAN TENANT §8.12

A. Occupants Who Are Neither Tenants nor Subtenants §8.13

B. Cotenants §8.14

C. Subtenants §8.15

V. EXAMPLES OF COMMON MISTAKES IN SERVICE §8.16

VI. PROOF OF SERVICE OF NOTICE §8.17

Negotiating Strategies

I. IMPORTANCE OF NEGOTIATION AND EARLY SETTLEMENT §9.1

A. Definitions of Terms: “Negotiation,” “Target Point,” “Resistance Level,” and “Bottom Line” §9.2

B. Determining Tenant’s Goals and Expectations §9.3

C. Determining the Bargaining Range §9.4

D. Possible Bargaining Outcomes §9.5

E. Evaluating Case §9.6

II. KEY FACTORS TOWARD SETTLEMENT IN TENANT’S FAVOR

A. Merits of Tenant’s Case §9.7

B. Whether Tenant Is Willing to Relinquish Possession §9.8

C. Whether Tenant Is Impervious to Judgment for Damages §9.9

D. Whether Rental Agreement Contains Attorney Fee Clause §9.10

III. DEVELOPING A BARGAINING STRATEGY §9.11

A. Look for Means to Strengthen Tenant’s Case and Weaken Landlord’s §9.12

B. Tenant’s Attorney Must Be Ready to Move Quickly to Take Advantage of Settlement Opportunities §9.13

C. Tenant’s Attorney Should Be Aware of Landlord’s Goals and Fears §9.14

D. Determining How Much to Demand in Initial Settlement Offer §9.15

IV. ADVANTAGES AND DISADVANTAGES OF FACING OPPOSING COUNSEL KNOWN TO TENANT’S COUNSEL §9.16

V. USING BARGAINING TACTICS §9.17

VI. COMMUNICATING WARNINGS TO OPPOSING PARTY §9.18

VII. WHEN LANDLORD’S COUNSEL APPEARS TO BE DRAWING OUT ACTION TO GENERATE FEES §9.19

VIII. DRAFTING SETTLEMENT AGREEMENT §9.20

IX. EVALUATING SUCCESS OF SETTLEMENT AGREEMENT §9.21

Proceeding in Forma Pauperis

I. AUTHORITY FOR OBTAINING WAIVER OF COURT FEES AND COSTS §10.1

II. RIGHT TO PROCEED IN FORMA PAUPERIS §10.2

III. SUBSTANTIVE SHOWING OF INDIGENCE §10.3

IV. CLASSES OF CLAIMANTS AND CATEGORIES FOR WHICH FEES AND COSTS MAY BE WAIVED §10.4

V. FEES AND COSTS IN TRIAL COURT

A. Types of Fees and Costs Waived by Initial Application §10.5

B. Waiver of Other Fees and Costs §10.6

C. Applying to Proceed in Forma Pauperis

1. Procedure for Request for Waiver of Court Fees and Costs §10.7

2. Grant of Waiver of Court Fees and Costs Without Hearing §10.7A

3. Hearing on Applicant’s Entitlement to Waiver of Court Fees and Costs §10.7B

4. Court Issues and Serves Order on Request to Waive Court Fees §10.7C

5. Effect of Denial of Waiver on Pleadings Already Filed by Applicant §10.7D

6. Procedure for Subsequent Determinations of Fee Waiver Eligibility §10.8

D. Right to Waiver or Reimbursement of Discovery Costs §10.9

E. Right to Appointment of Attorney §10.10

VI. FEES AND COSTS ON APPEAL

A. Proceeding in Forma Pauperis §10.11

1. Filing Fees §10.11A

2. Fees for Transcript §10.11B

3. Fees for Interpreter §10.11C

4. Appeal Bond Fees §10.11D

B. Review of Denial of Request §10.12

Service of Summons and Complaint; Motion to Quash Service of Summons

I. SERVICE OF SUMMONS AND COMPLAINT §11.1

II. IMMEDIATE ACTIONS THAT CAN BE TAKEN ON TENANT’S BEHALF AFTER SERVICE OF SUMMONS §11.2

III. ATTEMPTS TO AVOID SERVICE OF SUMMONS §11.3

IV. FORM OF SUMMONS §11.4

V. FORM: SUMMONS—UNLAWFUL DETAINER—EVICTION (JUDICIAL COUNCIL FORM SUM-130) §11.5

VI. SERVICE OF PROCESS §11.6

A. Methods of Service §11.7

B. Strict Construction of Service Statutes §11.8

C. Effect of Defective Service §11.9

D. New Summons Need Not Be Served With Service of Amended Complaint §11.10

E. Return of Service §11.11

F. Personal Service §11.12

G. Substituted Service §11.13

1. Substituted Service on Individual Defendant §11.14

2. Substituted Service on Business Entity §11.15

3. Showing Reasonable Diligence §11.16

4. Recital on Return of Service §11.17

H. Service by Mail With Acknowledgment of Receipt §11.18

I. Service by Posting and Mailing §11.19

J. Order Allowing Service by Posting §11.20

K. Completion Date of Service by Posting §11.21

L. Service by Publication §11.22

VII. SPECIAL APPEARANCE REQUIRED ON MOTION TO QUASH

A. What Constitutes a General Appearance §11.23

B. Making a Special Appearance §11.24

VIII. GROUNDS FOR MOTION TO QUASH §11.25

A. Error in Filled-Out Summons §11.26

B. Failure to Properly Serve All Required Papers §11.27

C. Motion to Quash When Cause of Action Is Not Properly Unlawful Detainer §11.28

D. Complaint Contains Another Cause of Action in Addition to Unlawful Detainer §11.29

E. Complaint Prays for Damages Not Allowed in Unlawful Detainer §11.30

F. Defendant Erroneously Designated

1. Pleading Requirements; “Doe” Defendants §11.31

2. Entering Judgment Against “Doe” Defendant §11.32

IX. CONSTITUTIONAL CHALLENGE TO FIVE-DAYS-TO-ANSWER REQUIREMENT §11.33

X. MOTION TO QUASH—PROCEDURE

A. Time to File Motion; Effect of Motion on Time to File Answer §11.34

B. Form of Notice §11.35

C. Hearing on Motion to Quash; Burden of Proof §11.36

D. Filing Fees §11.37

XI. FORM: MOTION TO QUASH SERVICE OF SUMMONS; POINTS AND AUTHORITIES; DECLARATION OF TENANT §11.38

XII. FORM: ORDER GRANTING MOTION TO QUASH SERVICE OF SUMMONS §11.39

XIII. EFFECT OF GRANTING MOTION TO QUASH §11.40

XIV. EFFECT OF DENIAL OF MOTION TO QUASH §11.41

XV. APPLICATION FOR WRIT OF MANDATE IF MOTION DENIED §11.42

XVI. POSSIBLE EFFECT OF CCP §1167.4 ON WHETHER TIME FOR FILING RESPONSIVE PLEADINGS IS TOLLED BY PETITION FOR WRIT §11.43

XVII. CHART: TIMELINE FOR TENANT ACTIONS IF SUMMONS OR SERVICE OF SUMMONS WAS DEFECTIVE §11.44

Default Judgments

I. PROCEDURE FOR OBTAINING JUDGMENT BY DEFAULT §12.1

II. CHECKLIST: OBTAINING RELIEF FROM ENTRY OF DEFAULT §12.2

III. SERVICE OF APPLICATION FOR ENTRY OF DEFAULT; LANDLORD’S OBLIGATION TO INFORM TENANT §12.3

IV. EFFECT OF ENTRY OF DEFAULT; LATE FILING OF RESPONSE §12.4

V. ENTRY OF DEFAULT; WRIT OF IMMEDIATE POSSESSION §12.5

VI. PROVE-UP HEARING FOR RELIEF OTHER THAN RESTITUTION §12.6

VII. PROCEDURE FOR ENTERING DEFAULT IF SERVICE WAS BY PUBLICATION §12.7

VIII. SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.8

A. Stipulation to Set Aside Default and Default Judgment §12.9

B. Form: Stipulation to Set Aside Default and Default Judgment; Order §12.10

C. Procedures for Applying to Set Aside Default §12.11

D. Grounds for Setting Aside Default and Default Judgment §12.12

1. Mistake, Inadvertence, Surprise, or Excusable Neglect (CCP §473)

a. Relief May Be Granted for Client or Attorney Error §12.13

b. Relief Must Be Granted for Attorney Error §12.14

c. Time Limitations on Bringing Motion Under CCP §473 §12.15

d. Showing in Support of Motion; Declaration §12.16

e. Excuses for Default; Examples §12.17

(1) Mistake of Fact §12.18

(2) Attorney’s Mistake of Law §12.19

(3) Excusable Neglect §12.20

(4) Fraud §12.21

2. Clerical Mistakes; Vacating Void Judgments (CCP §473, ¶4) §12.22

a. Judgment Void on Its Face §12.23

b. Judgment Void in Fact, But Not Void on Its Face §12.24

3. When Service of Summons Does Not Result in Actual Notice to Party (CCP §473.5) §12.25

4. Motion or Separate Action in Equity Available to Vacate Judgment on Ground of Fraud or Mistake §12.26

5. Erroneously Entered Default or Default Judgment §12.27

6. Examples of Erroneously Entered Defaults and Default Judgments §12.28

IX. WHEN WRIT OF EXECUTION HAS BEEN ISSUED §12.29

X. FORMS: MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

A. Form: Notice of Motion to Set Aside Default and Default Judgment; Supporting Memorandum §12.30

B. Form: Declaration Supporting Motion to Set Aside Default and Default Judgment §12.30A

XI. ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.31

XII. FORM: ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.32

XIII. EFFECT OF ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMENT §12.33

Demurring and Moving to Strike

I. ATTACKING LEGAL SUFFICIENCY OF COMPLAINT §13.1

II. THE DEMURRER §13.2

A. Grounds for General Demurrer §13.3

B. Grounds for Special Demurrer §13.4

C. Sustaining Demurrer With or Without Leave to Amend §13.5

D. Demurrer Permitted on Grounds of No Jurisdiction Over Subject Matter §13.6

E. Effect of Another Pending Unlawful Detainer Action §13.7

F. Parties

1. Improper Defendant §13.8

2. Improper Plaintiff §13.9

G. Venue and Trial Court Location §13.10

H. Description of Premises With Reasonable Certainty §13.11

I. Existence of Landlord-Tenant Relationship §13.12

J. Notice of Termination

1. Alleging Service of Notice §13.13

2. Alleging Proper Notice §13.13A

3. Alleging Contents of Notice §13.14

a. Default in Rent §13.15

b. Breach of Covenant Other Than Nonpayment of Rent §13.16

c. Subletting, Waste, Nuisance, or Use for Unlawful Purpose §13.17

d. Expiration of Term

(1) Fixed Term §13.18

(2) Periodic Tenancy §13.19

K. Tenant Continues in Possession §13.20

L. Fraud, Force, or Violence §13.21

M. Compliance With Implied Warranty of Habitability §13.22

N. Statute of Limitations §13.23

O. Checklist: Demurrable Defects in Complaint §13.23A

P. Form: Demurrer to Complaint §13.24

III. MOTION TO STRIKE §13.25

A. Irrelevant, False, or Improper Allegations §13.26

B. Defects Not Subject to Demurrer §13.27

C. Improper Request for Damages §13.28

D. Necessary Allegations for Finding Statutory Damages §13.29

E. Rental Value of Premises After Suit Brought §13.30

F. Attorney Fee Provision in Lease §13.31

G. Verification §13.32

H. Failure to State “§1161a” in Caption §13.32A

I. Sample Form: Motion to Strike §13.33

IV. PROCEDURE FOR DEMURRER AND MOTION TO STRIKE

A. Answer May Be Filed With Demurrer §13.34

B. Timing of Hearing on Demurrer and Motion to Strike §13.35

C. Supporting Memorandum §13.36

D. Effect of Overruling of Demurrer §13.37

E. Frivolous Demurrers §13.38

F. Motion to Strike §13.39

V. FILING FEES §13.40

VI. EXTENSION OF TIME TO PLEAD §13.41

VII. MOTION FOR JUDGMENT ON PLEADINGS §13.42

VIII. SPECIAL (ANTI-SLAPP) MOTION TO STRIKE §13.43

Answering and Alleging Affirmative Defenses

I. RIGHT TO ANSWER §14.1

II. USE OF JUDICIAL COUNCIL FORMS §14.2

III. TIME TO ANSWER §14.3

IV. GOOD CAUSE TO EXTEND TIME TO ANSWER

A. Length of Extension §14.4

B. Steps Tenant Should Take to Get Extension of Time to File Answer §14.5

V. DENIALS §14.6

VI. BASES FOR DENIALS §14.7

VII. AFFIRMATIVE DEFENSES §14.8

A. Priority of Title After Foreclosure Sale §14.9

B. Implied Warranty of Habitability and Retaliatory Eviction §14.10

C. “Equitable” Defenses §14.11

D. Laches §14.12

E. Other Affirmative Defenses §14.13

F. Illegal Discrimination §14.13A

1. Violation of Unruh Civil Rights Act as Defense §14.14

a. Application of Unruh Act to Landlords §14.15

b. Prohibition of Arbitrary Discrimination Under Unruh Act §14.16

c. Minimum Income Policy §14.17

d. Examples of Reach of Unruh Act §14.18

2. Discrimination Based on Age

a. Discrimination Against Families With Children §14.19

b. Senior Citizen Housing §14.20

3. Discrimination Under Federal Fair Housing Acts §14.21

4. Discrimination Under California Fair Employment and Housing Act §14.22

5. Family Day Care Home §14.22A

6. Immigration Status §14.22B

7. Domestic Violence §14.22C

G. Other Violations of Housing Statutes and Ordinances

1. Certificate of Occupancy Violations §14.23

2. Landlord’s Duty to Repair; “Repair and Deduct” Statutes (CC §§1941–1942.5) §14.24

3. Violation of Tenantability Statutes (CC §1942.4) §14.24A

a. Indications That Premises Are Untenantable §14.25

b. Conditions Rebuttably Presumed to Breach Habitability Requirements §14.26

c. If Tenant Causes Condition of Premises §14.27

d. Tenant’s Remedies §14.28

e. Waiver of Tenant’s Rights §14.29

4. Statutory Violations Under Rent Control §14.30

H. Fraud §14.31

I. Adhesion Contract §14.32

J. Waiver and Estoppel §14.33

K. Express Promise to Repair §14.34

1. Dependent or Independent Covenants §14.35

2. Oral Promise Made Before Written Lease §14.36

a. Consideration §14.37

b. Statute of Frauds §14.38

c. Parol Evidence Rule as Applied to Leases §14.39

d. Dependency of Covenants §14.40

3. Tenant’s Arguments for Admission of Oral Promise Made Before or at Time of Execution of Written Agreement §14.41

4. Oral Promise Made Before Entry Into Oral Lease §14.42

5. Promise Made Subsequent to Lease §14.43

6. When Tenant Makes Promise to Repair §14.43A

L. Implied Covenant of Good Faith §14.44

M. Actual Partial Eviction §14.45

N. Notice Served More Than One Year After Rent Due §14.46

O. Breach of Covenant of Quiet Enjoyment §14.47

P. Offsets §14.48

Q. When Tenant Has Vacated Premises §14.49

VII. VERIFICATION §14.50

VIII. FILING ANSWER AFTER RULING ON DEMURRER §14.51

IX. EXTENSION OF TIME TO PLEAD §14.52

X. AMENDING ANSWER §14.53

XI. CROSS-COMPLAINTS §14.54

A. When Tenant Has Vacated Premises §14.55

B. When Landlord Fails to Challenge Cross-Complaint §14.56

C. Procedure §14.57

D. Form: Answer—Unlawful Detainer (Judicial Council Form UD-105) [Deleted] §14.58

Affirmative Defenses—Implied Warranty of Habitability

I. INTRODUCTION

A. Adoption of Implied Warranty of Habitability: Hinson v Delis; Green v Superior Court §15.1

B. Definition of Implied Warranty of Habitability §15.2

C. Supreme Court Rationale in Adopting Implied Warranty Doctrine §15.3

D. Landlord May Be Held in Breach Even if Another Is Responsible for Defect §15.4

E. Time Within Which Landlord Must Correct Defects §15.5

II. USES OF IMPLIED WARRANTY OF HABITABILITY DOCTRINE §15.6

A. When Warranty Used in Suit for Affirmative Damages and Other Relief §15.7

B. Procedure When Using Warranty as Defense in Unlawful Detainer Action §15.8

C. Effect of Tenant Prevailing at Trial on Warranty Defense §15.9

III. ESTABLISHING BREACH OF WARRANTY

A. Facilities Covered §15.10

1. Government-Owned Housing §15.11

2. Portions of Premises Covered by Warranty of Habitability §15.12

B. Housing and Building Code Violations

1. Sources of Housing and Building Code Standards §15.13

2. Examples of Housing and Building Code Violations §15.13A

3. Jury Instructions Relating to Code Violations §15.14

4. Defects Actionable Under Implied Warranty or Negligence But Not Covered by Housing and Building Codes §15.15

C. Failure to Protect Tenants From Criminal Acts §15.16

1. Determining Whether Landlord Has a Duty to Protect Against Criminal Acts §15.17

2. Examples of Duty Not Found or Duty Held Not Breached §15.18

3. Examples of Duty Found or Landlord Held in Breach §15.19

4. Breach of Duty Raised by Allegation of Breach of Implied Warranty §15.20

5. Level of Security at Time Tenant Moves Into Premises §15.21

6. Proving Causation §15.21A

D. Seriousness of Defects

1. Requirement That Defects Be Serious §15.22

2. Examples of Defects Held Serious Enough to Constitute Breach of Implied Warranty §15.23

3. Evidence of Breach §15.24

a. Proving That Existing Conditions Violate Code §15.25

b. Presumption of Breach of Habitability Standards §15.26

c. Viewing the Premises §15.27

E. Special Problems

1. Premises Uninhabitable at Inception of Tenancy §15.28

2. Premises Become Uninhabitable After Tenant Is Served With Notice of Termination §15.29

3. Waiver of Warranty §15.30

4. Defect Caused by Tenant’s Wrongful Action §15.31

5. Defects Caused by Acts of Nature §15.32

IV. NOTICE OF DEFECT §15.33

V. REASONABLE TIME TO REPAIR NOT REQUIRED §15.34

VI. PROTECTIVE ORDERS §15.35

A. When Protective Orders Are Appropriate §15.36

B. Advantages to Tenant of Voluntary Deposit Into Attorney’s Trust Account §15.37

VII. DAMAGES FOR BREACH OF IMPLIED WARRANTY §15.38

A. Relief Based on Affirmative Defense of Breach of Implied Warranty §15.39

1. Period During Which Damages Accrue §15.40

2. Tenant Must Pay “Reasonable Rent” Even if Warranty Breached §15.41

3. Various Approaches to Measuring Damages §15.42

a. “Difference-in-Value” Approach §15.43

b. “Discomfort-and-Annoyance” Approach §15.44

c. “Percentage-Reduction-of-Use” Approach §15.45

4. Limits on Amount by Which Rent May Be Reduced §15.46

5. Amount of Rent Reduction in Subsidized Housing §15.46A

6. Nominal Damage Awards §15.47

B. Actions Brought Under CC §1942.4 §15.48

C. Actions Based on Tort of Breach of Implied Warranty §15.49

D. Hybrid View of Warranty of Habitability—Contract and Tort §15.50

VIII. EFFECT OF RECENT PURCHASE OF PROPERTY BY LANDLORD §15.51

IX. LACK OF CERTIFICATE OF OCCUPANCY §15.52

Affirmative Defenses—Retaliatory Evictions

I. LEGAL FRAMEWORK §16.1

II. SEVERAL SOURCES OF LAW MAY APPLY SIMULTANEOUSLY §16.2

A. Civil Code §1942.5

1. Tenants’ Actions on Habitability (CC §1942.5(a))

a. Protected Parties and Acts §16.3

b. Limitations on Protection

(1) Tenant Cannot Be in Default in Payment of Rent §16.4

(2) Tenant May Not Invoke CC §1942.5(a) More Than Once a Year §16.5

(3) Protective Period Under CC §1942.5 Limited to 180 Days §16.6

(4) Defense Unavailable in Ellis Act Evictions §16.6A

2. Tenant Union Activity (CC §1942.5(c)) §16.7

3. Exercise of “Rights Under Law” (CC §1942.5(c)) §16.8

a. Additional Examples of Acts Protected by CC §1942.5(c) §16.9

b. Examples of Acts Protected Before Enactment of CC §1942.5 §16.10

4. Tenant Cannot Waive Rights (CC §1942.5(d)) §16.11

5. Notice and Burden of Proof (CC §1942.5(e)) §16.12

6. Procedure for Proving Retaliation When Landlord Includes Grounds in Notice (CC §1942.5(e)) §16.13

7. Remedies (CC §1942.5(f)–(g)); Punitive Damages and Attorney Fees §16.14

8. Remedies Not Exclusive (CC §1942.5(h)) §16.15

B. Public Policy; Retaliation for Refusal to Commit Crime Improper §16.16

C. Victims of Domestic Violence §16.16A

D. Other Statutory Rights

1. Retaliation Based on Tenant’s Assertion of Statutory Rights; Implied Protection §16.17

2. Retaliation Based on Tenant’s Assertion of Statutory Rights; Express Statutory Protection §16.18

3. Common Law §16.19

4. Local Rent Control Ordinances §16.20

5. Constitution §16.21

III. LIMITATIONS ON RETALIATORY EVICTION DEFENSE §16.21A

IV. PROOF OF RETALIATORY MOTIVE

A. Sole or Dominant Motive §16.22

B. Treatment of Mixed Motives in Labor Law §16.23

C. Presumptions and Burden of Proof §16.24

D. Evidence §16.25

E. Analogies Drawn From Labor Law to Prove Retaliatory Motive §16.26

F. Form: Affirmative Defense on Ground of Retaliatory Eviction §16.27

Special Considerations Governing Evictions in Rent-Controlled Cities

Myron Moskovitz
Sonya Bekoff Molho
Steven A. MacDonald
Denise McGranahan
Sallyann Molloy

I. SCOPE OF LOCAL RENT CONTROL ORDINANCES

A. Local Control Versus State Preemption §17.1

B. Statewide Vacancy Decontrol

1. Existing Housing §17.1A

a. Phase-In Periods §17.1B

b. Lease Restrictions on Subletting Allowed §17.1C

c. Exceptions to Preemptive Effect §17.1D

2. New Construction and Single-Unit Exclusions §17.1E

a. Phase-In Periods for Condominiums and Single-Family Homes §17.1F

b. Exceptions to Preemptive Effect §17.1G

II. PRACTICE CONSIDERATIONS IN RENT CONTROL JURISDICTIONS §17.2

III. CITIES SUBJECT TO RENT CONTROL §17.3

IV. EVICTIONS AND RENT CONTROL

A. Overview §17.4

B. Just Cause for Eviction §17.5

1. Failure to Pay Rent §17.6

2. Failure to Cure Violation of Rental Agreement §17.7

3. Conduct Constituting a Nuisance §17.8

4. Use of Premises for Illegal Purpose §17.9

5. Refusal to Permit Landlord Access to Premises §17.10

6. Refusal to Execute New Lease §17.11

7. Subletting §17.12

8. Violation of Lease Restricting Occupancy §17.12A

a. Exception: Relative or Domestic Partner of Tenant §17.12B

b. Exception: Surviving Relative of Deceased Tenant §17.12C

c. Exception: Landlord Knowingly Accepts Rent From Occupant §17.12D

9. Rehabilitation of Unit §17.13

10. Demolition or Conversion of Units—Ellis Act Evictions §17.14

a. Constitutional Challenges; Preemption §17.14A

b. Effect of Other State Laws §17.14B

11. Occupancy by Owner or Owner’s Relative §17.15

a. Representing Tenants in Evictions for Owner Occupancy §17.16

b. Good Faith in Owner-Occupancy Evictions §17.17

12. Grounds Not Stated in Ordinance: Termination of Manager; Foreclosure §17.18

13. Failure to Use Premises as Principal Residence §17.18A

C. Notice and Pleading Requirements §17.19

D. Burdens of Proof and Presumptions §17.20

E. Defenses to Evictions §17.21

F. Statute of Limitations §17.22

G. Damages for Unlawful Evictions §17.23

H. Attorney Fees §17.24

V. NEGOTIATING AND DEFENDING ELLIS ACT EVICTIONS

A. Preliminary Considerations

1. Scope of Ellis Act §17.25

2. Representing Organized Tenants §17.26

3. Factual Investigation

a. Review Notices and Status of All Affected Units §17.27

b. Explain Ellis Process to Client §17.28

c. Ascertain Client’s Age, Health, and Economic Status §17.29

d. Investigate Unexpired Leases §17.30

B. Relocation Benefits §17.31

1. Benefits Available for Displaced Tenants Regardless of Income §17.32

2. Landlord’s Misrepresentation of Availability of Benefits §17.33

3. Documentation Proving Eligibility §17.34

4. Other Issues Affecting Payment of Benefits

a. Timely Payment §17.35

b. Waiver of Relocation Fees §17.36

c. One Fee per Unit §17.37

d. Services in Lieu of Fees §17.38

e. Failure to Pay Fees §17.39

C. Technical Defenses Based on Notice and Filing Requirements §17.40

D. Unexpired Leases §17.41

E. Tenant’s Options Regarding Unlawful Detainer Action Under Ellis Act

1. Answering the Complaint §17.42

2. Retaliatory Eviction Defense Limited §17.43

3. Failure to Take All Units Off Market §17.44

4. Other Possible Defenses §17.45

F. Discovering Violations After Eviction

1. Use of Ellis Act to Move Out Long-Term Tenants §17.46

2. Use of Post-Ellis Property for Home Ownership §17.47

a. Effect of State and Local Subdivision Laws §17.48

b. Effect of State and Local Laws Regulating Apartment Conversions §17.49

Special Considerations Governing Evictions From Federally Assisted Housing

Catherine M. Bishop
Nancy Ann Palandati
Deborah A. Collins

I. “FEDERALLY ASSISTED LOW-INCOME HOUSING” DEFINED §18.1

II. ASCERTAINING WHETHER TENANT LIVES IN FEDERALLY ASSISTED HOUSING AND, IF SO, WHAT KIND §18.2

III. TYPES OF FEDERAL HOUSING PROGRAMS §18.3

A. Public Housing §18.3A

B. Section 8 §18.3B

C. HUD-Assisted and -Subsidized Housing §18.3C

D. HUD-Assisted Units Threatened With Prepayment of Mortgage or Opt-Out of Section 8 Contract §18.3D

E. Rural Housing Service (RHS) Subsidized Rental Housing §18.3E

F. Low-Income Housing Tax Credit (LIHTC) §18.3F

G. Other State and Local Programs §18.3G

IV. SUBSTANTIVE RIGHTS IN EVICTION ACTIONS

A. Application of State Law §18.4

B. Evictions After Foreclosure

1. Preemptive Measures Governing Evictions §18.4A

2. Postponing Sale of Multifamily Residential Buildings §18.4B

C. Good Cause Requirement §18.5

1. Public Housing §18.6

2. Project-Based Section 8 and HUD-Assisted and -Subsidized Housing §18.7

3. Section 8 Housing Choice Voucher Program §18.8

4. Rural Housing Service (RHS) Rental Housing §18.9

5. State and Local Housing Programs for Low-Income Families §18.10

6. Other Housing Programs for Low-Income Families §18.11

D. Facts Constituting Good Cause §18.12

1. Failure to Pay Rent §18.13

2. Serious Tenant Wrongdoing, Including Criminal Activity

a. Violation of Lease or State or Federal Law §18.14

b. Drug or Criminal Activity

(1) Statutory Authorization and Standards for Eviction §18.15

(2) Federal Standards Upheld in Rucker §18.16

(3) When State Law Standards Apply §18.16A

(4) Aftermath of Rucker; Unresolved Issues §18.17

(5) Permission to Obtain Criminal Records, Drug Treatment Information §18.17A

c. Exception: Victims of Domestic Violence Protected §18.17B

3. Violation of Program Regulations §18.18

4. Examples of Improper Grounds for Evicting Tenant §18.19

E. Defending Evictions

1. Project Owner’s Abuse of Power §18.20

2. Defensive Strategies in PHA Evictions §18.20A

3. Bankruptcy Discharge of Delinquent Rent in Public or Subsidized Housing §18.20B

V. EVICTION PROCEDURES: NOTICE AND ADMINISTRATIVE HEARING OR MEETING §18.21

A. Notice Requirements §18.22

B. Pretermination Grievance Hearing or Meeting §18.23

C. Notice and Hearing Required Before Forfeiture Under Federal Antidrug Statute §18.24

D. Relief From Forfeiture §18.25

VI. DAMAGES MAY BE AWARDED FOR WRONGFUL EVICTION FROM FEDERALLY ASSISTED HOUSING §18.26

VII. ENJOINING EVICTIONS FROM FEDERALLY ASSISTED HOUSING §18.27

Special Considerations Governing Evictions in Commercial Tenancies

Myron Moskovitz
Clifford R. Horner

I. OVERVIEW OF UNLAWFUL DETAINER IN COMMERCIAL TENANCIES §19.1

II. THREE-DAY NOTICE TO PAY RENT OR QUIT

A. Lease Provisions May Affect Eviction Procedures §19.2

B. Statutory Requirements

1. Estimated Rent (CCP §1161.1) §19.3

2. When Rent Is Not Estimated §19.4

3. Service Requirements §19.5

4. Landlord’s Acceptance of Partial Tender of Rent §19.6

III. THREE-DAY NOTICE FOR VIOLATION OF COVENANT OTHER THAN PAYMENT OF RENT §19.7

A. Covenants Restricting Assignments

1. Common Law Rules §19.8

2. Statutory Law §19.9

B. Covenants Regarding Tenant Improvements §19.9A

C. Covenants Restricting Change in Use §19.10

IV. TERMINATION NOTICES FOLLOWING FORECLOSURE §19.10A

V. TERMINATION UNDER EXPRESS LEASE PROVISIONS §19.10B

VI. DEFENDING EVICTION BY ASSERTING BREACH OF LEASE BY LANDLORD

A. Covenant to Repair; Implied Warranty of Habitability

1. Dependent Versus Independent Covenants §19.11

2. Argument Favoring Adoption of Dependent Covenant Doctrine in Commercial Leases §19.12

a. Minimize Litigation §19.13

b. Eliminate Unfair Burdens on Tenant §19.14

c. Protect Tenant’s Right to Pursue Livelihood §19.15

d. No Impact on Summary Nature of Unlawful Detainer §19.16

e. Out-of-State Decisions Favor Interdependent Covenants §19.17

3. Effect of Toxic Mold Legislation §19.17A

B. Covenant of Quiet Enjoyment §19.18

C. Other Contractual Defenses §19.18A

D. Implied Warranty of Fitness §19.19

E. Implied Covenant of Good Faith §19.20

1. Duty to Maintain Third Party Leases §19.21

2. Sublessor Required to Exercise Option to Extend Master Lease §19.22

3. “No Compete” Covenant Applied to Expansion of Shopping Center §19.23

4. Good Faith Covenant Applied in Favor of Landlord §19.24

VII. NONCONTRACTUAL DEFENSES TO COMMERCIAL EVICTION ACTIONS

A. Retaliatory Eviction §19.25

B. Good Cause to Terminate Petroleum Distributorship §19.26

C. Equitable Defenses §19.27

VIII. LANDLORD’S RIGHT OF ENTRY PENDING EVICTION §19.28

Effect of Sale of Property on Unlawful Detainer Proceedings

I. EFFECT OF SALE OF PROPERTY ON UNLAWFUL DETAINER §20.1

A. Sale Before Eviction Action Is Begun §20.2

B. Sale After Eviction Action Has Begun §20.3

II. EVICTING AFTER SALE UNDER CCP §1161a §20.4

A. Use of 30-Day Notice on Residential Owner’s Tenant or 60-Day or 90-Day Notice After Foreclosure §20.5

1. When 60-Day Notice Applies §20.6

2. Additional Preforeclosure Notice of Sale §20.7

3. Postponing Sale of Multifamily Residential Buildings §20.7A

4. When 90-Day Notice Applies §20.8

B. Litigating Title in Unlawful Detainer Action §20.9

C. Effect of Local Eviction Control Ordinances §20.10

D. Effect of Section 8 Eviction Controls §20.11

E. Postforeclosure Bank Eviction Policies §20.12

F. Defending Postforeclosure Evictions: Priority of Title, Title Dispute, Improper Foreclosure, or Improper Notice Following Foreclosure §20.13

III. UTILITY CUTOFFS §20.14

Effect of Filing Bankruptcy on Proceedings in Unlawful Detainer

I. EFFECT OF TENANT FILING BANKRUPTCY

A. Automatic Stay on Evictions §21.1

B. Exceptions to Stay for Residential Tenancies

1. After Entry of Judgment for Eviction §21.1A

2. When Eviction Based on Endangerment of Property or Illegal Use of Controlled Substance §21.1B

C. Significant Changes Under 2005 Act §21.1C

II. LANDLORD MAY SEEK RELIEF FROM AUTOMATIC STAY §21.2

III. PENALTY FOR IMPROPER FILING OF BANKRUPTCY §21.3

IV. LEASE CLAUSES PURPORTING TO TERMINATE LEASE ON FILING OF BANKRUPTCY §21.4

V. TERMINATION OF UTILITIES AND OTHER SERVICES §21.5

VI. ASSUMPTION OF LEASE BY TRUSTEE §21.6

VII. SECURITY DEPOSITS §21.7

VIII. DISADVANTAGES TO TENANT OF FILING FOR BANKRUPTCY §21.8

IX. FILING PETITION IN BANKRUPTCY AS TACTIC IN UNLAWFUL DETAINER ACTION §21.9

Summary Judgment

I. PURPOSE OF MOTION FOR SUMMARY JUDGMENT §22.1

II. TIMING OF MOTION §22.2

III. BURDEN OF PROOF §22.2A

IV. FACTUAL BASES FOR TENANT’S MOTION FOR SUMMARY JUDGMENT §22.3

V. MOVING PARTY’S SUPPORTING PAPERS §22.4

VI. OPPOSING PARTY’S COUNTERDECLARATIONS; ORDERS §22.5

VII. SUMMARY ADJUDICATION OF ISSUES §22.6

Discovery

I. PURPOSES OF DISCOVERY §23.1

II. STATUTORY METHODS OF DISCOVERY §23.2

III. AVAILABILITY OF DISCOVERY IN UNLAWFUL DETAINER §23.3

IV. DEFENSE STRATEGY SHOULD INCLUDE PLAN FOR DISCOVERY §23.4

V. FORMAL AND INFORMAL DISCOVERY METHODS §23.5

VI. FORMULATING A DISCOVERY PLAN

A. When to Make and Implement Plan §23.6

B. Coordinating Various Discovery Techniques §23.7

C. Timeline for Initiating Tenant Discovery Directed to Landlord §23.8

D. Actions to Take if Discovery Cannot Be Completed Before Trial Date §23.9

VII. PURSUING DISCOVERY BEFORE ACTION FILED §23.10

A. Methods of Discovery Available Before Action Is Filed §23.11

B. Procedure for Pursuing Discovery Before Action Is Filed §23.12

C. Usefulness of Pursuing Discovery Before Action Is Filed §23.13

VIII. DISCOVERY AFTER SUMMONS AND COMPLAINT ARE SERVED §23.14

A. Time Limits on Responding to Discovery Requests §23.15

B. Preventing Setting of Trial Date Before Discovery Is Complete §23.16

C. Petitioning for Writ of Mandate if Court Refuses to Extend Trial Date §23.17

IX. METHODS OF DISCOVERY §23.18

A. Oral Depositions §23.19

1. Usefulness of Depositions §23.20

2. Expense of Depositions §23.21

3. Procedure for Oral Depositions

a. When Deposition May Be Taken §23.22

b. Setting Depositions of Parties §23.23

c. Setting Depositions of Nonparties §23.24

d. Witness and Mileage Fees §23.25

e. Procedures at Deposition §23.26

f. Inspection of Documents at Deposition §23.27

g. Reviewing, Correcting, and Approving Deposition §23.28

B. Written Interrogatories §23.29

1. Usefulness of Written Interrogatories §23.30

2. Disadvantages of Written Interrogatories §23.31

3. Limit on Number of Interrogatories That May Be Propounded §23.32

4. Form: Declaration for Additional Discovery §23.33

5. Procedure for Propounding Written Interrogatories §23.34

C. Pretrial Demand for Production of Documents or Inspection §23.35

1. Usefulness of Demand for Production §23.36

2. Introduction Into Evidence of Documents Produced §23.37

3. Tactical Considerations in Requesting Production §23.38

4. Protective Orders Against Request for Production §23.39

D. Requests for Admissions §23.40

1. Usefulness of Requests for Admissions §23.41

2. Procedure for Requests for Admissions §23.42

3. Form: Declaration in Support of Request for Additional Admissions §23.43

4. Effect of Failure to Respond to Request for Admissions §23.44

5. Effect of Failure to Admit Fact Later Found True §23.45

6. Requests for Admissions May Not Be Combined With Other Discovery Requests §23.46

7. Effect of Admission Made in Response to Request §23.47

8. Admissions and Responses Are Not Filed But Retained by Parties §23.48

X. SANCTIONS FOR REFUSAL TO MAKE DISCOVERY §23.49

A. Categories of Sanctions That May Be Imposed §23.50

B. What Constitutes Misuse of Discovery Process §23.51

C. Specific Sanctions That Court May Impose §23.52

Rights of Occupants Not Named in Lease

I. OCCUPANTS WHO ARE NOT NAMED IN LEASE §24.1

II. PREJUDGMENT CLAIM OF RIGHT TO POSSESSION §24.2

A. Service of Prejudgment Claim to Right to Possession Form

1. Service by Marshal, Sheriff, or Process Server §24.3

2. Time of Service §24.4

3. Service on Occupants Other Than Tenant or Subtenant §24.5

B. Effect of Proper Service by Landlord of Prejudgment Claim Form §24.6

C. Effect of Inadequate Service by Landlord of Prejudgment Claim Form §24.7

D. Judicial Council Form CP10.5: Prejudgment Claim of Right to Possession §24.8

III. POSTJUDGMENT CLAIM OF RIGHT TO POSSESSION §24.9

A. Removal of Occupant by Sheriff or Marshal §24.10

B. Procedure by Occupant in Making Postjudgment Claim of Right to Possession §24.11

C. Judicial Council Form CP10: Claim of Right to Possession and Notice of Hearing §24.12

IV. HEARING ON CLAIM OF RIGHT TO POSSESSION §24.13

V. PROCEDURE AT HEARING ON CLAIM OF RIGHT TO POSSESSION §24.14

VI. PROCEEDING WITH ENFORCEMENT OF WRIT OF POSSESSION §24.15

Trial

I. SETTING CASE FOR TRIAL

A. Request and Counter-Request to Set Trial §25.1

B. Setting Date for Trial §25.2

C. Effects of Local Practices §25.3

1. Trial by Temporary Judge §25.4

2. Procedure After Trial Date Is Set §25.5

D. Resetting Trial Date §25.6

1. Procedure If Parties Do Not Agree on New Trial Date §25.7

2. Determining Whether Moving Party Has Shown Good Cause §25.8

3. Determining Whether There Is Reasonable Probability Plaintiff Will Prevail at Trial §25.9

4. Determining Damages Landlord Might Suffer §25.10

5. Reduction of Damages Based on Diminution of Value or Setoff §25.11

6. Order to Deposit Potential Damages §25.12

7. Advancing Trial Date on Tenant’s Failure to Make Deposit §25.13

8. Costs of Escrow Recoverable by Prevailing Party §25.14

9. Distribution of Funds Held in Escrow After Trial §25.15

II. IF TENANT VACATES PREMISES BEFORE TRIAL §25.16

III. PRETRIAL CONFERENCE §25.17

IV. RIGHT TO JURY TRIAL §25.18

A. Jury Instructions §25.19

B. Waiver of Jury Trial

1. Bases for Waiver §25.20

2. Requesting Jury Trial After Waiver §25.21

3. Tenant’s Right to Jury Trial on Equitable Issues §25.22

a. Examples of Legal Issues §25.23

b. Examples of Equitable Defenses §25.24

C. Jury Verdicts

1. General and Special Verdicts §25.24A

2. Judgment Based on Jury Verdict §25.24B

V. DISQUALIFYING JUDGE §25.25

A. Challenge for Cause (CCP §170.1) §25.26

1. Conditions That May Not Be Used as Grounds to Disqualify Judge §25.27

2. Bias or Prejudice §25.28

3. Procedure for Disqualification §25.29

B. Peremptory Challenges (CCP §170.6)

1. Grounds for Challenge §25.30

2. Procedure for Peremptory Challenges §25.31

3. Time Limits for Moving to Challenge §25.32

4. Effect of Challenge §25.33

C. Tactical Considerations §25.34

VI. SUBPOENAS

A. Subpoenas for Witnesses §25.35

B. Subpoena Not Necessary to Require Attendance of Party or Agent §25.36

C. Service of Subpoena §25.37

D. Fees for Appearing in Court in Response to Subpoena §25.38

E. Subpoena Duces Tecum (Books and Papers) §25.39

1. Service of Subpoena Duces Tecum; Affidavit of Good Cause Necessary §25.40

2. Fees for Appearing in Court in Response to Subpoena Duces Tecum §25.41

3. Subpoena Duces Tecum Not Necessary for Party §25.42

F. Penalties for Disobeying Subpoena §25.43

VII. EVIDENCE PROBLEMS

A. Prima Facie Case; Nonsuit §25.44

B. Proof of Tenant’s Possession §25.45

C. Proof of Service of Notice §25.46

D. Proof of Rent Due §25.47

E. Judicial Notice §25.48

F. Use of Books and Records §25.49

G. Laying Foundation for Admission of Business Record §25.50

H. Proof of Damages §25.51

I. Waiver of Rent During Trial §25.52

J. Proving Retaliatory Eviction §25.53

1. Strength of Retaliatory Motive §25.54

2. Evidence of “Just Cause” to Evict §25.55

3. Evidence of Retaliatory Motive

a. Evidence Inferred by Conduct §25.56

b. Indirect Evidence §25.57

K. Fees for Appointment of Interpreter §25.58

VIII. TRIAL BRIEFS §25.59

IX. CONTINUANCES §25.60

A. Grounds for Continuance §25.61

1. Unavailability of Counsel §25.62

2. Unavailability of Party §25.63

3. Unavailability of Witness §25.64

4. Other Statutory Grounds for Granting Continuance §25.65

5. Unexpected Testimony §25.66

B. Procedure for Obtaining Continuance §25.67

1. Good Cause Required §25.67A

2. Stipulation for Continuance §25.67B

3. Conditions for Obtaining Continuance §25.67C

4. Appealability of Order Denying Continuance §25.67D

X. DEFAULTS AT TRIAL §25.67E

XI. CONFORMING PLEADINGS TO PROOF

A. General Law for Ordinary Civil Actions §25.68

B. Special Law for Unlawful Detainer Complaints

1. Amendment Based on Trial Evidence §25.68A

2. Amendments Before Trial Excluded §25.68B

3. Permissible Scope of Amendments §25.68C

C. Amended Versus Supplemental Complaint §25.68D

XII. STATEMENT OF DECISION §25.69

Judgment

I. JUDGMENTS IN UNLAWFUL DETAINER ACTIONS §26.1

II. CONDITIONING JUDGMENT FOR TENANT ON PAYMENT OF RENT §26.2

III. TENANT MUST BE IN POSSESSION §26.3

IV. WHAT COURT CAN AWARD

A. Judgment Can Grant Possession of Premises §26.4

B. “Rent” and “Damages” §26.5

1. Determining Whether Amount Due Is Rent or Damages; Period Covered §26.6

2. Rent §26.7

3. Apportionment of Rent §26.8

4. Damages

a. Damages Occurring Before Holdover §26.9

b. Reasonable Rental Value During Holdover §26.10

c. Damages Against Subtenant §26.11

d. Damages After Judgment §26.12

e. Statutory Damages for Malicious Holdover §26.13

C. Forfeiture §26.14

D. Notice May Specify Election to Declare Forfeiture §26.15

E. Interest May Be Awarded §26.16

F. Costs May Be Awarded §26.17

G. Attorney Fees Authorized by Lease or Statute §26.18

1. Reciprocity of Attorney Fee Provision §26.19

2. Award of Fees Under Invalid Rental Agreement §26.20

3. Prevailing Party §26.21

4. Entitlement to Attorney Fees on Tender and Deposit of Amount Owed §26.22

5. Prevailing Party When Tenant Raises Habitability as Affirmative Defense §26.23

6. Size of Fee Award; Local Fee Schedules §26.24

7. Fees Awardable After Settlement Offer Rejected §26.25

8. Fees Awardable Beyond Court’s Jurisdictional Limit §26.26

9. Fees Awardable to Public Interest Attorneys §26.27

10. Fees Awardable for All Issues Argued §26.28

11. Attorney Fees Payable to Party—Not to Attorney §26.29

12. Attorney Fees Awardable as Sanctions Regardless of Lease Provision §26.30

13. Effect of Voluntary Dismissal §26.31

14. Fees Awardable for Enforcement of Right Important to Public Interest §26.32

15. Procedures for Requesting Fees §26.33

16. Related Statutes Providing for Award of Attorney Fees §26.34

H. Limitation on Award for Judgments in Municipal Court of Less Than $10,000 §26.35

I. Witness Fees May Be Awarded §26.36

J. Costs of Execution of Judgment May Be Recovered §26.37

V. EFFECT OF JUDGMENT ON CONSUMER CREDIT REPORTING §26.38

VI. RES JUDICATA AND COLLATERAL ESTOPPEL EFFECT OF JUDGMENT §26.38A

VII. UNLAWFUL DETAINER JUDGMENT FORMS

A. Form: Order for Judgment for Defendant Conditioned on Payment of Rent After Trial (Warranty of Habitability) §26.39

B. Form: Judgment—Unlawful Detainer (Judicial Council Form UD‑110) §26.40

C. Form: Judgment—Unlawful Detainer Attachment (Judicial Council Form UD‑110S) §26.41

D. Form: Stipulation for Entry of Judgment (Unlawful Detainer) (Judicial Council Form UD‑115) §26.42

Posttrial Motions

I. POSTTRIAL MOTIONS COVERED §27.1

II. FIVE-DAY STATUTORY STAY OF EXECUTION (FOR APPLICATION FOR RESTORATION OF POSSESSION) §27.2

III. DISCRETIONARY STAY OF EXECUTION

A. Pending Hearing on Posttrial Motions §27.3

B. Temporary Stay Based on Hardship §27.4

C. Form: Ex Parte Application for Stay of Execution §27.5

D. Form: Memorandum in Support of Ex Parte Application for Stay of Execution §27.6

IV. MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT §27.7

A. Grounds for Judgment Notwithstanding Verdict §27.8

B. Procedure for Making Notice of Motion §27.9

C. Time of Ruling on Motion §27.10

D. Form: Notice of Motion for Judgment Notwithstanding Verdict §27.11

E. Form: Order Granting or Denying Judgment Notwithstanding Verdict §27.12

V. MOTION FOR NEW TRIAL §27.13

A. Grounds for Motion for New Trial §27.14

B. Court’s Power to Vacate or Modify Judgment §27.15

C. Notice of Motion for New Trial §27.16

D. Time for Making Motion for New Trial §27.17

E. Form: Notice of Motion for New Trial §27.18

F. Form: Declaration in Support of Notice of Motion for New Trial §27.19

G. Hearing on Motion §27.20

H. Court’s Time to Rule on Motion §27.21

VI. MOTION TO SET ASIDE AND VACATE JUDGMENT §27.22

A. Notice of Motion §27.23

B. Time for Making Motion §27.24

C. Form: Notice of Motion to Vacate Judgment and Enter Different Judgment §27.25

D. Form: Order Granting Motion to Vacate Judgment and Enter Different Judgment (CCP §663) §27.26

VI. APPLICATION FOR RELIEF FROM FORFEITURE §27.27

A. Grounds for Relief From Forfeiture §27.28

B. Rent Must Be Paid and Other Covenants Performed §27.29

C. Procedure for Seeking Relief From Forfeiture §27.30

D. Form: Application for Relief From Forfeiture §27.31

E. Effect of Grant or Denial of Relief §27.32

Enforcement of Judgment—Removing Tenant and Tenant’s Belongings

I. REMOVING TENANT §28.1

A. Contents of Writ §28.2

B. Sending Scare Notice to Tenant After Judgment Is Entered §28.3

C. Procedures for Serving and Enforcing Writ of Possession §28.4

D. Sheriff Must Evict if Tenant Does Not Vacate Within 5 Days §28.5

E. Effect of Failure by Sheriff to Act by Return Date of Writ §28.6

F. Judicial Council Form EJ‑130: Writ of Possession of Real Property §28.7

II. SHERIFF’S DEPARTMENT PRACTICES AND CHARGES §28.8

III. DISPOSITION OF TENANT’S PERSONAL PROPERTY

A. Personal Property Not Removed by Tenant §28.9

B. Recovery of Personal Property After Eviction §28.10

C. Treating Tenant’s Personal Property as Lost or Abandoned §28.11

D. Claim by Tenant for Personal Property (CC §1965) §28.12

E. Advantages and Disadvantages of Requesting Surrender §28.13

F. Form: Claim for Return of Personal Property Under CC §1965 §28.14

IV. DISPOSITION OF LOST PROPERTY §28.15

V. DISPOSITION OF PROPERTY ABANDONED BY TENANT §28.16

A. Landlord Must Store Abandoned Property in Safe Place §28.17

B. Notice Requirements for Disposal of Abandoned Property §28.18

C. Release of Property to Owner on Payment of Costs §28.19

D. Storage Costs §28.20

E. Sale of Unclaimed Property; Liability of Landlord §28.21

VI. EXECUTION ON TENANT’S PERSONAL PROPERTY IN LANDLORD’S POSSESSION §28.22

VII. SETTING ASIDE IMPROPER EXECUTION SALE §28.23

VIII. SUPPLEMENTAL COST BILL §28.24

IX. MOTION TO QUASH OR RECALL WRIT OF EXECUTION §28.25

X. CLAIM OF EXEMPTION §28.26

A. Judicial Council Form EJ‑160: Claim of Exemption §28.27

B. Hearing on Objections to Claim of Exemption §28.28

C. Judgment on Claim of Exemption §28.29

XI. WAGE GARNISHMENTS §28.30

Appeals

I. APPEAL PROCEDURES §29.1

A. Limited Civil Cases: Timeline for Action After Entry of Judgment §29.2

B. Unlimited Civil Cases: Timeline for Action After Entry of Judgment §29.3

II. APPEALABLE JUDGMENTS AND ORDERS §29.4

III. VACATING PREMISES DOES NOT MOOT TENANT’S APPEAL §29.5

IV. FRIVOLOUS APPEALS §29.6

V. OBTAINING IMMEDIATE TEMPORARY STAY OF ENFORCEMENT OF JUDGMENT §29.7

VI. STAY PENDING APPEAL §29.8

A. Evaluating Need for Stay Pending Appeal §29.9

B. Proper Judge §29.10

C. Grounds on Which Stay May Be Granted §29.11

VII. UNDERTAKING ON APPEAL §29.12

VIII. FORM: WAIVER OF SECURITY §29.13

IX. FORM: NOTICE OF MOTION FOR STAY §29.14

X. REVIEW OF DENIAL OF STAY §29.15

XI. CLEAR ABUSE OF DISCRETION MUST BE SHOWN §29.16

XII. SCOPE OF TRIAL COURT JURISDICTION PENDING APPEAL §29.17

XIII. EVALUATING WHETHER TO APPEAL §29.18

XIV. SUMMARY OF APPELLATE PROCEDURE

A. Applicable Rules §29.19

B. Appeals From Limited Civil Cases §29.20

C. Appeals From Other Superior Court Actions §29.21

D. Standard of Review §29.22

E. Initiating Appeal

1. Notice of Appeal §29.23

2. Form: Notice of Appeal §29.24

3. Form: Notice of Appeal/Cross-Appeal (Limited Civil Case) (Judicial Council Form APP-102) §29.25

4. Form: Notice Designating Record on Appeal (Limited Civil Case) (Judicial Council Form APP-103) §29.26

5. Filing Deadlines Applicable to Appeals From Limited Civil Cases §29.27

6. Filing Deadlines Applicable to Other Superior Court Judgments §29.28

7. Record on Appeal §29.29

a. Electronic Recording or Agreed Statement §29.30

b. Form: Proposed Statement on Appeal (Limited Civil Case) (Judicial Council Form APP-104) §29.31

c. Requesting Reporter’s Transcript §29.32

F. Filing Briefs in Appellate Division of Superior Court §29.33

G. Filing Briefs in Court of Appeal §29.34

H. Purpose of Oral Argument §29.35

I. Decision on Appeal and Rehearing §29.36

J. Relief for Tenant After Reversal §29.37

K. Costs and Attorney Fees on Appeal §29.38

L. Abandonment of Appeal §29.39

M. Transfer to District Court of Appeal

1. Transfer of Appeal of Limited Civil Case From Superior Court to Court of Appeal §29.40

2. When Transfer Is Denied by District Court §29.41

Civil Writs

I. CIVIL WRITS IN GENERAL §30.1

II. NATURE AND SCOPE OF WRIT §30.2

A. Conditions Under Which Writ of Mandate Will Issue §30.3

B. Alternative and Peremptory Writs of Mandate §30.4

C. Factors in Deciding Whether to Seek Writ §30.5

III. OBTAINING A STAY OF EXECUTION PENDING APPEAL OR DECISION ON PETITION FOR WRIT OF MANDATE §30.6

IV. PERSUADING COURT THAT WRIT SHOULD BE GRANTED §30.7

A. Inadequacy of Other Remedy Must Be Shown §30.8

B. No Direct Appeal §30.9

C. Common Situations in Which Relief by Writ Is Sought §30.10

D. Direct Appeal Possible §30.11

V. PROCEDURE IN OBTAINING WRIT

A. Relief Must First Be Sought in Lower Court §30.12

B. Court in Which Writ Petition Must Be Filed §30.13

C. Applicable Statutes and Rules of Court §30.14

D. Names of Parties §30.15

E. Time Limitation §30.16

F. Procedures in Superior Court §30.17

G. Pleadings in Mandamus Proceeding §30.18

1. Contents of Petition §30.19

2. Common Errors in Petitions for Writ §30.20

3. Opposition to Issuance of Writ §30.21

H. Hearing §30.22

I. Issuance of Peremptory Writ §30.23

J. Mootness §30.24

K. Damages and Costs §30.25

VI. REVIEW OF SUPERIOR COURT ACTION ON WRIT §30.26

VII. APPEAL FROM DISTRICT COURT OF APPEAL DECISION TO SUPREME COURT §30.27

Return of Security Deposit and Disposition of Last Month’s Rent

I. TENANT’S RIGHTS IN SECURITY DEPOSIT AND LAST MONTH’S RENT §31.1

II. PAYMENTS TO LANDLORD ON SIGNING OF LEASE THAT ARE NOT CONSIDERED “SECURITY” §31.2

III. SECURITY “DISGUISED” AS ADVANCE RENT §31.3

IV. EFFECT OF DESIGNATION OF DEPOSIT AS “LAST MONTH’S RENT” RATHER THAN “SECURITY DEPOSIT” §31.4

V. LIMITATIONS ON AMOUNT OF SECURITY THAT MAY BE REQUIRED §31.5

VI. TENANT’S CLAIM TO SECURITY HAS PRIORITY OVER THAT OF LANDLORD’S CREDITORS §31.6

VII. SECURITY MAY NOT BE NONREFUNDABLE §31.7

VIII. PROVING AMOUNT OF SECURITY DEPOSIT §31.8

IX. LIMITS ON LANDLORD’S USE OF SECURITY DEPOSIT §31.9

X. LANDLORD’S DUTY TO RETURN DEPOSIT §31.10

A. Tenant’s Right to Request Inspection of Premises and Cure Deficiencies; Use of Deposit §31.10A

B. Tenant’s Right to Refund of Security Deposit Balance and Accounting §31.10B

XI. LANDLORD’S SALE OR OTHER TRANSFER OF PREMISES §31.11

XII. INTEREST ON SECURITY DEPOSIT §31.12

XIII. DAMAGES FOR LANDLORD’S IMPROPER RETENTION OF DEPOSIT §31.13

XIV. EFFECT ON UNLAWFUL DETAINER §31.14

Judicial Notice ?? not so fast

All banks love to use judicial notice to establish their position but with all the robo signing the evidence is being excluded.

ROBERT HERRERA et al., Plaintiffs and Appellants,

DEUTSCHE

BANK NATIONAL TRUST COMPANY et al., Defendants and Respondents.

No. C065630.

Court of Appeals of California, Third District, El Dorado.Filed May 31, 2011.

NOT TO BE PUBLISHED

MURRAY, J.

SUMMARY

Plaintiffs Robert and Gail Herrera lost their house in South Lake Tahoe to a nonjudicial foreclosure sale.They brought suit to set aside that sale. They challenge whether the parties that conducted the sale,defendants Deutsche Bank National Trust Company (the Bank) and California Reconveyance Company(CRC), were in fact the beneficiary and trustee, respectively, under a deed of trust secured by theirproperty, and thus had authority to conduct the sale. Plaintiffs also contend that they are entitled to berepaid for the expenses they incurred in repairing and insuring the property and paying back taxes if defendants are successful in establishing their interest in the property.Defendants moved for summary judgment. In support of their motion, they requested that the trialcourt take judicial notice of recorded documents, including an Assignment of Deed of Trust and aSubstitution of Trustee. Defendants asserted that these documents established the authority of theBank and CRC to conduct the foreclosure sale. Defendants also provided a declaration by a custodian of records for CRC, in which the custodian did not expressly declare that the Bank was the beneficiary andCRC the trustee. Instead, she merely

declared that an Assignment of Deed of Trust and a Substitutionof Trustee had been recorded

and these recorded documents indicated the Bank had been assigned thedeed of trust and that CRC had been substituted as trustee.Plaintiffs appeal from a judgment after the trial court granted defendants’ motion for summary judgment. They contend defendants failed to carry their burden in moving for summary judgment andthe trial court erred in taking judicial notice of and accepting as true the contents of certain recordeddocuments. We agree and reverse the judgment in part. For the reasons discussed herein, we affirm the judgment as to the fourth cause of action, plaintiffs’ claim of unjust enrichment.

FACTUAL AND PROCEDURAL BACKGROUND

In June of 2008, plaintiffs purchased the property at 739 Alameda Avenue, South Lake Tahoe (theProperty) at a foreclosure sale. On February 27, 2009, CRC recorded a “Notice of Default and Election toSell [the Property] Under Deed of Trust.” On May 29, 2009, CRC recorded a Notice of Trustee’s Sale. OnJuly 6, 2009, CRC recorded a Trustee’s Deed upon Sale, showing the Property had been conveyed to theBank, as foreclosing beneficiary. Plaintiffs brought suit against the Bank, CRC and others to set aside thesale, cancel the trustee’s deed, quiet title to the Property, and for unjust enrichment.In the first cause of action, plaintiffs sought to set aside the trustee’s sale. Plaintiffs alleged theypurchased “this run-down, filthy, distressed property” at a foreclosure sale, rehabilitated and repairedthe Property and paid over $4,000 in back property taxes. They had no idea there might be a deed of trust from 2003, as it did not appear in the title search. About a year later, after plaintiffs had completed repair work on the Property, the Bank, “some mega-too-big-to-fail recipient of billions of tax payer dollars” asserted an ownership interest in the Property. The Bank claimed to be the owner of the Property by virtue of a trustee’s deed recorded “by an entity purporting to be the trustee.”

In seeking to set aside the trustee’s sale, plaintiffs alleged that during the year they were the owners of the Property, they never received any notices of assignment of trustee’s deeds or notices of deficiency,nor did they receive any notices of trustee’s sale or trustee’s deeds. They alleged, on information and belief, that “CRC may be, or have been the Trustee, on a purported Trustee’s sale of the subjectproperty, to an entity which may have transferred whatever interest may have been acquired in the trustee’s sale to Defendant Deutsch[e].” Plaintiffs alleged CRC was not the trustee and had no authority to conduct a trustee’s sale, and believed no such sale had taken place. They further alleged any promissory note supporting the 2003 deed of trust was “time barred by the statute” and the maker, if any, “was lulled into believing that no action would be taken to enforce the 2003 [deed of trust] becauseno collection actions were taken within a reasonable time and no legally required notices of deficiency were sent or recorded.”In the second cause of action, plaintiffs sought to cancel the trustee’s deed. Plaintiffs alleged the original promissory note and deed of trust no longer existed and the Bank’s deed was invalid “as it is based solely upon purported copies which have no force and effect.”The third cause of action was to quiet title to the Property. Plaintiffs alleged defendants had no original,verifiable promissory note or deed of trust and had no standing to foreclose. They further alleged all rights, title and interest asserted by defendants “were sublimated into a non-functional `security’ instrument that gives no one entity rights in individual notes and deeds of trust.” No defendant had aninterest in the Property, but they had placed a cloud upon plaintiffs’ title.In the fourth cause of action, entitled unjust enrichment, plaintiffs alleged they had paid back taxes,insured the Property, and repaired deferred maintenance. If defendants were successful in claiming an interest in the Property, plaintiffs wanted to be repaid for their expenditures.The Bank and CRC moved for summary judgment or summary adjudication on each cause of action,contending there was no triable issue of fact as to any of plaintiffs’ claims. They claimed the undispute devidence showed that the loan was in default, the Bank was the beneficiary under the deed of trust and CRC was the trustee. The default was not cured and CRC properly noticed the trustee’s sale. Notice of the sale was sent to plaintiffs and California law did not require the original promissory note to foreclose. The Bank and CRC further contended that to quiet title, plaintiffs must allege tender, or anoffer of tender, of the amount owed. They also contended there was no evidence of unjust enrichment.In support of their motion, defendants requested that the court take judicial notice of certain documents pursuant to Evidence Code sections 451, subdivision (f) and 452, subdivisions (d), (g) and (h).These documents were:(1) the Trustee’s Deed upon Sale recorded August 13, 2008, under which plaintiffs took title to theProperty;(2) a Grant Deed recorded December 13, 2002, showing the transfer of the Property to Sheryl Kotz;(3) the Deed of Trust recorded April 30, 2003, with Sheryl Kotz as trustor and Long Beach MortgageCompany as trustee and beneficiary (the 2003 deed of trust);(4) an Assignment of Deed of Trust recorded February 27, 2009, assigning all interest under the 2003deed of trust to the Bank by JPMorgan Chase Bank, as successor in interest to Washington Mutual Bank,successor in interest to Long Beach Mortgage Company;(5) a Substitution of Trustee recorded February 27, 2009, under which the Bank substituted CRC astrustee under the 2003 deed of trust;(6) a “Notice of Default and Election to Sell [the Property] Under Deed of Trust” recorded February 27,2009;(7) a Notice of Trustee’s Sale under the 2003 deed of trust recorded May 29, 2009; and(8) a Trustee’s Deed upon Sale recorded July 6, 2009, under which the Bank, as foreclosing beneficiary,was the grantee of the Property.

To support their motion, defendants also provided the declaration of Deborah Brignac. Brignac was avice-president of CRC and a custodian of records for CRC. She was one of the custodians of records forthe loan that was the subject of plaintiffs’ complaint. She declared that the CRC loan records were madein the ordinary course of business by persons with a duty to make such records and were made aboutthe time of the events reflected in the records. In April of 2003, “Shelia” [sic] Kotz 2

obtained a $340,000loan from Long Beach Mortgage Company, and the loan was secured by a deed of trust on the Property.The 2003 deed of trust provided for a power of sale if the borrower defaulted and failed to cure thedefault. It also provided that successor trustees could be appointed.Brignac further declared that as of February 26, 2009, $10,970.50 was “owed” on the note.

An assignment of the 2003 deed of trust was recorded February 27, 2009, indicating the transfer of all interest in the 2003 deed of trust to the Bank. A Substitution of Trustee was recorded the same date.According to Brignac’s declaration, the Bank’s substitution “substitutes the original trustee, Long Beach Mortgage Company for [CRC].”Brignac further declared that a Notice of Default and Election to Sell under Deed of Trust was recorded on February 27, 2009, and copies were sent to plaintiffs on March 4, 2009, as shown in the affidavits of mailing attached to her declaration. A Notice of Trustee’s Sale was recorded on May 29, 2009. Copies of this notice were mailed to plaintiffs, as shown in the attached affidavits of mailing.

The loan was not reinstated. The Property was sold at a trustee’s sale on June 25, 2009. At the time of sale, the total unpaid debt was $336,328.10. At no time before the trustee’s sale did plaintiffs tender the unpaid debt.The Bank and CRC filed a separate statement of undisputed facts setting forth the facts as stated in Brignac’s declaration.In response, plaintiffs admitted the description of the Property and that they purchased it on June 24,2008, at a foreclosure sale; they disputed all of the remaining facts. They asserted that the Brignac declaration was without foundation and contained hearsay and that all of the recorded documents contained hearsay.In their opposition to the motion for summary judgment, plaintiffs began with a diatribe against the”Foreclosure Industry,” asserting the industry operated “as if the Evidence Code, the law of contracts,assignments, deeds of trust and foreclosure are merely optional.” They contended defendants failed tomeet their burden of proof for summary judgment because their request for judicial notice and Brignac’sdeclaration were inadmissible hearsay. They further contended the notice of default and the notice of trustee’s sale failed to meet statutory requirements of California law. Finally, they asserted defendants lacked standing to foreclose because they had not produced even a copy of the promissory note.Plaintiffs moved to strike the declaration of Brignac as lacking foundation and containing hearsay. They also opposed the request for judicial notice. They argued the recorded documents were all hearsay.Citing only the Federal Rules of Evidence and federal case law grounded on the federal rules, plaintiffs argued a court cannot take judicial notice of disputed facts contained in a hearsay document. Plaintiffs disputed “virtually everything” in the recorded documents, arguing one can record anything, regardless of its accuracy or correctness.The trial court overruled plaintiffs’ hearsay objections, denied plaintiffs’ motion to strike the Brignac declaration, granted defendants’ request for judicial notice, and granted defendants’ motion for summary judgment, finding no triable issue of material fact. Judgment was entered in favor of the Bankand CRC.

DISCUSSION

I. Law of Summary Judgment and Standard of Review

A defendant “may move for summary judgment in any action or proceeding if it is contended that theaction has no merit.” (Code Civ. Proc., § 437c, subd. (a).) “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of thecause of action, even if not separately pleaded, cannot be established, or that there is a complete

defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to theplaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action ora defense thereto.”(Id.,subd. (p)(2).) “The motion for summary judgment shall be granted if all thepapers submitted show that there is no triable issue as to any material fact and that the moving party isentitled to a judgment as a matter of law.” (Id.,subd.(c).)”When the defendant moves for summary judgment, in those circumstances in which the plaintiff wouldhave the burden of proof by a preponderance of the evidence, the defendant must present evidencethat would preclude a reasonable trier of fact from finding that it was more likely than not that thematerial fact was true [citation], or the defendant must establish that an element of the claim cannot beestablished, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain,needed evidence.'” (Kahn v. EastSide Union High School Dist.(2003)31 Cal.4th 990, 1003.) A defendantmoving for summary judgment must “present evidence, and not simply point out that the plaintiff doesnot possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co.

(2001)25Cal.4th 826, 854, fn. omitted.)We review a grant of summary judgment de novo. (Bussv. Superior Court(1997)16 Cal.4th 35, 60.) “Inundertaking our independent review of the evidence submitted, we apply the same three-step analysisas the trial court. [Citation.] First, we identify the issues framed by the pleadings. Next, we determinewhether the moving party has established facts justifying judgment in its favor. Finally, if the movingparty has carried its initial burden, we decide whether the opposing party has demonstrated theexistence of a triable, material fact issue. [Citation.]”((2002)103 Cal.App.4th 1409, 431-1432 (Bono).)

II. First, Second and Third Causes of Action

While plaintiffs’ complaint is hardly a model of clarity, it seeks to undo the foreclosure sale. The firstthree causes of action to set aside the sale, cancel the trustee’s deed and quiet title  claim, amongother things, that the Bank and CRC had no authority to conduct the foreclosure sale. On this point,plaintiffs allege the Bank claims to be the owner of the Property by virtue of a trustee’s deed recorded”by an entity purporting to be the trustee.” They further allege CRC was not the trustee and had noauthority to conduct the sale; the sale did not take place or was improperly held. The first three causesof action of plaintiffs’ complaint are based on the allegations that the Bank had no interest in theProperty and CRC was not the trustee and had no authority to conduct a trustee’s sale. Thus, initialissues framed by the pleadings are whether the Bank was the beneficiary under the 2003 deed of trustand whether CRC was the trustee under that deed of trust. The fourth cause of action for unjustenrichment raises different issues and will be discussed separately in part III. of the Discussion, post.

Defendants moved for summary judgment on the basis that plaintiffs’ allegations were not supported bythe undisputed facts. They asserted CRC was the trustee pursuant to the Substitution of Trustee recorded by the Bank as beneficiary under the 2003 deed of trust.To establish that CRC was the trustee and thus had authority to conduct the trustee’s sale, defendants requested that the trial court take judicial notice of the recorded Assignment of Deed of Trust, which showed the Bank was the beneficiary. Defendants also requested that the trial court take judicial notice of the recorded Substitution of Trustee, which showed the Bank, as beneficiary, had substituted CRC as trustee.Matters that may be judicially noticed can support a motion for summary judgment. (Code Civ. Proc., §437c, subd. (b)(1).) However, plaintiffs contend the trial court erred in taking judicial notice of thedisputed facts contained within the recorded documents. We agree.”`Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.'” (Lockley v. Law Office of Cantrell , Green, Pekich, Cruz&McCort (2001)91 Cal.App.4th 875, 882.)

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid.Code, §450.) “Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. Amatter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. [Citation.]”(Fremont Indemnity Co. v.Fremont General Cor p.(2007)148 Cal.App.4th 97, 113.)”Taking judicial notice of a document is not the same as accepting the truth of its contents or acceptinga particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage(1986)184 Cal.App.3d 369,374.) While courts take judicial notice of public records, they do not take notice of the truth of mattersstated therein. (Love v. Wol f(1964)226 Cal.App.2d 378, 403.) “When judicial notice is taken of adocument, . . . the truthfulness and proper interpretation of the document are disputable.” (StorMedia,Inc. v. Superior Court(1999)20 Cal.4th 449, 457, fn. 9 (StorMedia).)This court considered the scope of judicial review of a recorded document in Poseidon Development , Inc.v. Woodland Lane Estates , LLC(2007)152 Cal.App.4th 1106(Poseidon ). “[T]he fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. [Citation.] For example, the First Substitution recites that Shanley `is thepresent holder of beneficial interest under said Deed of Trust.’ By taking judicial notice of the FirstSubstitution, the court does not take judicial notice of this fact, because it is hearsay and it cannot beconsidered not reasonably subject to dispute.” (Id.

at p. 1117.)The same situation is present here. The Substitution of Trustee recites that the Bank “is the presentbeneficiary under” the 2003 deed of trust. As in Poseidon, this fact is hearsay and disputed; the trialcourt could not take judicial notice of it. Nor does taking judicial notice of the Assignment of Deed of Trust establish that the Bank is the beneficiary under the 2003 deed of trust. The assignment recites thatJPMorgan Chase Bank, “successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR IN INTERESTTO LONG BEACH MORTGAGE COMPANY” assigns all beneficial interest under the 2003 deed of trust tothe Bank. The recitation that JPMorgan Chase Bank is the successor in interest to Long Beach MortgageCompany, through Washington Mutual, is hearsay. Defendants offered no evidence to establish thatJPMorgan Chase Bank had the beneficial interest under the 2003 deed of trust to assign to the Bank. Thetruthfulness of the contents of the Assignment of Deed of Trust remains subject to dispute (StorMedia,supra,20 Cal.4th at p. 457, fn. 9), and plaintiffs dispute the truthfulness of the contents of all of therecorded documents.Judicial notice of the recorded documents did not establish that the Bank was the beneficiary or thatCRC was the trustee under the 2003 deed of trust. Defendants failed to establish “facts justifying judgment in [their] favor” (Bono ,supra,103 Cal.App.4th at p. 1432), through their request for judicialnotice.Defendants also relied on Brignac’s declaration, which declared that the 2003 deed of trust permittedthe beneficiary to appoint successor trustees. Brignac, however, did not simply declare the identity of the beneficiary and the new trustee under the 2003 deed of trust. Instead, she declared that anAssignment of Deed of Trust and a Substitution of Trustee were recorded on February 27, 2009. Thesefacts add nothing to the judicially noticed documents; they establish only that the documents wererecorded.Brignac further declared that “[t]he Assignment of Deed of Trust indicatesthat JPMorgan Bank [sic],successor in interest to Washington Mutual Bank, successor in interest to Long Beach MortgageCompany, transfers all beneficial interest in connection with the [deed of trust] to Deutsche BankNational Trust Company as Trustee for Long Beach Mortgage Loan Trust 2003-4.” (Italics added.) Thisdeclaration is insufficient to show the Bank is the beneficiary under the 2003 deed of trust. A supportingdeclaration must be made on personal knowledgeand “show affirmatively that the affiant is competentto testify to the matters stated.” (Code Civ. Proc., § 437c, subd. (d).) Brignac’s declaration does notaffirmatively show that she can competently testify the Bank is the beneficiary under the 2003 deed of trust. At most, her declaration shows she can testify as to what the Assignment of Deed of Trust

But the factual contents of the assignment are hearsay and defendants offered no exception to the hearsay rule prior to oral argument to make these factual matters admissible.At oral argument, defendants contended that the recorded documents were actually business records and admissible under the business record exception. We note that Brignac did not provide any information in her declaration establishing that the sources of the information and the manner and time of preparation were such as to indicate trustworthiness. (Evid.Code, § 1271, subd. (d).)5

Information concerning this foundational element was conspicuously lacking.

Yet, this information was critical in light of the evidentiary gap establishing the purported assignments from Long Beach Mortgage Company to Washington Mutual Bank to JP Morgan Chase Bank. The records used to generate theinformation in the Assignment of Deed of Trust, if they exist, were undoubtedly records not prepared byCRC, but records prepared by Long Beach Mortgage Company, Washington Mutual and JP Morgan Chase. Defendants have not shown how Brignac could have provided information about the source of that information or how those documents were prepared. (See

Cooley v. Superior Court(2006)140Cal.App.4th 1039[district attorney unable to attest to attributes of subpoenaed records in hispossession relevant to their authenticity and trustworthiness]; Evid.Code, § 1561.) Moreover, the timingof those purported assignments relative to the recording of those events on the Assignment of Deed of Trust cannot be found in the Brignac declaration or anywhere else in the record.We also note that Brignac did not identify either the February 27, 2009 Assignment of Deed of Trust, oranother key document, the February 27, 2009 Substitution of Trustee, as business records in herdeclaration. Rather, she referenced both documents in her declaration by stating that “[a] recordedcopy” was attached as an exhibit. In light of the request for judicial notice, we take this statement tomean that the exhibits represented copies of records on file at the county recorder’s office.

On amotion for summary judgment, the affidavits or declarations of the moving party are strictly construedagainst the moving party. (Mann v. Cracchiolo(1985)38 Cal.3d 18, 35 (Mann).) Of course, had thedocuments reflecting the assignments and the substitution been offered as business records, therewould have been no need to request that the court take judicial notice of them. Accordingly, we rejectdefendants’ newly advanced theory.Brignac’s declaration is lacking in yet another way. It is confusing as to the effect of the Substitution of Trustee. She declares, “The Substitution by Deutsche Bank National Trust Company as Trustee for LongBeach Mortgage Loan Trust 2003-4 substitutes the original trustee, Long Beach Mortgage Company forCalifornia Reconveyance Company.” Brignac’s declaration (and defendants’ statement of undisputedfacts) can be read to state that the Bank substituted Long Beach Mortgage Company for CRC as trustee,rather than that CRC was substituted for Long Beach Mortgage Company. We must strictly construe thisstatement against the moving party. (Mann,supra,38 Cal.3d at p. 35.) Even if we were to construeBrignac’s declaration to state that the Bank substituted CRC as trustee under the 2003 deed of trust, itwould be insufficient to establish CRC is the trustee. A declaration that the Substitution of Trustee bythe Bank made CRC trustee would require admissible evidence that the Bank was the beneficiary underthe 2003 deed of trust and thus had the authority to substitute the trustee. As explained ante, defendants failed to provide admissible evidence that the Bank was the beneficiary under the 2003 deedof trust.At oral argument, defendants asserted that plaintiffs’ hearsay objections to their separate statement of facts did not comply with the California Rules of Court. (See Cal. Rules of Court, rule 3.1354(b).) Fromthis, defendants impliedly suggest those objections should be ignored by this court. Whether theobjections complied with the rules of court is of no moment at this juncture. The trial court ruled onthose objections in its order granting summary judgment, stating “Plaintiffs’ hearsay objections areoverruled.” The wording of the court’s order (drafted by defendants) suggests the ruling was made onsubstantive evidentiary grounds, not procedural grounds, and there is no evidence in the record to thecontrary.

Because defendants failed to present facts to establish that the Bank was beneficiary and CRC wastrustee under the 2003 deed of trust, and therefore had authority to conduct the foreclosure sale,triable issues of material fact remain as to the first three causes of action. The trial court erred ingranting summary judgment and it would be error to grant summary adjudication as to any of thosecauses of action.

III. Fourth Cause of Action

Defendants moved for summary judgment or, alternatively, for summary adjudication as to each causeof action. Accordingly, we consider whether summary adjudication was proper as to the fourth cause of action.The fourth cause of action is entitled “Unjust Enrichment.” Plaintiffs allege that, in the event the Bank issuccessful in asserting its claim to the Property, defendants should pay plaintiffs all monies theyexpended on the Property for back taxes, insurance and deferred maintenance. In their motion forsummary judgment or summary adjudication, defendants contend there can be no claim of unjustenrichment because the Bank had a right to protect its security interest in the Property and it is”inconceivable” CRC was unjustly enriched once plaintiffs defaulted on their obligation.”There is no cause of action for unjust enrichment. Rather, unjust enrichment is a basis for obtainingrestitution based on quasi-contract or imposition of a constructive trust. (1 Witkin, Summary of Cal. Law(10th ed. 2005) Contracts, §§ 1015, 1016, pp. 1104-1105.)” (McKell v. Washington Mutual , Inc.(2006)142 Cal.App.4th 1457, 1490.) Plaintiffs fail to plead a basis for restitution; they allege only that theyspent money on the Property and they would like the money back if they lose the Property.The fourth cause of action pleads no recognizable legal claim and thus is subject to summaryadjudication. “The procedure for resolving a summary judgment motion presupposes

that the pleadings are adequate to put in issue a cause of action or defense thereto. [Citation.] However a pleading may be defective in failing to allege an element of a cause of action or in failing to intelligibly identify a defense thereto. In such a case, the moving party need not address a missing element or, obviously, respond to assertions which are unintelligible or make out no recognizable legal claim. The summary judgment proceeding is thereby necessarily transmuted into a test of the pleadings and the summary judgment motion into a motion for judgment on the pleadings. In these circumstances it has been said that adefendant’s `motion for summary judgment necessarily includes a test of the sufficiency of the complaint and as such is in legal effect a motion for judgment on the pleadings.’ [Citation.]”(FPIDevelopment , Inc. v. Nakashima(1991)231 Cal.App.3d 367, 382.)Since plaintiffs failed to properly plead a right to restitution on the basis of unjust enrichment, the trialcourt did not err in granting summary adjudication as to the fourth cause of action.

DISPOSITION

The judgment is reversed with directions to vacate the order granting summary judgment and to enter anew order denying summary judgment, and granting defendants summary adjudication of the fourthcause of action only. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule8.278(a)(3).)We concur:RAYE, P. J.NICHOLSON, J.

Footnotes

1. The name of defendant Deutsche Bank National Trust Company was misspelled “Deutsch” by plaintiffs in the complaint and other filings. We use the correct spelling in our opinion.

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California Eviction Defense Manual

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