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California Landlord-Tenant Practice

The definitive book whether you are representing landlords or tenants, or involved in transactional or litigation practice.

The definitive book whether you are representing landlords or tenants, or involved in transactional or litigation practice.

  • Drafting leases; owner and tenant strategies
  • Short term tenancies; local laws and lease clauses
  • Medical marijuana in commercial and residental units
  • Mobilehome leases, special notices, and evictions
  • Terminating tenancies, notice forms, and eviction pleadings
  • Warranty of habitability, subleasing, and roommates
  • Tenant bankruptcies; stay relief, rent claims
  • Local rent and eviction controls; discrimination law
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The definitive book whether you are representing landlords or tenants, or involved in transactional or litigation practice.

  • Drafting leases; owner and tenant strategies
  • Short term tenancies; local laws and lease clauses
  • Medical marijuana in commercial and residental units
  • Mobilehome leases, special notices, and evictions
  • Terminating tenancies, notice forms, and eviction pleadings
  • Warranty of habitability, subleasing, and roommates
  • Tenant bankruptcies; stay relief, rent claims
  • Local rent and eviction controls; discrimination law

1

Creating the Tenancy

Patricia H. Tirey

E. Houston Touceda

  • I. NATURE OF LANDLORD-TENANT RELATIONSHIP
    • A. Created by Agreement; Terminology 1.1
    • B. Dual Character of Landlord-Tenant Agreement 1.2
    • C. Distinguished From Other Relationships
      • 1. Proprietor-Lodger 1.3
        • a. Under Common Law 1.4
        • b. Under CC §1940 1.5
        • c. Exclusions Under CC §1940 1.6
        • d. Effect on Evictions and Abandoned Personal Property 1.7
      • 2. Employer-Employee 1.8
      • 3. Seller-Purchaser 1.9
      • 4. Licenses 1.10
      • 5. Tenant Roommates 1.11
        • a. As Tenants of Owner 1.12
        • b. As Subtenants of Tenant 1.13
      • 6. Cotenant Owners 1.14
  • II. TYPES OF TENANCIES
    • A. Fixed-Term Tenancy 1.15
    • B. Periodic Tenancy 1.16
    • C. Tenancy at Will 1.17
    • D. Tenancy at Sufferance 1.18
    • E. Trespassers 1.19
  • III. DRAFTING LANDLORD-TENANT AGREEMENT
    • A. Option to Use Preprinted Forms 1.20
    • B. Written or Oral Agreement?
      • 1. Legal Requirements 1.21
      • 2. Advantages and Disadvantages
        • a. For Landlord 1.22
        • b. For Tenant 1.23
    • C. Requisites of Agreement
      • 1. Parties
        • a. Capacity to Enter Into Lease 1.24
        • b. Execution
          • (1) By Spouses 1.25
          • (2) By Joint Tenants or Tenants in Common 1.26
          • (3) By Corporations and Other Entities 1.27
          • (4) By Agents 1.28
        • c. Listing All Tenants 1.29
        • d. Required Agent and Service of Process Information; Copy of Lease; CC §1962 1.30
      • 2. Rent 1.31
      • 3. Description of Premises
        • a. Basic Parameters 1.32
        • b. Condition of the Premises
          • (1) Joint Pre-Possession Inspection 1.33
          • (2) Carbon Monoxide Detectors 1.34
          • (3) Form: Move-In/Move-Out Itemized Statement (California Apartment Association Form 16.0) 1.35
          • (4) Form: Furniture Inventory (California Apartment Association Form 16.1) 1.36
      • 4. Screening Fees, Security Deposits, Key Money 1.37
      • 5. Term 1.38
      • 6. Use of Premises 1.39
      • 7. Required Disclosures 1.40
    • D. Prohibited Provisions 1.41
    • E. Special Considerations in Jurisdictions With Rent Control Ordinances 1.42
    • F. Special Requirements for Government-Owned and Government-Subsidized Rental Housing 1.43
      • 1. Public Housing
        • a. HUD Requirements Imposed on Public Housing Authority 1.44
        • b. Regulations Governing Tenant Conduct 1.45
      • 2. HUD-Subsidized Rental Programs 1.46
      • 3. Section 8 Programs 1.47
  • IV. SELECTED CLAUSES FOR RESIDENTIAL LEASE OR RENTAL AGREEMENT
    • A. Rent
      • 1. Form: Monthly Amount; Due Date; Manner of Payment 1.48
      • 2. Form: Late Charges 1.49
      • 3. Form: Rent Check Returned for Insufficient Funds 1.50
      • 4. Form: Notice That Failure to Pay Rent on Time May Be Reported to Credit Record Agencies 1.51
    • B. Occupants
      • 1. Form: Identification; Joint Liability 1.52
      • 2. Form: Guests, Boarders, Lodgers, and Roommates 1.53
    • C. Form: Indemnification of Landlord 1.54
    • D. Form: Assignment and Subletting 1.55
    • E. Form: Utilities 1.56
    • F. Tenant Obligations and Restrictions
      • 1. Form: Tenant's Obligation to Maintain and Protect Landlord's Property 1.57
      • 2. Form: Tenant's Obligations to Refrain from Disturbance, Smoking, Unlawful Conduct, and Waste 1.58
      • 3. Form: Tenant's Obligation to Comply With All Laws and Rules and Regulations 1.59
      • 4. Form: Conditions Governing Tenant Repairs and Alterations 1.60
      • 5. Form: Pets 1.61
      • 6. Form: Waterbeds 1.62
      • 7. Form: No Automobile Repair 1.63
    • G. Form: Tenant's Death or Disability 1.64
    • H. Form: Landlord's Entry on Premises; Notice, Changing Locks 1.65
    • I. Breach of Covenant
      • 1. Form: Covenants Are Material and Reasonable 1.66
      • 2. Form: Consequences of Tenant's Breach; Service of Notice 1.67
    • J. Form: Misrepresentation in Tenant's Application 1.68
    • K. Form: Tenant's Termination for Cause Under Fixed-Term Lease 1.69
    • L. Form: Attorney Fees 1.70
    • M. Form: No Waiver 1.71
    • N. Form: Service of Notices 1.72
  • V. SAMPLE RESIDENTIAL LEASES AND RENTAL AGREEMENTS 1.73
    • A. Form: Rental Agreement (Month-to-Month) (California Apartment Association Form 2.0) 1.74
    • B. Form: Lease Agreement (California Apartment Association Form 2.1) 1.75
    • C. Form: Disclosure of Information on Lead-Based Paint and Lead-Based Paint Hazards (California Apartment Association Form LEAD1) 1.76
    • D. Form: Residential Lease-Rental Agreement and Deposit Receipt (Professional Publishing Form 105) 1.77
    • E. Form: Carbon Monoxide Agreement (California Apartment Association Form 27.1) 1.78

2

Fair Housing Considerations

James Morales

Michael Rawson

Paul E. Smith

  • I. IMPACT OF FAIR HOUSING LAWS ON LANDLORDS' CHOICE OF TENANTS AND EVICTIONS
    • A. Practitioner's Responsibility to Know Applicable Law 2.1
    • B. Overview of Applicable Law 2.2
  • II. SCREENING PROSPECTIVE TENANTS
    • A. Landlord's Objectives 2.3
    • B. Legal Constraints in Applying Screening Factors 2.4
      • 1. Selection Standards Must Not Have Disparate Impact on Protected Classes 2.5
        • a. Tenants Receiving Rental Subsidies 2.5A
        • b. Tenants Who Have Criminal Records 2.5B
        • c. Tenants Who Have Limited English Proficiency 2.5C
      • 2. Were Permissible Factors Used to Reject Applicant or Evict Tenant? 2.6
      • 3. First Amendment Considerations for Roommates 2.6A
  • III. SELECTION AND MANAGEMENT CRITERIA; REASONABLE ACCOMMODATIONS 2.7
    • A. Tenant Character and Safety Issues 2.8
    • B. Ability to Pay Rent
      • 1. Credit and Income Information 2.9
      • 2. Minimum Income Requirements 2.9A
      • 3. Source of Income Protections; Section 8 2.9B
      • 4. Income and Marital Status 2.9C
      • 5. Income and Disability 2.9D
    • C. Subjective Criteria Should Be Avoided 2.10
    • D. Special Criteria Applicable to Public and Subsidized Housing 2.11
      • 1. Some Immigrants Barred From Subsidized Housing 2.12
      • 2. Discrimination on the Basis of Sexual Orientation, Marital Status, or Gender Identity in HUD Housing Programs 2.12A
      • 3. Authority to Select Tenants 2.13
        • a. By Public Housing Authority
          • (1) Specific Selection Criteria and Preferences 2.14
          • (2) Residency Preferences 2.14A
          • (3) Checking Criminal Background of Applicants; Controlled Substances, Alcohol Abuse 2.15
          • (4) Denial of Admission Based on Status as Domestic Violence Victim Prohibited 2.15A
        • b. Private Landlord and Housing Authority: Section 8 Housing Choice Voucher Programs
          • (1) Applicant Eligibility Determined by Public Housing Authority 2.16
          • (2) Private Landlord's Discretion in Tenant Selection 2.17
        • c. Under Other Federal or State Subsidized Programs 2.18
        • d. Under State and Federal Tax Credit Programs 2.18A
    • E. Prohibited Selection Factors 2.19
    • F. Protected Categories
      • 1. Summary; Authorizing Legislation 2.20
      • 2. Protected Categories Created by Unruh Act's Arbitrary Discrimination Proscription 2.21
      • 3. Familial Status Protections 2.22
        • a. Statutory Definitions 2.23
        • b. Effect of Occupancy Standards 2.24
        • c. Senior Housing Exceptions 2.25
          • (1) Fair Housing Act (Federal) Exemptions 2.25A
          • (2) California (State) Exemptions 2.25B
          • (3) Application of State vs. Federal Exemptions 2.25C
      • 4. Protections for Persons With Disabilities
        • a. Impairments Covered by Statutory Definitions 2.26
        • b. Exception: Persons Engaging in Criminal Activity Because of Disability 2.26A
        • c. Proscribed Inquiries by Prospective Landlords 2.26B
        • d. Reasonable Accommodations and Modifications 2.27
          • (1) Reasonable Accommodations 2.27A
          • (2) Service Animals Distinguished From Companion and Support Animals 2.27B
          • (3) Accommodation Requests From Tenants Receiving Rental Assistance 2.27C
          • (4) Reasonable Modifications 2.27D
          • (5) Accessibility 2.27E
          • (6) Accommodation and Modification Request Procedures; Interactive Process 2.27F
        • e. Attorney Fees 2.27G
      • 5. Gender Protections 2.27H
        • a. Sex Harassment 2.27I
        • b. Domestic Violence Discrimination 2.27J
        • c. Gender Identity Discrimination 2.27K
      • 6. Denial of Insurance Coverage Based on Presence of Protected Classes 2.27L
    • G. Harassment Against Members of Protected Classes 2.27M
  • IV. CHARTS, POSTERS, AND FORMS: FAIR HOUSING AND ANTIDISCRIMINATION LAWS 2.28
  • V. ENFORCING FEDERAL ANTIDISCRIMINATION AND FAIR HOUSING LAWS; SCOPE AND PROCEDURES 2.29
    • A. Fair Housing Act
      • 1. Scope
        • a. Application, Protections, and Requirements 2.30
        • b. Exemptions 2.31
      • 2. Enforcement 2.32
        • a. Administrative Action
          • (1) Preparing and Filing Complaint
            • (a) Filing With HUD 2.33
            • (b) Filing With USDA 2.33A
          • (2) Form: Housing Discrimination Complaint (HUD 903.1) [Deleted] 2.34
          • (3) Response to Complaint 2.35
          • (4) Investigation and Conciliation of Dispute 2.36
          • (5) Issuance of a Charge or Dismissal 2.37
          • (6) Charge Issued: Election of Civil Action; Administrative Hearing 2.38
        • b. Civil Action Under 42 USC §3613 2.39
        • c. U.S. Attorney General "Pattern-or-Practice" Action 2.40
    • B. Civil Rights Act of 1866
      • 1. Application 2.41
        • a. No State Action Requirement 2.42
        • b. The Protected Classes 2.43
      • 2. Enforcement
        • a. Litigating Claims Under the Act 2.44
        • b. Remedies
          • (1) Damages 2.45
          • (2) Injunctive Relief 2.46
          • (3) Attorney Fees 2.47
  • VI. ENFORCING CALIFORNIA ANTIDISCRIMINATION AND FAIR HOUSING LAWS; SCOPE AND PROCEDURES 2.48
    • A. California Fair Employment and Housing Act
      • 1. Scope 2.49
      • 2. Prohibited Forms of Housing Discrimination 2.50
      • 3. Enforcement Options 2.51
        • a. Involving DFEH in Claim
          • (1) Filing Complaint With DFEH 2.52
          • (2) DFEH Investigation of Complaint 2.53
          • (3) Conciliation or Mediation 2.54
          • (4) Court Action on Complaint After DFEH Investigation 2.55
        • b. Filing Individual Civil Action; Form of Relief; Attorney Fees 2.56
    • B. Unruh Civil Rights Act 2.57
      • 1. Application to Enumerated Protections 2.57A
      • 2. Broad Application to Other Arbitrary Conduct 2.58
      • 3. Enforcement and Remedies 2.59
    • C. Equal Access Requirements for Persons With Disabilities 2.60
  • VII. PROSECUTING AND DEFENDING A RENTAL DISCRIMINATION CASE
    • A. Evidence Required to Establish Illegal Discrimination 2.61
      • 1. Overt Discrimination 2.62
      • 2. Disparate Treatment 2.63
      • 3. "Mixed Motives" Versus "A Motivating Factor" 2.64
      • 4. Disparate Impact 2.65
    • B. Use of Testers 2.66
    • C. Who Has Standing to Bring Action 2.67
    • D. Owner's Responsibility for Agent's or Third Party's Discriminatory Acts 2.68
    • E. Statute of Limitations Under Federal Law 2.69
    • F. Statute of Limitations Under State Law 2.69A

3

Rights and Duties During Tenancy

Ted Kimball

Nancy C. Lenvin

Myron Moskovitz

  • I. INTRODUCTION 3.1
  • II. LANDLORD'S LIMITED RIGHT OF ENTRY
    • A. Nature and Extent 3.2
    • B. Procedure for Entry; Notice Requirements 3.3
    • C. Form: Notice of Landlord's Intention to Enter Dwelling Unit 3.3A
    • D. Remedies 3.4
  • III. QUIET ENJOYMENT AND USE
    • A. Implied Covenant of Quiet Enjoyment
      • 1. Nature 3.5
      • 2. When Is Covenant Breached? 3.6
      • 3. Remedies 3.7
    • B. Statutes Regulating Use Of Premises
      • 1. Posting Political Signs 3.7A
      • 2. Smoking on the Premises; State, Local, and Federal Law 3.7B
      • 3. Gardening or Personal Agriculture 3.7C
      • 4. Electric Vehicle Charging Stations
        • a. Residential Property 3.7D
        • b. Commercial Property 3.7E
      • 5. Clotheslines and Drying Racks 3.7F
    • C. Notice of Pesticide Application 3.7G
  • IV. LANDLORD'S DUTY TO MAINTAIN AND REPAIR PREMISES 3.8
    • A. Express Promise to Repair 3.9
    • B. Housing Code Obligations and Enforcement
      • 1. Enforcement Process 3.10
      • 2. Housing Statutes, Regulations, and Codes
        • a. Statutory Tenantability; CC §§1941, 1941.1 3.11
        • b. Door and Window Locks; CC §§1941.3, 1941.5–1941.6 3.11A
        • c. Toxic Mold and Other Health and Safety Statutes 3.11B
        • d. Department of Housing Regulations 3.11C
        • e. Uniform Housing Code 3.11D
      • 3. Certificate of Occupancy Violations 3.11E
    • C. "Repair-and-Deduct" Remedy; CC §1942
      • 1. Statutory Basis 3.12
      • 2. Procedure 3.13
      • 3. Waiver Not Permitted 3.14
      • 4. Commercial Tenancies 3.15
    • D. Statutory Action for Damages and Abatement; CC §1942.4 3.15A
    • E. Constructive Eviction Action 3.15B
    • F. Nuisance Action 3.15C
    • G. Implied Warranty of Habitability
      • 1. Development 3.16
      • 2. Application
        • a. Single-Family Homes 3.17
        • b. Commercial Tenancies 3.18
        • c. Government-Owned Housing 3.19
        • d. Common Areas 3.20
        • e. Premises Uninhabitable at Inception of Tenancy 3.21
        • f. Premises Become Uninhabitable After Tenant Is Required to Vacate 3.22
      • 3. Waiver 3.23
      • 4. Breach of Warranty of Habitability
        • a. Actionable Defects
          • (1) Defects Covered by Housing Codes or CC §§1941.1 and 1941.3 3.24
          • (2) Defects Not Covered by Housing and Building Codes 3.25
          • (3) Defects Caused by Tenant 3.26
          • (4) Severity of Defects 3.27
          • (5) Evidence of Defects 3.28
          • (6) Notice of Defects 3.29
        • b. Reasonable Time to Repair 3.30
        • c. Sale of Premises 3.31
        • d. Remedies for Breach of Implied Warranty
          • (1) Defense to Unlawful Detainer Suit
            • (a) Summary of Procedure 3.32
            • (b) Complaint Need Not Allege Compliance With Implied Warranty 3.33
            • (c) Protective Orders 3.34
          • (2) Actions for Damages; Statutes of Limitations 3.35
            • (a) Statutory Damages; Abatement 3.36
            • (b) General Damages
              • (i) Difference in Value or Percentage Reduction 3.37
              • (ii) Discomfort and Annoyance 3.38
              • (iii) Personal Injury Damages 3.38A
            • (c) Special Damages 3.39
            • (d) Punitive Damages 3.40
            • (e) Costs and Attorney Fees 3.41
          • (3) Injunctive Relief 3.42
          • (4) Termination and Rescission 3.43
          • (5) Declaratory Relief 3.44
      • 5. Tactical Considerations 3.45
        • a. Contract or Tort Action 3.46
        • b. Gathering and Preserving Evidence 3.46A
        • c. Availability of Insurance Coverage 3.47
        • d. Monetary Versus Equitable Claims 3.48
    • H. Form: Complaint for Damages for Breach of Warranty of Habitability and Related Torts, Specific Performance, and Injunctive Relief 3.48A
    • I. Checklist: Tenant Causes of Action and Remedies for Habitability Violations and Nuisances 3.48B
  • V. ASSIGNMENT AND SUBLETTING
    • A. Transfer of Leasehold Interests 3.49
    • B. Assignment and Subletting Distinguished 3.50
    • C. Effect of Transfer 3.51
    • D. Rights and Liabilities Following Transfer
      • 1. Assignment
        • a. Assignee and Landlord 3.52
        • b. Assignor and Landlord 3.53
      • 2. Subletting
        • a. Sublessee and Landlord 3.54
        • b. Sublessor and Landlord 3.55
    • E. Restricting Transfer of Leasehold Interests
      • 1. Lease Covenants Restricting Transfer 3.56
      • 2. Waiver of Covenant 3.57
      • 3. Landlord's Withholding of Consent 3.58
      • 4. Subleasing in Jurisdictions With Rent Control 3.58A
      • 5. Interaction With CC §1951.4 Remedy 3.59
    • F. Effect of Tenant Bankruptcy on Lease Assignment 3.59A
  • VI. EXTENSION AND RENEWAL OF LEASE
    • A. Tenant's Right to Extend or Renew 3.60
    • B. Covenants to Extend or Renew
      • 1. Legal Requirements 3.61
      • 2. Exercise of Election to Renew 3.62
      • 3. Automatic Renewal; Required Language in Lease (CC §1945.5) 3.63
    • C. Form: Notice of Nonrenewal of Lease (California Apartment Association Form 45.0) 3.63A
    • D. Holding Over 3.64
  • VII. CHANGING TERMS OF TENANCY
    • A. Periodic Tenancy
      • 1. 30-day Notice of Change in Terms 3.65
      • 2. 60-Day Notice of Residential Rent Increase Over 10 Percent 3.65A
      • 3. Effect of Notice 3.65B
    • B. Fixed-Term Tenancy 3.66
    • C. Terminating Government Rent Subsidy Contracts in Rent Control Jurisdictions 3.66A
    • D. Rent Increases Under Government Subsidy Contracts 3.66B
    • E. Rent Increases Following Emergencies and Disasters 3.66C
  • VIII. LANDLORD LIABILITY FOR PERSONAL INJURY AND PROPERTY DAMAGE
    • A. Liability to Tenant
      • 1. Negligent Failure to Correct Defects 3.67
      • 2. Failure to Maintain Common Areas 3.67A
      • 3. Injuries Caused by Criminal Acts of Third Parties 3.68
        • a. Public Housing Projects 3.68A
        • b. Privately Owned Apartment Buildings 3.68B
        • c. Privately Owned Commercial Buildings 3.68C
        • d. Public Buildings 3.68D
      • 4. Exculpatory Clauses 3.69
      • 5. Strict Liability 3.70
      • 6. Liability for Sexual Harassment 3.70A
    • B. Liability to Third Parties
      • 1. Liability for Negligence Regardless of Plaintiff's Status 3.71
      • 2. Liability for Acts of Tenant 3.72
  • IX. TENANT LIABILITY FOR PROPERTY DAMAGE AND PERSONAL INJURY
    • A. Duty to Repair 3.73
    • B. Injury to Third Parties 3.74
  • X. IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 3.75

4

Counseling the Landlord

Nancy C. Lenvin

  • I. INTRODUCTION 4.1
  • II. RETAINER AGREEMENTS
    • A. Written Fee Agreement 4.2
    • B. Limited Scope Representation
      • 1. Applicable Law 4.2A
      • 2. Checklist: Landlord Fee Agreement 4.2B
    • C. Disclosure Regarding Professional Liability Insurance 4.2C
  • III. SOLICITING AND CHOOSING TENANTS
    • A. Advertising Vacant Units 4.3
    • B. Identification of Prospective Tenants 4.3A
    • C. Screening Applicants
      • 1. Purpose 4.4
      • 2. Written Rental Applications 4.5
        • a. Format of Application 4.6
        • b. Information Requested in Application 4.7
        • c. Checklist: Tenant Information 4.8
        • d. Credit Checks and Other Investigations 4.9
        • e. Form: Application to Rent (California Apartment Association Form 3.0-R) 4.10
      • 3. Screening Fees 4.11
      • 4. Verifying Application 4.12
      • 5. Responding to Inquiries 4.13
      • 6. Evaluating Application and Selecting Tenant
        • a. Antidiscrimination Requirements 4.14
        • b. Occupancy Limits 4.15
        • c. Minimum Income Standards; Verification of Income 4.15A
      • 7. Retaining Application 4.16
  • IV. MANDATORY DISCLOSURES
    • A. ENVIRONMENTAL AND OTHER HAZARDS 4.16A
      • 1. Lead 4.16B
      • 2. Methamphetamine Contamination 4.16C
      • 3. Mold 4.16D
      • 4. Pest Control Disclosure Notice 4.16E
      • 5. Bed Bug Disclosure and Notice 4.16F
    • B. Dual Agency Disclosure 4.16G
  • V. RENTAL AGREEMENT
    • A. Advantages of Written Over Oral Agreement 4.17
    • B. Use of Printed Rental Agreement Forms
      • 1. Advantages 4.18
      • 2. Disadvantages 4.19
      • 3. Leasing a Condominium 4.19A
    • C. Drafting Considerations and Strategies
      • 1. Length of Rental Term: Periodic or Fixed-Term Tenancy
        • a. Distinctions 4.20
        • b. Anticipating Tenant's Failure to Vacate at End of Term 4.21
        • c. Effect of Rent Control 4.22
      • 2. Security Deposits
        • a. Characterization 4.23
        • b. Amount of Security Deposit 4.24
        • c. Interest on Security Deposit 4.25
        • d. Limits on Residential Landlord's Use of Security Deposits 4.26
        • e. Replenishment and Increase of Deposit During Tenancy 4.27
        • f. Return of Security Deposit 4.28
          • (1) Residential Tenancies
            • (a) Notice of Right to Inspection 4.28A
            • (b) Return of Deposit 4.28B
          • (2) Commercial Tenancies; Return of Deposit 4.28C
          • (3) Drafting Tips 4.28D
        • g. Effect of Termination of Landlord's Interest in Premises 4.29
      • 3. Key Money; Commercial Tenancies 4.29A
      • 4. Rent Provisions
        • a. Manner of Receiving Rent
          • (1) Form of Payment
            • (a) Personal Check or Cash Equivalent 4.30
            • (b) "Labor-for-Rent" Arrangements 4.31
          • (2) Date of Payment 4.32
          • (3) Mode of Delivery 4.33
        • b. Issues in Establishing Rent for Vacant Units 4.34
        • c. User Fees 4.35
        • d. Rent Increases 4.36
      • 5. Federally Required Lead Disclosures and Abatement 4.37
      • 6. Restrictions on Use of Premises 4.38
      • 7. Waiver of Tenant's Rights 4.39
      • 8. Parties to Lease; Occupants; Guests 4.40
        • a. Assignment and Subletting 4.40A
        • b. Vacancy Decontrol and Roommates 4.40B
      • 9. Options to Renew 4.41
      • 10. Utility Charges and Ratio Utility Billing
        • a. Jurisdiction 4.41A
        • b. Water and Sewer Billing Methods 4.41B
        • c. Gas and Electricity Charges 4.41C
        • d. Other Charges 4.41D
        • e. Miscellaneous Regulatory Issues 4.41E
      • 11. Other Provisions
        • a. Attorney Fees 4.42
        • b. Landlord's Right of Entry 4.43
        • c. Late Fees 4.43A
        • d. Insurance 4.43B
        • e. Address for Notices 4.43C
  • VI. COPING WITH DRUG-RELATED AND FIREARM ACTIVITY ON THE PREMISES 4.44
    • A. Nuisance Law 4.44A
    • B. Medical Marijuana Law; State and Local Controls 4.44B
      • 1. Effect on Tenant and Landlord Rights 4.44C
      • 2. Effect on Leasing, Insurance, and Secured Lending 4.44D
      • 3. Ethical Issues and Risks for Attorneys 4.44E
    • C. Recreational Marijuana Law 4.44F
  • VII. PROPERTY MANAGEMENT 4.45
    • A. Resident Property Managers
      • 1. Employee or Independent Contractor? 4.46
      • 2. Compensation 4.47
      • 3. Termination and Eviction 4.48
      • 4. Landlord's Liability for Acts of Manager 4.49
    • B. Renting Illegal Units 4.49A
    • C. Insurance Issues for Owners 4.49B
    • D. Making Repairs; Code Compliance 4.50
    • E. Regulating Tenant's Use, Activities, and Special Alterations
      • 1. Tenant's Posting of Political Signs 4.50A
      • 2. Smoking on the Premises 4.50B
      • 3. Gardening or Personal Agriculture 4.50C
      • 4. Installation of Electric Vehicle Charging Stations 4.50D
      • 5. Installation of Clotheslines and Drying Racks 4.50E
      • 6. Tenant Operating Bed-and-Breakfast or Transient Occupancy Business 4.50F
      • 7. Tenant's Water Use; Submeter Billing, Monitoring, and Conservation Fixtures 4.50G
    • F. Security Deposit Issues on Termination of Tenancy 4.51
  • VIII. PRESALE AND DEVELOPMENT ISSUES 4.52

5

Counseling the Tenant

Myron Moskovitz

Sonya Bekoff Molho

  • I. COUNSELING INDIVIDUAL TENANTS
    • A. Overall Strategy
      • 1. Developing a Tenant Profile: The "Big Picture" 5.1
      • 2. Devising a Strategy 5.2
        • a. Litigation as an Option 5.3
        • b. Settlement as an Option 5.4
      • 3. Attorney and Tenant Resources 5.4A
    • B. Limited Scope Representation
      • 1. Applicable Law 5.4B
      • 2. Checklist: Tenant Fee Agreement 5.4C
    • C. Enforcing Tenant's Rights During Tenancy
      • 1. Defeating Rent Increase 5.5
        • a. Retaliation Prohibited 5.6
        • b. Discrimination Prohibited 5.7
        • c. Improper Service of Notice of Rent Increase 5.8
        • d. Effect of Breach of Warranty of Habitability on Increase 5.9
      • 2. Remedies for Uninhabitable Conditions; Preserving Evidence 5.10
        • a. Informing Building or Health Inspector of Conditions 5.11
        • b. Contacting the Landlord 5.12
        • c. "Repair-and-Deduct" Remedy 5.13
        • d. Petitioning Rent Control Board for Rent Decrease 5.14
        • e. Rent Withholding 5.15
        • f. Action for Breach of Implied Warranty of Habitability 5.16
      • 3. Redressing Illegal Landlord Entry
        • a. Possible Legal Remedies 5.17
        • b. Checklist: Permissible Reasons for Landlord's Entry Under CC §1954 5.17A
        • c. Self-help Remedy: Changing Locks 5.18
      • 4. Protection Under Anti-SLAPP Statute
        • a. Tenant's Motion 5.18A
        • b. Landlord's Motion 5.18B
        • c. Malicious Prosecution Actions 5.18C
        • d. Strategies for Defending Anti-SLAPP Motions 5.18D
      • 5. Affirmative Suit Against Landlord; Enjoining Eviction 5.18E
      • 6. Posting or Displaying Political Signs 5.18F
      • 7. Smoking on the Premises 5.18G
    • D. "Breaking" a Lease 5.19
    • E. Lockouts and Other "Self-Help" Evictions 5.20
      • 1. Recovering Possession 5.21
      • 2. Amount of Damages 5.22
      • 3. Joining Claims 5.23
    • F. Legal Eviction Procedure
      • 1. Unlawful Detainer Action Required 5.24
        • a. Required Notices 5.24A
        • b. Summary Remedy 5.24B
        • c. Unlawful Detainer Judgment 5.24C
        • d. Tenant Damages on Reversal of Judgment 5.24D
      • 2. Stipulated Judgments 5.25
      • 3. Effect on Tenant's Creditworthiness 5.25A
      • 4. Landlord Actions in Propria Persona 5.26
      • 5. Representing Occupant Not Named in Eviction Action 5.27
    • G. Roommates 5.28
      • 1. Landlord's Consent 5.29
      • 2. Nature of Relationship; Right to Evict 5.30
      • 3. Effect of Local Rent Control Ordinance 5.31
      • 4. Written Occupancy Agreement 5.32
  • II. COUNSELING TENANT ORGANIZATIONS
    • A. Attorney's Role 5.33
    • B. Right to Organize on Premises 5.33A
    • C. Strategy and Tactics 5.34
      • 1. Obtaining Information About Landlord 5.35
      • 2. Petitioning the Landlord 5.36
      • 3. Picketing and Publicity 5.37
      • 4. Rent Strikes 5.38
      • 5. Lawsuits Against Landlord 5.39
      • 6. Negotiations 5.40
      • 7. Agreement Negotiated Between Landlord and Tenant Union
        • a. Parties; Effectiveness 5.41
        • b. Form: Sample Collective Bargaining Agreement 5.42

6

Mobilehome Park Tenancies

Ronald S. Javor

Terry R. Dowdall

Robert S. Coldren

Linda J. Lester

  • I. INTRODUCTION 6.1
  • II. APPLICABILITY OF MOBILEHOME RESIDENCY LAW (MRL) 6.2
    • A. Type of Structure 6.3
      • 1. Mobilehomes 6.4
      • 2. Recreational Vehicles 6.5
      • 3. Factory-Built Housing 6.6
      • 4. Commercial Modulars 6.7
      • 5. Multifamily Manufactured Homes 6.8
    • B. Location of Mobilehome 6.9
      • 1. Installation in Park 6.10
      • 2. Installation on Individual Lot 6.11
    • C. Parties to Rental Agreement 6.12
  • III. OTHER LAWS AFFECTING MOBILEHOMES
    • A. State Legislation Specific to Mobilehomes 6.13
    • B. Landlord-Tenant Statutes 6.14
    • C. Antidiscrimination Statutes 6.15
    • D. Local Ordinances Regulating Mobilehomes 6.16
    • E. Public Rental Assistance Programs 6.17
  • IV. DECISIONAL LAW GOVERNING MOBILEHOME PARK TENANCIES
    • A. Implied Warranties 6.18
    • B. Retaliatory Eviction Protections 6.19
    • C. Adults-Only Restrictions 6.20
  • V. CREATION OF TENANCY
    • A. Types of Tenancies 6.21
    • B. Resident and Mobilehome Admissions Criteria 6.22
    • C. Lease or Rental Agreement 6.23
  • VI. MOBILEHOME PARK RENTAL AGREEMENT FOR HOMEOWNER TENANTS
    • A. Legal and Practical Considerations 6.24
      • 1. Term of Agreement; Initial Disclosures
        • a. Homeowner's Options 6.25
        • b. Reporting and Disclosure Requirements 6.26
        • c. Limits on Renewal 6.27
        • d. Nonprincipal Residences 6.28
      • 2. Rent and Rent Increases 6.29
        • a. Notice of Rent Increase 6.30
        • b. Methods of Rent Increase in Long-Term Agreements
          • (1) Objective Factors 6.31
          • (2) Pass-Throughs 6.32
        • c. Inclusion of Utilities or Taxes in Rent 6.33
        • d. Statutory Limitations on Rent, Fees, and Charges 6.34
        • e. Impact of Local Rent Control Regulations 6.35
        • f. Local Limitations on Vacancy Decontrol 6.36
      • 3. Fees, Service Charges, and Utilities 6.37
        • a. Permissible Fees
          • (1) Common Area Landscaping and Maintenance Fees 6.38
          • (2) Fees Imposed by Governmental Entities 6.39
        • b. Limitations on Fees
          • (1) Supplying Lease 6.40
          • (2) Pets 6.41
          • (3) Occupancy 6.42
          • (4) Installation, Development, and Initial Landscaping 6.43
          • (5) Assessments and Awards Against Management 6.44
          • (6) Enforcing Park Rules and Regulations 6.45
        • c. Amortization of Fees 6.46
        • d. Utilities Charges 6.47
      • 4. Security Deposits 6.48
      • 5. Park Rules
        • a. Adoption and Amendment of Rules 6.49
        • b. Limitation on Park Rules 6.50
      • 6. Park Management Responsibilities 6.51
      • 7. Fixtures and Alterations 6.52
      • 8. Uses and Changes of Use, Zoning, or Master Lease
        • a. Disclosures 6.53
        • b. Change of Use
          • (1) Definition 6.54
          • (2) Implementation 6.55
          • (3) Park Conversions 6.56
          • (4) Failure to Follow Procedures 6.57
          • (5) Antidiscrimination Laws 6.57A
        • c. Sale of Park 6.58
      • 9. Sale or Lease of Mobilehomes
        • a. Management Rights and Duties 6.59
        • b. Form: Information for Prospective Homeowners 6.60
        • c. Limitations on Right to Withhold Approval 6.61
        • d. Failure to Execute Rental Agreement 6.62
        • e. Management's Role in Sales or Listings 6.63
        • f. Seller Disclosures 6.64
        • g. Required Removal of Mobilehome After Sale 6.65
      • 10. Cotenants, Sublessees, and Subsequent Tenants 6.66
        • a. Cotenants 6.67
        • b. Sublessees 6.68
    • B. Statutory Remedies in Mobilehome Park Tenancies
      • 1. Termination of Tenancy
        • a. Scope of MRL 6.69
        • b. Permissible Grounds 6.70
          • (1) Failure to Comply With Laws 6.71
          • (2) Conduct Constituting Substantial Annoyance 6.72
          • (3) Conviction for Specified Crimes 6.73
          • (4) Failure to Comply With Park Rules and Regulations 6.74
          • (5) Nonpayment of Rent or Charges for Services or Utilities 6.75
          • (6) Condemnation of Park 6.76
          • (7) Change of Use of Park; Closure of Park 6.77
        • c. Impermissible Grounds
          • (1) Grounds Established by MRL 6.78
          • (2) Retaliation 6.79
          • (3) Expiration of Stated Term 6.80
          • (4) Lapsed or Suspended Permit to Operate 6.81
        • d. Notices of Termination 6.82
        • e. Special Concerns When Secured Lenders or Heirs Are Involved 6.83
      • 2. Eviction; Execution of Judgment; Lien Enforcement
        • a. Procedures for Eviction 6.84
        • b. Execution of Money Judgment Against Mobilehome 6.85
        • c. Prohibition on Acquiring Lien or Security Interest in Mobilehome 6.86
        • d. Warehouse Lien
          • (1) Definition 6.87
          • (2) Warehouse Lien Procedure 6.88
            • (a) Termination Notice 6.89
            • (b) Response Options to Termination Notice 6.90
          • (3) Foreclosing a Warehouse Lien 6.91
        • e. Judicial Declaration of Abandonment (CC §798.61) 6.92
      • 3. Additional Remedies
        • a. By Tenants
          • (1) Public Nuisance 6.93
          • (2) Management's Willful Violations and Illegal Business Practices 6.94
          • (3) Other Remedies 6.95
        • b. By Management 6.96
        • c. Attorney Fees and Penalties 6.97
        • d. Arbitration of Disputes 6.98
    • C. Form Disclosures Regarding Rent Control for Mobilehome Park Homeowner Tenants
      • 1. Form: Rent Control Exemption Notice 6.99
      • 2. Form: Notice of Option to Void Rental Agreement 6.100
    • D. Form Clauses for Mobilehome Park Rental Agreement: Homeowner Tenants
      • 1. Initial Information
        • a. Form: Park Name/Address and Space Number/Address 6.101
        • b. Form: Identity of Homeowner and Residents 6.102
        • c. Form: Identity of Park Owner and Management 6.103
        • d. Term
          • (1) Form: Beginning of Term 6.104
          • (2) Form: Length of Term 6.105
        • e. Form: Amount of Rent 6.106
        • f. Form: Services 6.107
        • g. Form: Facilities 6.108
        • h. Form: Chart Showing Fees for Utilities and Services 6.109
        • i. Deposit
          • (1) Form: Amount 6.110
          • (2) Form: Payment of Deposit Amounts 6.111
        • j. Form: Zoning and Land Use Disclosures 6.112
        • k. Form: Mobilehome Ownership Information 6.113
        • l. Form: Other Information 6.114
      • 2. Form: Agreement to Lease 6.115
      • 3. Form: Term of Agreement 6.116
      • 4. Rent and Rent Increases
        • a. Form: Indexed Rent Increases (Long-Term Rental Agreement Only) 6.117
        • b. Form: Due Date of Rent Payments; Notice of Increase 6.118
        • c. Form: Tender of Rent 6.119
        • d. Form: Charges for Late Payment of Rent 6.120
      • 5. Form: Fees, Service Charges, and Utilities 6.121
      • 6. Form: Security and Default Deposits 6.122
      • 7. Form: State Law and Park Rules; Procedure for Amending Park Rules 6.123
      • 8. Form: Park Management Responsibilities for Physical Facilities, Services, Utilities, and Compliance With Law 6.124
      • 9. Form: Fixtures: Ownership, Maintenance, and Liability 6.125
      • 10. Form: Right of Entry 6.126
      • 11. Form: Changes in Zoning, Use Permits, or Master Lease 6.127
      • 12. Form: Sale or Subletting of Mobilehome 6.128
      • 13. Form: General Prohibitions (Residential Use, Guests, Abandonment, Subletting, and Assignments or Encumbrances) 6.129
      • 14. Form: Termination and Eviction 6.130
      • 15. Form: Waivers 6.131
      • 16. Form: Notices 6.132
      • 17. Form: Consultation With Homeowner 6.133
      • 18. Form: Liability Indemnification 6.134
      • 19. Form: Management's Right to Make Payments 6.135
      • 20. Form: Ownership of Mobilehome 6.136
      • 21. Form: Multiple Mobilehome Ownership 6.137
      • 22. Form: Enforcement of Agreement 6.138
      • 23. Form: Attorney Fees 6.139
      • 24. Miscellaneous Provisions
        • a. Form: Time of the Essence 6.140
        • b. Form: Interpretation and Severability 6.141
        • c. Form: Entirety of Agreement 6.142
        • d. Form: Alterations or Amendments 6.143
      • 25. Acknowledgments
        • a. Form: Acknowledgment Is Voluntary; Caveat 6.144
        • b. Form: Inspection Made to Corroborate Management's Representation of Space and Facilities 6.145
        • c. Form: Receipt and Understanding of Mobilehome Residency Law 6.146
        • d. Form: Charges for Month-to-Month Agreement 6.147
        • e. Charges for Term Agreement 6.148
        • f. Form: Acceptance of Commercial Goods or Services Not Required 6.149
        • g. Form: Consent to Entry 6.150
        • h. Form: Attachments 6.151
      • 26. Form: Notice of Rights And Responsibilities 6.152
      • 27. Form: Execution 6.153
  • VII. RULES AND REGULATIONS
    • A. Importance 6.154
    • B. Checklist: Common Provisions 6.155
  • VIII. MANAGEMENT-TENANT RELATIONS
    • A. Tenant Organizations 6.156
    • B. Management Organizations 6.157

7

Practicing Under Rent and Eviction Control Laws

Nancy C. Lenvin

Myron Moskovitz

  • I. INTRODUCTION
    • A. Overview 7.1
    • B. Resources 7.2
  • II. BASIC CONCEPTS 7.3
    • A. Vacancy Control or Decontrol 7.4
    • B. Base Rent 7.5
    • C. Retroactive Application of Enactments 7.6
  • III. HISTORICAL BACKGROUND AND LEGAL CHALLENGES
    • A. Wartime Rent Controls and the "Emergency Requirement" 7.7
    • B. Rise of Peacetime Controls 7.8
    • C. Facial Challenges 7.9
      • 1. Constitutional Challenges 7.10
      • 2. Mobilehome Park Rent Control Ordinances 7.11
      • 3. Other Bases for Facial Challenges 7.12
    • D. Fair Return Issues 7.13
    • E. "As Applied" Due Process Challenges 7.14
    • F. Damage Actions Under 42 USC §1983 7.14A
    • G. Kavanau and Galland Decisions Applied 7.14B
    • H. Actions Regarding Rent Controls 7.14C
  • IV. EXEMPTIONS 7.15
    • A. Single-Family Homes, Condominiums, and Small Buildings 7.16
    • B. Owner-Occupied Dwellings 7.17
    • C. New Construction 7.18
    • D. Federally Assisted Housing 7.19
    • E. Care Facilities 7.20
    • F. Hotels 7.21
    • G. Luxury Units 7.22
    • H. Substantially Rehabilitated Units 7.23
    • I. Tenants Who Do Not Make the Unit Tenant's Principal Residence 7.23A
    • J. Other Exemptions 7.24
  • V. VACANCY DECONTROL: COSTA-HAWKINS RENTAL HOUSING ACT
    • A. Preemption of Local Vacancy Controls 7.25
    • B. Phasing Out Existing Local Vacancy Controls 7.25A
    • C. Preemption of Local Laws Affecting Collateral Rights Under Costa-Hawkins 7.25B
    • D. Subletting and Assignment: When Does a Vacancy Occur? 7.26
      • 1. Former Law on Subletting 7.27
      • 2. Subletting After the Costa-Hawkins Act 7.28
      • 3. Eviction Issues After Costa-Hawkins 7.28A
  • VI. RENT INCREASE MECHANISMS
    • A. Base Rents
      • 1. Determining Base Rent 7.29
      • 2. Changing Base Rent 7.30
      • 3. Base Rents for Newly Covered Rental Units 7.31
      • 4. Evidentiary Problems in Establishing Base Rents 7.32
    • B. Annual Base Rent Adjustments 7.33
    • C. Individual Adjustments
      • 1. Increases in Operating and Maintenance Expenses 7.34
      • 2. Utility and Capital-Improvement Pass-Throughs 7.35
      • 3. Cost of Professional Services to Prove Need for Rent Increase 7.36
      • 4. Limits on Individual Increases 7.37
      • 5. "Fair Return" Adjustments 7.38
      • 6. Tenant Does Not Occupy Unit As Principal Residence 7.38A
  • VII. TENANT PETITIONS FOR RENT DECREASES OR REFUNDS
    • A. Reductions in Services 7.39
    • B. Inadequate Maintenance 7.40
    • C. Refund of Rent Overpayments 7.40A
  • VIII. PRACTICING BEFORE RENT CONTROL BOARDS
    • A. Introduction 7.41
    • B. Powers of Rent Boards
      • 1. Rule Making 7.42
      • 2. Adjudicating Petitions 7.43
      • 3. Registration of Rental Units 7.44
      • 4. Registration of Rents 7.45
    • C. Representing Clients at Administrative Hearings 7.46
      • 1. Evidence 7.47
      • 2. Preservation of Record 7.48
      • 3. Costs of Preparing for and Attending a Hearing 7.49
      • 4. Findings and Conclusions Required 7.50
    • D. Judicial Review: Administrative Mandamus 7.51
    • E. Arbitration 7.52
  • IX. RESTRICTIONS ON EVICTIONS
    • A. Overview 7.53
    • B. Just Cause for Eviction or Termination of Housing Services 7.54
      • 1. "Good Faith" Requirements 7.55
      • 2. Protection for Subtenants 7.55A
    • C. Permissible Grounds for Just Cause Evictions
      • 1. Tenant's Breach
        • a. Failure to Pay Rent 7.56
        • b. Failure to Cure Violation of Rental Agreement 7.57
        • c. Conduct Constituting a Nuisance 7.58
        • d. Use of Premises for Illegal Purpose 7.59
        • e. Refusal to Permit Access to Landlord 7.60
        • f. Refusal to Execute New Lease 7.61
        • g. Improper Subletting; Transient Occupancy 7.62
      • 2. Renovation or Rehabilitation 7.63
      • 3. Demolition or Conversion Under Ellis Act; Relocation Assistance 7.64
        • a. Constitutionality of Ellis Act Upheld 7.64A
        • b. Basic Provisions of Ellis Act
          • (1) Allows Withdrawal of Housing Accommodations From Market 7.64B
          • (2) Authorizes Local Restrictions and Notices to Tenants on Subsequent Rental 7.64C
          • (3) Requires Reasonable Review of Permit Applications and Fair Return on Demolished and Reconstructed Units 7.64D
          • (4) Does Not Prohibit Multiple Owner Occupancy Use 7.64E
          • (5) Notice and Reporting Requirements 7.64F
        • c. Eviction Actions Under Ellis Act 7.64G
        • d. Local Requirements and Restrictions on Evictions 7.64H
      • 4. Occupancy by Owner or Owner's Relative
        • a. Typical Ordinance Provisions 7.65
        • b. Statutory Provisions; CC §1947.10 7.66
        • c. "Good Faith" Intent to Occupy 7.67
        • d. Counseling Potential Buyers Who Plan to Occupy Rented Premises 7.68
    • D. Grounds Not Set Forth in Ordinance
      • 1. Tenant Eviction Not Allowed After Foreclosure 7.69
      • 2. Termination of Manager 7.70
      • 3. Tenant Gives Notice of Termination or Agrees to Vacate But Fails to Vacate 7.71
      • 4. Death of Tenant 7.72
    • E. Notice and Pleading Requirements
      • 1. Eviction Notices 7.73
      • 2. Must Compliance With Ordinance Be Alleged in Complaint? 7.74
    • F. Burdens of Proof and Presumptions 7.75
    • G. Defenses to Evictions Provided by Local Ordinance 7.76
    • H. Required Payments to Tenants on Eviction 7.76A
  • X. CIVIL DAMAGES AND OFFSETS FOR ORDINANCE VIOLATIONS
    • A. Damages for Rent Overcharges 7.77
    • B. Damages for Unlawful Evictions 7.78
      • 1. Litigation Privilege Defense 7.78A
      • 2. Motion to Strike; CCP §425.16 7.78B
      • 3. Successful Tenant Actions 7.78C
      • 4. Calculating Damages 7.78D
    • C. Attorney Fees 7.79
    • D. Liability of New Owner 7.80

8

Terminating the Tenancy

Myron Moskovitz

  • I. METHODS OF TERMINATING TENANCY 8.1
    • A. Expiration of Term 8.2
    • B. By Actions of Landlord or Tenant 8.3
    • C. Death of Landlord or Tenant 8.4
    • D. Destruction of Premises; Governmental Regulation 8.5
    • E. Eminent Domain 8.6
    • F. Sale of Premises 8.7
    • G. Squatting 8.7A
  • II. TERMINATION BY TENANT
    • A. Abandonment
      • 1. Definition 8.8
      • 2. Establishing Abandonment
        • a. Under CC §§1951.2–1951.3 8.9
          • (1) Form: Notice of Belief of Abandonment Pursuant to CC §1951.3(d) 8.10
          • (2) Service of Notice 8.11
          • (3) Countering Notice of Abandonment 8.12
        • b. At Common Law 8.13
      • 3. Remedies
        • a. Termination of Lease (CC §1951.2) 8.14
        • b. Continuation of Lease (CC §1951.4) 8.15
        • c. Liquidated Damages; Equitable Relief; Nonexclusivity of Remedies 8.16
    • B. Surrender
      • 1. Historical Significance 8.17
      • 2. Implied Surrender 8.18
    • C. Landlord's Breach of Lease Covenant 8.19
    • D. Tenant's Termination of Periodic Tenancy (CC §§1946, 1946.1) 8.20
    • E. Death of Tenant 8.21
    • F. Relief for Servicemembers 8.22
    • G. Victim of Domestic Violence 8.23
  • III. TERMINATION BY LANDLORD: NOTICE ISSUES
    • A. Termination for No Stated Reason, for Tenant's Breach, or Because Landlord Is Going Out of Business
      • 1. Periodic Tenancies 8.24
      • 2. Pending Sale of Residential Unit 8.25
      • 3. Tenant Breaches 8.26
      • 4. Domestic Violence and Other Abuses 8.27
      • 5. Ellis Act Evictions 8.28
    • B. Common Pitfalls 8.29
    • C. Strict Compliance With Notice Provisions Required for Unlawful Detainer 8.30
    • D. Remedies When No Notice Given: Ejectment; Quiet Title 8.31
  • IV. TERMINATION FOR TENANT'S BREACH: 3-DAY NOTICE
    • A. Notice Required Before Filing Unlawful Detainer Action 8.32
    • B. Effect of Debt Collection Practices Act 8.33
    • C. Effect of Lease Provision Altering Notice Requirements 8.34
    • D. Computation of Notice Period
      • 1. Computation Rules (CCP §1161) 8.35
      • 2. Computation When Notice Served by Mail 8.36
    • E. Form and Content of Notice
      • 1. In Writing; Signature Not Required 8.37
      • 2. Description of Premises 8.38
      • 3. Description of Breach; Demand for Cure 8.39
      • 4. Unequivocal Demand for Possession 8.40
      • 5. Tenant Has 3 Days to Pay Rent or Perform Covenant 8.41
      • 6. Election of Forfeiture 8.42
      • 7. Content Required by Eviction Control Ordinances 8.43
    • F. Bases for Termination With 3 Days' Notice
      • 1. Failure to Pay Rent: Purpose and Effect of Notice 8.44
        • a. Demand for Rent
          • (1) Stated "In the Alternative" 8.45
          • (2) Amount Due: Residential Leases 8.46
          • (3) Amount Due: Commercial Leases 8.47
          • (4) To Whom and Where Rent Must Be Paid 8.48
          • (5) Compliance With CC §1962 8.49
          • (6) Limitation to Rent Due Within Year Preceding Notice 8.50
        • b. Demand for Interest and Late Charges
          • (1) Interest and Late Charges May Be Includable in Notice 8.51
          • (2) Avoiding Excessive Late Charges 8.52
        • c. Form: 3-Day Notice to Pay Rent or Quit 8.53
        • d. Timing Service of Notice 8.54
        • e. Effect of Tender of Rent
          • (1) Before Service of Notice 8.55
          • (2) During Notice Period 8.56
          • (3) After Expiration of Notice Period 8.57
      • 2. Tenant's Breach of Lease Covenant
        • a. Statutory Provision 8.58
        • b. Breaches Covered
          • (1) Breach of Express Covenant Only 8.59
          • (2) Minor Breach Not Sufficient 8.60
        • c. Waiver and Estoppel 8.61
        • d. Form of Notice
          • (1) Alternative of Performing or Vacating 8.62
          • (2) Stating the Breach 8.63
        • e. Effect of Tenant's Performance 8.64
        • f. Form: 3-Day Notice to Perform Covenant of Lease or Quit (Curable Breach) 8.65
        • g. Form: 3-Day Notice to Quit for Breach of Covenant (Noncurable Breach) 8.66
      • 3. Breaches or Acts That Constitute Unlawful Detainer Under CCP §1161(4) 8.67
        • a. Breach of Covenant Against Subletting, Assignment, or Waste
          • (1) Covenant Must Be Express; Notice Considerations 8.68
          • (2) Tenant Operating Bed-and-Breakfast or Transient Occupancy Business 8.68A
          • (3) Evidence Required to Establish Waste 8.69
        • b. Nuisance 8.70
        • c. Unlawful Purpose 8.71
      • 4. Termination of Possession After Sale or Foreclosure 8.72
    • G. Service of Notice
      • 1. Statutory Requirements 8.73
        • a. Service by Mail Alone 8.74
        • b. "Substituted" Service 8.75
        • c. "Conspicuous" Service 8.76
      • 2. Actual Receipt of Improperly Served Notice 8.77
      • 3. Service on Cotenants or Subtenants 8.78
      • 4. Service on Rent Board 8.79
      • 5. Withdrawal of Notice 8.80
  • V. TERMINATION AFTER SALE OR FORECLOSURE (CCP §§1161a, 1161b)
    • A. Property Owners and Commercial Tenants (3-Day Notice) 8.81
    • B. Residential Tenants
      • 1. Foreclosure Sale
        • a. Notice of Foreclosure Before Sale 8.82
        • b. Notice of Termination of Tenancy (90-Day Notice); Additional Rights For Fixed-Term Leases; Cover Sheet Requirements 8.83
        • c. Occupant or Tenant Claims of Right to Possession 8.83A
      • 2. Voluntary Sale 8.84
    • C. Lease Priority Issues After Foreclosure 8.85
    • D. Protecting Tenants at Foreclosure Act of 2009: Effect on Evictions After Foreclosure 8.86
    • E. Form: Notice to Renters (Following Foreclosure Against Owner's Interest) 8.87
  • VI. TERMINATION OF MONTH-TO-MONTH TENANCY: 30-DAY OR 60-DAY NOTICE
    • A. Statutory Requirements 8.88
    • B. Alteration of Notice Period; Commercial Tenancies 8.89
    • C. Format and Contents of Notice
      • 1. Description of Premises; Signature 8.90
      • 2. Residential Tenancy Notice Requirements 8.91
      • 3. Grounds for Termination 8.92
      • 4. 30 or 60 Days to Vacate; Service in Middle of Term 8.93
    • D. Serving 30-Day or 60-Day Notice
      • 1. Method of Service 8.94
      • 2. Withdrawal of Notice 8.95
      • 3. Service on Subtenants 8.96
      • 4. When Tenant Must Vacate 8.97
    • E. Notice Period Must Expire Before Filing of Complaint 8.98
    • F. Terminating a Tenancy at Will 8.99
    • G. Form: 30-Day, 60-Day, or 90-Day Termination Notice 8.100
    • H. Notice to Renters Following Foreclosure 8.101
  • VII. UNLAWFUL DETAINER ACTIONS THAT REQUIRE NO NOTICE
    • A. Tenant Gives Notice, But Remains After Notice Expires 8.102
    • B. Expiration of Fixed-Term Lease 8.103
    • C. Hotel and Motel Guests 8.104
    • D. Employees 8.105
  • VIII. TERMINATION BY LANDLORD UNDER GOVERNMENT-SPONSORED PROGRAM
    • A. Eviction Procedures Mandated by Federal Law 8.106
    • B. Attorney Resources 8.107
  • IX. LIMITATIONS ON LANDLORD'S ABILITY TO TERMINATE TENANCY
    • A. Retaliatory Eviction 8.108
      • 1. Several Sources of Law May Apply 8.109
        • a. Retaliation Statute (CC §1942.5)
          • (1) Tenant Exercising Statutory or Habitability Rights (CC §1942.5(a))
            • (a) Protected Acts 8.110
            • (b) Limitations on Protection 8.111
          • (2) Tenant Union Activity or "Rights Under Law" (CC §1942.5(c)) 8.112
          • (3) Tenant Cannot Waive Rights (CC §1942.5(d)) 8.113
          • (4) Notice and Burden of Proof (CC §1942.5(e)) 8.114
          • (5) Remedies (CC §1942.5(f)–(g)) 8.115
          • (6) Remedies Not Exclusive (CC §1942.5(h)) 8.116
        • b. Unruh Civil Rights Act (CC §51)
          • (1) Arbitrary Conduct Prohibited by Act's Discrimination Protections 8.117
          • (2) "Arbitrary" Defined 8.118
          • (3) Burden of Proof 8.119
          • (4) Remedies 8.120
        • c. California Fair Employment and Housing Act (FEHA) 8.121
        • d. Federal Statutes 8.122
        • e. Other Statutes 8.123
        • f. Common Law 8.124
        • g. Local Ordinances 8.125
        • h. Constitutional Protections 8.126
        • i. Applicability of Law to Retaliatory Eviction in Commercial Tenancies 8.127
      • 2. Proof of Retaliatory Motive
        • a. Sole or Dominant Motive 8.128
        • b. Presumptions and Burden of Proof 8.129
        • c. Evidence
          • (1) Typically Circumstantial and Inferential 8.130
          • (2) Analogy to Labor Law Cases 8.131
      • 3. Remedies for Retaliation
        • a. Defense to Unlawful Detainer Action 8.132
        • b. Injunctive and Declaratory Relief 8.133
        • c. Action for Damages 8.134
      • 4. Beyond Retaliatory Eviction: Good Cause to Evict 8.135
    • B. Local Rent and Eviction Controls 8.136
    • C. "Self-Help" Not Permitted 8.137
      • 1. Forcible Entry and Detainer 8.138
        • a. Elements of Cause of Action
          • (1) Forcible Entry
            • (a) Tenant's Possession Prerequisite 8.139
            • (b) Statutory Definitions and Judicial Applications 8.140
          • (2) Forcible Detainer 8.141
        • b. Kinds of Occupants Protected 8.142
        • c. Affirmative Defenses 8.143
        • d. Remedies 8.144
        • e. Procedure 8.145
        • f. Form: Complaint for Forcible Entry and Forcible Detainer 8.146
      • 2. Denial of Tenant's Use of, or Access to, Premises
        • a. Utility Cutoffs 8.147
        • b. Access to Premises; Removal of Personal Property 8.148
        • c. Remedies Under CC §789.3 8.149
        • d. Remedies Under Public Utilities Code and CC §1942.2 8.150
        • e. Restraining Order Against Tenant 8.151
      • 3. Suit for Tort of "Wrongful Eviction" 8.152
      • 4. Anti-Harassment Statute (CC §1940.2) 8.153
      • 5. Other Injuries to Premises; Common Law Remedies 8.154
      • 6. Criminal Prosecution 8.155
      • 7. Strategies on "Self-Help" Eviction Remedies 8.156
    • D. Affirmative Suits Against Landlord
      • 1. Tenant's Suit to Enjoin Eviction 8.157
      • 2. Tenant's Suit for Damages for Wrongful Eviction 8.157A
  • X. EFFECTS OF TERMINATION
    • A. Tenant's Personal Property
      • 1. Statutory Requirements After Unlawful Detainer, Abandonment, or Vacation by Tenant 8.158
        • a. Landlord Must Store Tenant's Property 8.159
        • b. Notice to Tenant Required 8.160
        • c. Return of Property on Payment of Storage Costs 8.161
        • d. Disposition of Unclaimed Property 8.162
        • e. Form: Notice to Tenant of Right to Reclaim Abandoned Property (CC §1984) 8.163
        • f. Form: Notice to Owner Other Than Tenant of Right to Reclaim Abandoned Property (CC §1985) 8.164
      • 2. Enforcement of Landlord's Lien (CC §§1861–1861a) 8.165
    • B. Disposition of Fixtures 8.166
      • 1. Rule: Fixtures Are Part of Real Property (CC §1013) 8.167
      • 2. Tenant's Limited Right to Remove Fixtures (CC §1013.5) 8.168
      • 3. Tenant's Right to Remove Trade Fixtures (CC §1019) 8.169
      • 4. Disposition of Encumbered Fixtures 8.170
    • C. Disposition of Tenant's Security Deposit
      • 1. Statutory Framework
        • a. Summary of Security Deposit Law 8.171
        • b. What Payments Are Covered? 8.172
        • c. Statutory Ceiling 8.173
        • d. Landlord's Duty to Maintain Deposit; Interest on Deposit 8.174
        • e. Priority of Tenant's Claim 8.175
        • f. Termination of Landlord's Interest in Unit 8.176
      • 2. After Termination of Tenancy
        • a. Tenant's Right to Request Inspection of Premises and to Cure Deficiencies 8.177
        • b. Form: Notice of Right to Request Inspection of Premises and to Reclaim Abandoned Property 8.178
        • c. Landlord's Duty to Give Itemized Statement and Return Deposit 8.179
          • (1) Items to Which Deposit May Be Applied 8.180
          • (2) When Landlord Must Deliver Itemized Statement and Deposit Refund 8.181
          • (3) Contents of Itemized Statement 8.182
          • (4) When Repairs Cannot Be Finished Within Required Time 8.183
          • (5) Exceptions to Required Documentation 8.184
          • (6) Form: Waiver of Right to Receive Documents With Security Deposit Refund 8.185
          • (7) Form: Security Deposit Disposition Agreement (California Apartment Association Form 18.3) 8.186
        • d. Remedies for Landlord's Improper Retention of Deposit 8.187
        • e. "Nonrefundable" Deposits and Waivers in Leases Prohibited 8.188
        • f. Effect on Unlawful Detainer Action 8.189
        • g. Effect on Subsequent Action Against Tenant 8.190

9

Unlawful Detainer: Preparing and Filing the Action

Andrew J. Wiegel

  • I. INTRODUCTION
    • A. Scope of Chapter 9.1
    • B. Statutory Authority 9.2
    • C. Applicability of Unlawful Detainer Remedy
      • 1. Grounds In General 9.3
      • 2. Termination of Landlord-Tenant Relationship 9.4
  • II. NATURE OF UNLAWFUL DETAINER ACTIONS
    • A. Suit for Possession 9.5
    • B. Summary Remedy 9.6
      • 1. Expedited Procedures; Trial Priority 9.7
      • 2. Issues Limited 9.8
      • 3. Application of Other Procedures 9.9
    • C. Compare: Other Actions for Possession 9.10
      • 1. Common Law Ejectment 9.11
      • 2. Quiet Title 9.12
    • D. Effect of Local Rent and Eviction Control
      • 1. Legal Background 9.13
      • 2. Recurring Issues in Evictions
        • a. Retroactivity of Ordinance 9.14
        • b. Estoppel Effect of Administrative Decision 9.15
        • c. Pleading and Proving Just Cause to Evict 9.16
          • (1) Pleading in Complaint and Answer 9.16A
          • (2) Burden of Producing Evidence 9.16B
          • (3) Burden of Proof 9.16C
        • d. Pleading and Proving Compliance With Local Ordinance 9.16D
  • III. SETTLEMENT AND STIPULATIONS
    • A. Counseling and Negotiation 9.17
    • B. CCP §998 Offers to Settle 9.17A
    • C. Participation by Parties Is Essential 9.18
    • D. Settlement Terms and Conditions
      • 1. Judgment Versus Dismissal 9.18A
      • 2. Disadvantages of Stipulated Judgment 9.18B
      • 3. Stipulated Judgment Procedure 9.18C
      • 4. Duty to Inform Court of Stay or Settlement 9.18D
    • E. Form: Stipulation for Entry of Judgment or Dismissal (Attorney-Drafted) 9.19
    • F. Form: Stipulation for Entry of Judgment (Unlawful Detainer) (Judicial Council Form UD-115) 9.19A
  • IV. REPRESENTING LANDLORDS IN EVICTIONS
    • A. Ethical Considerations for Attorney
      • 1. Rules of Professional Conduct 9.20
      • 2. Communicating With Tenant 9.21
    • B. Initial Meeting With Landlord 9.22
      • 1. Actions In Propria Persona 9.23
      • 2. Fee Agreement and Limited Scope Representation 9.23A
      • 3. Wrongful Eviction 9.24
      • 4. Information Necessary to Pursue Eviction 9.25
        • a. Defendants Other Than Known Tenant 9.26
        • b. Form: Sample Eviction Questionnaire 9.27
    • C. Role of Insurance
      • 1. Wrongful Eviction Coverage 9.28
      • 2. Tenant Claim for Punitive Damages 9.29
  • V. PREPARING THE COMPLAINT
    • A. Form of Pleading Optional 9.30
    • B. Form: Complaint—Unlawful Detainer (Judicial Council Form UD-100) 9.31
    • C. Selecting the Court
      • 1. Subject Matter Jurisdiction; Limited Versus Unlimited Civil Case 9.32
      • 2. Venue and Trial Court Location 9.33
    • D. Proper Parties
      • 1. Plaintiffs 9.34
      • 2. Defendants
        • a. Tenant and Subtenant 9.35
        • b. Occupant Unnamed in Complaint 9.35A
        • c. Lender Holding Security Interest in Lease 9.35B
    • E. Relationship of Parties 9.36
    • F. Summary of Essential Allegations 9.37
    • G. Monetary Relief
      • 1. Eviction Based on Rent Default 9.38
      • 2. Eviction Based on Other Grounds 9.39
      • 3. Malicious Holdover, Fraud, Force, or Violence 9.40
    • H. Relief Other Than Possession and Damages 9.41
    • I. Verification 9.42
    • J. Amendments 9.43
  • VI. FILING AND SERVING THE ACTION
    • A. When to File Unlawful Detainer Complaint 9.44
    • B. Service of Summons and Complaint
      • 1. Legal Requirements 9.45
      • 2. Form: Summons (Unlawful Detainer) (Judicial Council Form SUM-130) 9.46
      • 3. Methods of Service
        • a. Personal Delivery (CCP §415.10) 9.47
        • b. Substituted Service (CCP §415.20(b)) 9.48
        • c. Posting and Mailing (CCP §415.45) 9.49
        • d. Certified Mail After Response to Notice of Abandonment 9.50
      • 4. Occupants Not Named in Complaint: Prejudgment Claim of Right to Possession 9.51
        • a. Investigating for Occupants Unnamed in Complaint 9.52
        • b. Serving Unnamed Occupants 9.53
        • c. Filing Prejudgment Claim: 10-Day Limit 9.54
      • 5. Form: Prejudgment Claim of Right to Possession (Judicial Council Form CP10.5) 9.55
      • 6. Filing Proof of Service 9.55A
    • C. Writ of Immediate Possession 9.56

10

Unlawful Detainer: Responsive Pleadings

Sonya Bekoff Molho

  • I. INTRODUCTION
    • A. Shortened (5-Day) Response Time 10.1
    • B. Local Rules Preempted 10.2
    • C. Relief for Underpayment of Filing Fee 10.3
  • II. ATTORNEY ETHICS
    • A. Delaying Tactics; Bankruptcy 10.4
    • B. Group Representation 10.5
    • C. Fee Agreement and Limited Scope Representation 10.6
    • D. Paying Rent for the Tenant 10.7
  • III. COURT FEES; IN FORMA PAUPERIS PROCEDURES 10.8
  • IV. MOTION TO QUASH
    • A. Statutory Basis and Tactical Considerations 10.9
    • B. Grounds
      • 1. Defective Service of Summons 10.10
      • 2. Defective Complaint
        • a. No Cause of Action Stated in Unlawful Detainer
          • (1) Judicial Reasoning 10.11
          • (2) Reconciling Delta Imports and Borsuk 10.11A
          • (3) Compare: Demurrer 10.12
        • b. Unauthorized Relief Sought in Unlawful Detainer
          • (1) Judicial Reasoning 10.13
          • (2) Compare: Motion to Strike 10.14
    • C. Procedure
      • 1. Shortened Hearing Notice 10.15
      • 2. Supporting Documents 10.16
      • 3. Order After Hearing 10.17
      • 4. Review by Writ of Mandate 10.18
    • D. Form: Notice of Motion to Quash Service of Summons; Supporting Memorandum and Declaration 10.19
  • V. DEMURRER
    • A. Legal Basis and Grounds 10.20
    • B. Practical Considerations and Tactics 10.21
    • C. Checklist: Demurrable Defects in Complaint 10.22
    • D. Procedure
      • 1. Scheduling the Hearing 10.23
      • 2. Supporting Documents 10.24
      • 3. Order After Hearing
        • a. Demurrer Overruled 10.25
        • b. Demurrer Sustained 10.26
    • E. Form: Demurrer to Complaint; Memorandum Supporting Demurrer (Defective 3-Day Notice Case) 10.27
    • F. Frivolous Demurrers 10.28
  • VI. MOTION TO STRIKE
    • A. Legal Basis and Tactical Considerations
      • 1. Under CCP §§435–437 (Irrelevant, False, or Improper Matter) 10.29
      • 2. Under CCP §425.16 (Anti-SLAPP Motion) 10.30
    • B. Grounds 10.31
      • 1. Improper Request for Damages 10.32
      • 2. Improper Request for Back Rent 10.33
      • 3. Lack of Allegations for Statutory Damages 10.34
      • 4. No Attorney Fees in Rental Agreement 10.35
      • 5. Irrelevant, False, or Improper Matter 10.36
      • 6. Unverified Complaint 10.37
    • C. Procedure 10.38
    • D. Form: Notice of Motion to Strike; Memorandum Supporting Motion to Strike Allegations of Improper Damages 10.39
  • VII. EXTENSION OF TIME TO PLEAD
    • A. Legal Basis 10.40
    • B. Form: Application for Order Extending Time to Respond; Order 10.41
  • VIII. ANSWER TO COMPLAINT
    • A. Legal Basis 10.42
    • B. Form: Answer—Unlawful Detainer (Judicial Council Form UD-105) 10.43
    • C. Denials 10.44
    • D. Principal and Affirmative Defenses 10.45
      • 1. Title Dispute, Improper Foreclosure, or Improper Notice Following Foreclosure 10.46
      • 2. Landlord Fraud 10.47
      • 3. Breach of Covenant of Quiet Enjoyment 10.48
      • 4. Setoff for Preexisting Debt 10.49
      • 5. Equitable Defenses 10.50
      • 6. Violation of Rent Control Ordinance 10.51
      • 7. Waiver or Estoppel 10.52
      • 8. Breach of Express Promise to Repair 10.53
      • 9. Lack of Certificate of Occupancy 10.54
      • 10. Rental Agreement Not Translated Into Required Language 10.55
      • 11. Breach of Implied Warranty of Habitability 10.56
      • 12. Retaliatory Eviction 10.57
      • 13. Lack of Good Cause to Evict From Government Housing 10.58
      • 14. Discriminatory Eviction
        • a. Unruh Civil Rights Act 10.59
        • b. Other Fair Housing Acts and Protections 10.60
        • c. Dispensing or Using Medical Marijuana 10.60A
      • 15. Notice Served More Than 1 Year After Rent Due 10.61
      • 16. Fair Debt Collection Practices Act 10.62
    • E. Verification of Answer 10.63
    • F. Amendment to Answer 10.64
  • IX. AFFIRMATIVE RELIEF 10.65
    • A. Right to Cross-Complain Limited 10.66
    • B. Exception: If Tenant Has Vacated Premises 10.67
    • C. Failure to Object to Cross-Complaint 10.68
    • D. Procedure 10.69
  • X. CHECKLIST: COMMON DEFECTS IN PREPARING AND SERVING UNLAWFUL DETAINER COMPLAINT 10.70

11

Unlawful Detainer: Pretrial Proceedings

Sonya Bekoff Molho

Andrew J. Wiegel

  • I. SCOPE OF CHAPTER 11.1
  • II. LANDLORD'S DEMURRER TO ANSWER OR MOTION TO STRIKE 11.2
  • III. DISCOVERY
    • A. Tactical Considerations 11.3
    • B. Statutory Authority 11.4
    • C. Scheduling Unlawful Detainer Discovery and Discovery Motions
      • 1. Shorter Response Periods 11.5
      • 2. Discovery and Trial-Setting Conflicts 11.6
    • D. Depositions
      • 1. Legal Basis; Methods 11.7
      • 2. Procedure 11.8
      • 3. Inspecting Documents at Deposition 11.9
      • 4. Taking Deposition Before Action Filed 11.10
    • E. Written Interrogatories
      • 1. Nature, Purpose, and Use
        • a. Advantages; Disadvantages 11.11
        • b. Depositions on Written Questions Distinguished 11.12
        • c. Scope and Use Restrictions 11.13
        • d. Number Generally Limited to 35 11.14
        • e. Considerations When Non-Individual Entities Are Responding 11.15
      • 2. Form: Form Interrogatories—Unlawful Detainer (Judicial Council Form DISC-003/UD-106) 11.16
      • 3. Procedure
        • a. Time for Service and Response 11.17
        • b. Answers and Objections to Interrogatories 11.18
        • c. Protective Orders 11.19
    • F. Inspection of Documents or Property
      • 1. Demands Addressed to a Party
        • a. Making the Demand 11.20
        • b. Responding to the Demand 11.21
      • 2. Demands Addressed to a Nonparty 11.22
    • G. Requests for Admissions
      • 1. Use and Procedure
        • a. Making the Request 11.23
        • b. Responding to the Request 11.24
        • c. Consequences of Failure to Respond 11.25
        • d. Withdrawing Admission; Relief From Default 11.26
      • 2. Form: Requests for Admissions (Judicial Council Form DISC-020) 11.27
    • H. Discovery Sanctions and Protective Orders
      • 1. Punishable Conduct 11.28
      • 2. Types of Sanctions 11.29
      • 3. Protective Orders 11.30
  • IV. MOTION FOR SUMMARY JUDGMENT
    • A. Nature and Purpose
      • 1. Granted If No Triable Issue of Material Fact 11.31
      • 2. Burden of Proof
        • a. Plaintiff as Moving Party
          • (1) Requires Plaintiff to Only Establish Prima Facie Case 11.32
          • (2) Statute Ambiguous on Defendant's Burden 11.33
        • b. Defendant as Moving Party 11.34
      • 3. Oral Testimony 11.35
    • B. Hearing Procedures; Deadlines for Filing and Service
      • 1. 5-day Notice of Motion 11.36
      • 2. Filing and Serving Opposition 11.37
    • C. Supporting Documents of Moving Party 11.38
    • D. Opposing Documents; Oral Opposition 11.39
  • V. MOTION FOR JUDGMENT ON PLEADINGS 11.40
  • VI. SETTING CASE FOR TRIAL
    • A. Request for Trial Setting
      • 1. Procedure 11.41
      • 2. Form: Request/Counter-Request to Set Case for Trial—Unlawful Detainer (Judicial Council Form UD-150) 11.41A
    • B. 20-Day Mandatory Trial Setting 11.42
    • C. Notice of Trial 11.43
    • D. Extension of Trial Date 11.44
      • 1. Good Cause for Extension 11.45
      • 2. Probability That Landlord Will Prevail 11.46
      • 3. Amount of Landlord's Damages 11.47
      • 4. Potential Offsets to Damages 11.48
      • 5. Order to Deposit Damages 11.49
      • 6. Trial Date Advanced Upon Default 11.50
    • E. Effect of Tenant's Vacating Before Trial 11.51
    • F. Case Management and Settlement Conferences 11.52
  • VII. JURY TRIAL
    • A. Right to Jury Trial; Procedure 11.53
    • B. Waiver 11.54
    • C. No Right to Jury Trial on Equitable Issues 11.55
  • VIII. MOTIONS TO ESCROW RENT PENDING TRIAL
    • A. Mandatory Orders (CCP §1170.5) 11.56
    • B. Discretionary Orders; Habitability Cases
      • 1. Purposes 11.57
      • 2. Legal Basis 11.58
      • 3. Required Showing 11.59
      • 4. Amount of Rent to Be Escrowed 11.60
      • 5. Stipulation for Rent Deposit 11.61
  • IX. RELATED ACTIONS: PRELIMINARY INJUNCTIONS, CONSOLIDATION, AND COORDINATION
    • A. Nature of Related Actions 11.62
    • B. Injunctive Relief
      • 1. Legal Basis; Grounds 11.63
      • 2. The Newby Exception: Adequate Remedy at Law 11.63A
      • 3. Overcoming Newby Limitations 11.63B
      • 4. Procedure; Bond Required 11.64
    • C. Consolidation
      • 1. Multiple Actions Pending in Same Court 11.65
      • 2. Multiple Actions Pending in Different Courts 11.66
      • 3. Effect of Consolidation Order 11.67
      • 4. Consolidation for Trial of Related Issues Only 11.68
    • D. Coordination by Judicial Council 11.69

12

Unlawful Detainer: Trial

Sonya Bekoff Molho

Andrew J. Wiegel

  • I. SCOPE OF CHAPTER 12.1
  • II. DISQUALIFYING THE JUDGE
    • A. Challenge for Cause 12.2
      • 1. Procedures for Challenging for Cause 12.3
      • 2. Standard for Disqualification in Contested Challenge for Cause 12.4
    • B. Peremptory Challenge 12.5
      • 1. Procedures for a Peremptory Challenge 12.6
      • 2. Deadline for Making Peremptory Challenge
        • a. Before Trial Commences; After Appeal on Remand 12.7
        • b. Before Other Proceedings 12.7A
        • c. Effect of Intervening Decisions 12.7B
      • 3. Effect of Exercise of Peremptory Challenge 12.8
    • C. Appealing the Challenge Motion 12.8A
    • D. Tactical Considerations in Deciding Whether to Challenge Judge 12.9
  • III. COMPELLING PARTY AND NONPARTY ATTENDANCE AT TRIAL
    • A. Nonparty Witness
      • 1. Subpoena Required 12.10
      • 2. Service of Subpoena 12.11
    • B. Parties
      • 1. Notice to Appear or Subpoena 12.12
      • 2. Service of Notice to Appear 12.13
    • C. Statutory Witness and Mileage Fees 12.14
  • IV. COMPELLING PRODUCTION OF DOCUMENTS AND OTHER MATERIALS
    • A. Nonparty Witnesses: Subpoena Duces Tecum 12.15
    • B. Parties: Notice to Produce or Subpoena Duces Tecum 12.16
    • C. Production of Original Document; Stipulations Regarding Duplicates or Photocopies 12.17
  • V. PENALTIES FOR DISOBEYING SUBPOENA 12.18
  • VI. PLAINTIFF'S CASE
    • A. Elements of Unlawful Detainer 12.19
      • 1. Proving Service of Notice; Statutory Presumptions Regarding Return of Service 12.20
      • 2. Proving Case When Tenant Fails to Appear at Trial 12.21
    • B. Elements to Be Proved for Unlawful Detainer Based on Nonpayment of Rent
      • 1. Proof of Rent Due
        • a. Landlord Has Burden of Proof 12.22
        • b. Use of Books and Records to Prove Amount or Receipt of Rent 12.23
          • (1) To Refresh Witness's Memory 12.24
          • (2) Introduction as a Past Recollection Recorded 12.25
          • (3) Admissible Under Business Records Exception to Hearsay Rule 12.26
      • 2. Proof of Damages
        • a. Damages Limited to Period From Termination of Tenancy Through Judgment 12.27
        • b. Damages Based on Reasonable Rental Value 12.28
          • (1) Determination of Reasonable Rental Value; Opinions of Landlord or Expert 12.29
          • (2) Damage Award in Absence of Request for Such Relief 12.30
        • c. Special Damages 12.31
          • (1) Pleading Statutory Damages
            • (a) Proof of Statutory Damages for Defendant's Malice 12.32
            • (b) Establishing Malice 12.33
          • (2) Difficulty in Obtaining Award of Statutory Damages 12.34
  • VII. PRINCIPAL DEFENSES
    • A. That Elements of Unlawful Detainer Not Proved 12.35
    • B. Breach of Warranty of Habitability in Nonpayment of Rent Cases
      • 1. General Elements of Defense 12.36
      • 2. Adjudication of Reasonable Rent 12.37
    • C. Retaliatory Eviction for Tenant's Exercise of Legal Rights 12.38
  • VIII. AMENDMENTS TO CONFORM TO PROOF
    • A. Liberality in Granting Amendments 12.39
    • B. Scope of Amendment Under CCP §1173; Supplemental Versus Amended Complaint 12.40
  • IX. JURY INSTRUCTIONS
    • A. General Sources of Jury Instructions 12.41
    • B. Specific Instructions for Unlawful Detainer Cases 12.42
    • C. Procedure for Filing Proposed Instructions; Filing Deadlines 12.43
    • D. Format 12.44
    • E. Sample Jury Instructions 12.45
      • 1. Form: Sample Instruction on Burden of Proof, Preponderance of Evidence 12.46
      • 2. Form: Sample Instruction on Facts Plaintiff Must Establish 12.47
      • 3. Form: Sample Instruction on Service of Notices; Computation of Time 12.48
      • 4. Rent and Damages
        • a. Form: Sample Instruction on Calculation of Rent and Damages 12.49
        • b. Form: Sample Instruction on Definition of "Fair Rental Value" for Assessing Damages 12.50
        • c. Form: Sample Instruction on Witnesses' Opinions Concerning Fair Rental Value 12.51
        • d. Form: Sample Instruction on Statutory Damages; Definition of Malice 12.52
      • 5. Habitability of Premises 12.53
        • a. Sample Instruction on Definition of "Habitability"
          • (1) Form: Landlord's Instruction 12.54
          • (2) Form: Tenant's Instruction 12.54A
        • b. Form: Sample Instruction on Breach of Warranty—Factors to Consider; Notice of Defects 12.55
        • c. Drafting Instructions on Computing "Reasonable Rent" Owed When Warranty Breached 12.56
          • (1) Form: Sample Instruction on Calculation of Reasonable Rent—Percentage-Reduction-in-Use Method 12.57
          • (2) Form: Sample Instruction on Calculation of Reasonable Rent—Difference-in-Value Method 12.58
          • (3) Form: Sample Instruction on Calculation of Reasonable Rent—Factoring in Tenant's Discomfort and Annoyance 12.59
      • 6. Retaliatory Eviction 12.60
        • a. Form: Sample Instruction on Elements of Retaliatory Eviction (Month-to-Month Tenancy) 12.61
        • b. Burden of Proof
          • (1) Form: Sample Instruction When Tenant Bears Entire Burden of Proof on Defense 12.62
          • (2) Form: Sample Instruction When Landlord Bears Burden of Disproving Intent 12.63
      • 7. Miscellaneous Defenses
        • a. Form: Sample Instruction on Breach of Implied Covenant of Quiet Enjoyment 12.63A
        • b. Form: Sample Instruction on Waiver 12.63B
        • c. Form: Sample Instruction on Estoppel 12.63C
        • d. Form: Sample Instruction on Landlord's Refusal of Rent 12.63D
  • X. COURT TRIAL: STATEMENT OF DECISION
    • A. Party Must Request Statement of Decision 12.64
    • B. Deadlines for Request; Determining Whether Statement Must Be Written or Oral 12.65
    • C. Counsel's Role Regarding Ambiguous or Inadequate Statement of Decision 12.66
  • XI. JURY TRIAL
    • A. Jury Verdict; General and Special Verdicts 12.67
    • B. Judgment Based on Jury Verdict 12.68
  • XII. DEFAULTS AT TRIAL 12.69

13

Unlawful Detainer: Judgment and Posttrial Proceedings

Sonya Bekoff Molho

  • I. SCOPE OF CHAPTER 13.1
  • II. DEFAULT
    • A. When Defendant Is in Default 13.2
    • B. Procedure for Obtaining Default Judgment
      • 1. Entry of Default 13.3
      • 2. Immediate Judgment for Possession 13.4
      • 3. Judgment for Monetary Relief 13.5
    • C. Form: Request for Entry of Default (Judicial Council Form CIV-100) 13.6
    • D. Relief From Default
      • 1. Grounds Under CCP §473(b)
        • a. Fault of Defendant Party; Discretionary Relief 13.7
        • b. Fault of Attorney; Mandatory Relief 13.8
        • c. Default Obtained by Fraud 13.9
      • 2. Procedure Under CCP §473(b)
        • a. Noticed Motion 13.10
        • b. Time Limits for Motion
          • (1) Usually 6 Months 13.11
          • (2) 90-Day Exception 13.12
          • (3) Fraud and Other Exceptions 13.13
      • 3. Conditions for Relief Under CCP §473(b) 13.14
      • 4. Other Grounds and Procedures for Relief From Default
        • a. Lack of Actual Notice of Suit 13.15
        • b. Limited Civil Case Omnibus Rule 13.16
      • 5. Effect of Default Set-Aside on Sealing of Court Records 13.16A
  • III. JUDGMENT
    • A. When Plaintiff Prevails
      • 1. Forfeiture of Possession and Leasehold Rights 13.17
      • 2. Back Rent 13.18
      • 3. Damages Caused by Unlawful Detainer 13.19
      • 4. Prejudgment Interest 13.20
      • 5. Costs
        • a. Awarded to Prevailing Party 13.21
        • b. Allowable Costs and Expenses 13.22
        • c. Procedure for Claiming Costs 13.23
        • d. Limitations on Costs 13.24
      • 6. Attorney Fees
        • a. Basis for Recovery 13.25
        • b. Determining Who Is Prevailing Party
          • (1) Party Recovering "Greater Relief" 13.26
          • (2) Effect of Dismissal 13.27
        • c. Limits on Recovery by Prevailing Party
          • (1) Attorney Representing Self 13.28
          • (2) In-House or Pro Bono Representation 13.28A
          • (3) Effect of Tenant Tendering Full Amount of Rent Owing 13.28B
          • (4) If Attorney Files Action in Wrong Court 13.28C
          • (5) Actions Not Arising From Lease 13.28D
        • d. Determining Amount of Fees 13.29
        • e. Fees for Services Before Complaint Filed 13.30
        • f. Award of Fees Against Successors in Interest 13.31
        • g. Attorney Fees on Appeal 13.32
        • h. Procedure for Claiming Fees 13.33
          • (1) Basis of Award Governs Procedure
            • (a) Contractual Attorney Fees 13.33A
            • (b) Statutory Attorney Fees 13.33B
          • (2) Time Limits for Claiming Attorney Fees 13.33C
      • 7. Landlord Posttrial Inspections 13.33D
      • 8. Form: Judgment for Plaintiff (Attorney-Drafted) 13.34
    • B. When Defendant Prevails
      • 1. Tenant's Retention of Possession; Court Records Sealed 13.35
      • 2. Warranty of Habitability Damages 13.36
        • a. Assessing Only Against Delinquent Rent 13.37
        • b. Assessing Against All Rent Due After Notice 13.38
      • 3. Res Judicata Effect 13.39
      • 4. Attorney Fees and Costs
        • a. Under Contract 13.40
        • b. Under Anti-SLAPP Statute 13.40A
        • c. Under Other Statutes or Ordinances 13.40B
      • 5. Form: Judgment—Unlawful Detainer (Judicial Council Form UD-110) 13.40C
      • 6. Form: Judgment—Unlawful Detainer Attachment (Judicial Council Form UD-110S) 13.40D
      • 7. Form: Order for Judgment for Defendant—Warranty of Habitability (Attorney-Drafted) 13.41
    • C. Successive Actions Not Barred by Appeal 13.42
  • IV. POSTTRIAL PROCEEDINGS
    • A. Posttrial Motions Generally 13.43
      • 1. Motion for New Trial 13.44
      • 2. Judgment Notwithstanding Verdict 13.45
      • 3. Motion to Vacate and Enter Different Judgment 13.46
      • 4. Motion to Correct Clerical Error 13.47
    • B. Stay of Execution 13.48
      • 1. 5-Day Stay; Restoring Possession on Unexpired Lease (CCP §1174(c)) 13.49
        • a. Mandatory Stay 13.50
        • b. Discretionary Stay 13.51
      • 2. Court's Inherent Power (CCP §918)
        • a. Grounds 13.52
        • b. Length and Conditions of Stay 13.53
      • 3. Form: Ex Parte Application for Stay of Execution 13.54
      • 4. Form: Tenant's Declaration of Hardship 13.55
    • C. Relief From Forfeiture (CCP §1179)
      • 1. Statutory Requirements 13.56
      • 2. Form: Application for Relief From Forfeiture 13.57
    • D. Appeal
      • 1. Governing Statutes and Rules of Court 13.58
      • 2. Procedure and Time Limits 13.59
      • 3. Stay Pending Appeal (CCP §1176) 13.60
      • 4. Restitution of Possession; Effect of Tenant's Vacating Pending Appeal 13.61
      • 5. Form: Notice of Motion for Stay of Execution Pending Appeal 13.62
    • E. Extraordinary Writs 13.63
  • V. ENFORCING THE JUDGMENT
    • A. For Possession
      • 1. Writ of Possession; Procedure 13.64
        • a. Contents of Writ 13.65
        • b. Service of Writ 13.66
        • c. Eviction Under the Writ 13.67
        • d. Effect of Bankruptcy; CCP §715.050 13.68
      • 2. Form: Writ of Execution (Judicial Council Form EJ-130) 13.69
      • 3. Postjudgment Claim of Right to Possession
        • a. Notice Procedure and Limitations on Use 13.70
        • b. Filing of Postjudgment Claim 13.71
        • c. Hearing on Postjudgment Claim 13.72
      • 4. Form: Claim of Right to Possession and Notice of Hearing (Judicial Council Form CP10) 13.73
      • 5. Eviction By Writ Not Subject to Collateral Attack 13.73A
    • B. For Rent and Damages 13.74
    • C. Credit Reporting Issues 13.75
    • D. Fair Debt Collection Practices Act 13.76

14

Tenant Bankruptcies: Relief From Stay, Rent Claims, and Lease Issues

Nancy J. Newman

  • I. INTRODUCTION
    • A. Chapter Scope 14.1
      • 1. Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) 14.1A
      • 2. BAPCPA Effective Dates 14.1B
    • B. Bankruptcy Notices and Forms 14.2
    • C. When Tenant Files Bankruptcy 14.3
  • II. AUTOMATIC STAY AFFECTS LEASE RIGHTS
    • A. Stay Arises on Filing of Bankruptcy Petition 14.4
      • 1. Repeated Bankruptcy Filings 14.4A
      • 2. Notice of Stay of State Court Proceedings 14.5
      • 3. Violation of Automatic Stay Carries Serious Consequences 14.6
      • 4. Automatic Stay May Not Be Waived in Advance 14.7
    • B. Scope of Automatic Stay Is Broad
      • 1. Activity Subject to Stay
        • a. All Litigation, Administrative Procedures, and Informal Actions Against Debtor 14.8
        • b. Acts of Landlord 14.9
        • c. Acts of State Court 14.10
      • 2. Property Protected by Stay
        • a. Lease Rights 14.11
        • b. Security Deposits 14.12
      • 3. Persons Shielded by Stay 14.13
    • C. Exceptions to Automatic Stay
      • 1. Expired Commercial Leases 14.14
      • 2. Declaratory Relief and Dischargeability Actions Not Subject to Stay 14.15
      • 3. Possessory Rights After Termination of Lease or Entry of Judgment 14.16
      • 4. Actions Against Chapter 13 Debtors on Postpetition Obligations After Plan Confirmation 14.16A
      • 5. Eviction Action Against Residential Tenant for Endangerment of Property or Illegal Use of Controlled Substance 14.16B
  • III. AVOIDING EFFECT OF AUTOMATIC STAY
    • A. When Order for Relief From Stay Is Required 14.17
    • B. Motion for Relief From Stay
      • 1. Grounds for Relief From Stay 14.18
        • a. Property Interests Defined by State Law 14.19
        • b. State Judgment Given Collateral Estoppel Effect 14.20
        • c. Eviction Following Foreclosure 14.21
      • 2. Procedure for Motion for Relief From Stay 14.22
        • a. Format and Supporting Documents 14.23
        • b. Filing Motion for Relief From Stay 14.24
        • c. Serving Motion for Relief From Stay 14.25
        • d. Scheduling and Attending the Hearing 14.26
      • 3. Defending Stay Relief Motion
        • a. Bankruptcy Discharge of Delinquent Rent in Public or Subsidized Housing 14.27
        • b. Other Defenses 14.28
        • c. Responsive Pleadings 14.28A
      • 4. Relief Granted on Conditions 14.29
    • C. Stipulation for Relief From Stay 14.30
    • D. Application for Surrender of Premises 14.31
    • E. Motion to Dismiss Bankruptcy 14.32
  • IV. RESIDENTIAL LEASE ASSUMPTION OR REJECTION
    • A. Purpose 14.33
    • B. 60-Day Limit for Assumption or Rejection 14.34
    • C. Effect of Lease Assumption
      • 1. Rights of Assuming Trustee or Debtor 14.35
      • 2. Obligations of Assuming Trustee or Debtor
        • a. Curing Existing Defaults 14.36
        • b. Prepetition Rent Workouts 14.37
    • D. Effect of Rejection
      • 1. Rejection Implies Voluntary Termination 14.38
      • 2. Postpetition Rent Must Be Paid 14.39
      • 3. Landlord Claim Issues 14.40
    • E. Exceptions: Expired or Terminated Leases 14.41
    • F. Government Housing Cases 14.42
  • V. NONRESIDENTIAL LEASE ASSUMPTION OR REJECTION
    • A. Overview 14.43
    • B. Time Limits
      • 1. Decision or Extension Required in 120 Days 14.44
      • 2. Debtor Must Remain Current on Postpetition Rent; Proration Versus Payment Date Approach 14.45
      • 3. Performance of Nonmonetary Obligations 14.45A
      • 4. Priority Claim for Postpetition Rent 14.46
      • 5. Extensions of Time and Grounds for Objection
        • a. Extension for Cause 14.47
        • b. Prejudice to Landlord; Stipulations to Extend 14.48
    • C. Assumption and Assignment Procedures
      • 1. Motion Required 14.49
      • 2. Grounds for Motion or Objection 14.50
      • 3. Recovering Attorney Fees to Enforce Lease 14.51
      • 4. Effect of Assumption and Assignment 14.52
    • D. Rejection of Lease
      • 1. Automatic Rejection or Noticed Motion 14.53
      • 2. Requires Relinquishment of Possession 14.54
      • 3. Effect on Rights Held by Nondebtor Parties 14.54A
      • 4. Landlord's Claim for Rejection Damages; Unsecured Claim 14.55
        • a. Proof of Claim Required 14.55A
        • b. Claim Amount Capped 14.55B
          • (1) Charges Equivalent to "Rent" 14.55C
          • (2) Damages Arising From Lease Termination 14.55D
          • (3) Damages Arising From Other Causes 14.55E
          • (4) Escalated Rental Damages 14.55F
        • c. Security Deposit Deduction From Capped Claim 14.55G
  • VI. SANCTIONS AND ETHICAL CONSIDERATIONS 14.56
  • VII. BANKRUPTCY FORMS
    • A. Form: Notice of Stay of Proceedings (Judicial Council Form CM-180; Mandatory) 14.57
    • B. Form: Request for Special Notice and Proof of Service 14.58
    • C. Landlord's Claim Forms
      • 1. Form: Proof of Claim (Official Bankruptcy Form 410) 14.59
      • 2. Form: Landlord's Request for Payment of Postpetition Administrative Rent; Sample Letter to Debtor's Counsel 14.60
      • 3. Form: Motion for Allowance and Payment of Administrative Rent Claim; Supporting Memorandum; Supporting Declarations 14.61
    • D. Sample Landlord Objections
      • 1. Form: Objection of Landlord to Debtor's Motion to Extend Date to Assume or Reject Nonresidential Lease 14.62
      • 2. Form: Objection to Debtors' Motion on Proposed Going Out of Business Sale 14.62A
      • 3. Form: Objection to Proposed Expedited Procedures for Assumption and Rejection of Leases 14.62B
    • E. Motion for Relief From Automatic Stay
      • 1. Form: Motion to Terminate or Modify Stay; Supporting Memorandum; Supporting Declaration 14.63
      • 2. Form: Order Granting Motion to Terminate or Modify Automatic Stay 14.64
      • 3. Form: Motion for Relief From the Automatic Stay Under 11 USC §362 (Central District Form F 4001–1.RFS.UD.MOTION; Unlawful Detainer; Mandatory) 14.65
      • 4. Form: Order Granting Motion for Relief From Stay Under 11 USC §362 (Central District Form F 4001–1.RFS.UD.ORDER; Unlawful Detainer; Mandatory) 14.66
      • 5. Form: Order Denying Motion for Relief From the Automatic Stay Under 11 USC §362 (Central District Form F 4001–1.RFS.DENY.ORDER; Mandatory) 14.66A
    • F. Form: Stipulation and Order for Relief From Automatic Stay 14.67
    • G. Form: Notice of Termination or Modification of Stay (Judicial Council Form CM-181; Mandatory) 14.67A
    • H. Application for Order to Vacate Premises
      • 1. Form: Ex Parte Application 14.68
      • 2. Form: Order to Vacate Real Property 14.69
      • 3. Form: Memorandum in Support of Application for Order to Surrender Property 14.70
    • I. BAPCPA Forms; Residential Evictions
      • 1. Form: Debtor's Certification That Circumstances Exist Which Would Allow Cure of Monetary Default 14.70A
      • 2. Additional Central District Forms 14.71

CALIFORNIA LANDLORD-TENANT PRACTICE

(2d Edition)

April 2017

TABLE OF CONTENTS

 

File Name

Book Section

Title

CH01

Chapter 1

Creating the Tenancy

01-048

§1.48

Monthly Amount; Due Date; Manner of Payment

01-049

§1.49

Late Charges

01-050

§1.50

Rent Check Returned for Insufficient Funds

01-051

§1.51

Notice That Failure to Pay Rent on Time May Be Reported to Credit Record Agencies

01-052

§1.52

Identification; Joint Liability

01-053

§1.53

Guests, Boarders, Lodgers, and Roommates

01-054

§1.54

Indemnification of Landlord

01-055

§1.55

Assignment and Subletting

01-056

§1.56

Utilities

01-057

§1.57

Tenant’s Obligation to Maintain and Protect Landlord’s Property

01-058

§1.58

Tenant’s Obligations to Refrain from Disturbance, Smoking, Unlawful Conduct, and Waste

01-059

§1.59

Tenant’s Obligation to Comply With All Laws and Rules and Regulations

01-060

§1.60

Conditions Governing Tenant Repairs and Alterations

01-061

§1.61

Pets

01-062

§1.62

Waterbeds

01-063

§1.63

No Automobile Repair

01-064

§1.64

Tenant’s Death or Disability

01-065

§1.65

Landlord’s Entry on Premises; Notice, Changing Locks

01-066

§1.66

Covenants Are Material and Reasonable

01-067

§1.67

Consequences of Tenant’s Breach; Service of Notice

01-068

§1.68

Misrepresentation in Tenant’s Application

01-069

§1.69

Tenant’s Termination for Cause Under Fixed-Term Lease

01-070

§1.70

Attorney Fees

01-071

§1.71

No Waiver

01-072

§1.72

Service of Notices

CH03

Chapter 3

Rights and Duties During Tenancy

03-003A

§3.3A

Notice of Landlord’s Intention to Enter Dwelling Unit

03-048A

§3.48A

Complaint for Damages for Breach of Warranty of Habitability and Related Torts, Specific Performance, and Injunctive Relief

03-048B

§3.48B

Checklist: Tenant Causes of Action and Remedies for Habitability Violations and Nuisances

CH04

Chapter 4

Counseling the Landlord

04-002B

§4.2B

Checklist: Landlord Fee Agreement

04-008

§4.8

Checklist: Tenant Information

CH05

Chapter 5

Counseling the Tenant

05-004C

§§5.4C–5.17A

Checklist: Tenant Fee Agreement

 

§5.17A

Checklist: Permissible Reasons for Landlord’s Entry Under CC §1954

05-042

§5.42

Sample Collective Bargaining Agreement

CH06

Chapter 6

Mobilehome Park Tenancies

06-060

§6.60

Information for Prospective Homeowners

06-099

§§6.99–6.153

Rent Control Exemption Notice

 

§6.100

Notice of Option to Void Rental Agreement

 

§6.101

Park Name/Address and Space Number/Address

 

§6.102

Identity of Homeowner and Residents

 

§6.103

Identity of Park Owner and Management

 

§6.104

Beginning of Term

 

§6.105

Length of Term

 

§6.106

Amount of Rent

 

§6.107

Services

 

§6.108

Facilities

 

§6.109

Chart Showing Fees for Utilities and Services

 

§6.110

Amount

 

§6.111

Payment of Deposit Amounts

 

§6.112

Zoning and Land Use Disclosures

 

§6.113

Mobilehome Ownership Information

 

§6.114

Other Information

 

§6.115

Agreement to Lease

 

§6.116

Term of Agreement

 

§6.117

Indexed Rent Increases (Long-Term Rental Agreement Only)

 

§6.118

Due Date of Rent Payments; Notice of Increase

 

§6.119

Tender of Rent

 

§6.120

Charges for Late Payment of Rent

 

§6.121

Fees, Service Charges, and Utilities

 

§6.122

Security and Default Deposits

 

§6.123

State Law and Park Rules; Procedure for Amending Park
Rules

 

§6.124

Park Management Responsibilities for Physical Facilities, Services, Utilities, and Compliance With Law

 

§6.125

Fixtures: Ownership, Maintenance, and Liability

 

§6.126

Right of Entry

 

§6.127

Changes in Zoning, Use Permits, or Master Lease

 

§6.128

Sale or Subletting of Mobilehome

 

§6.129

General Prohibitions (Residential Use, Guests, Abandonment, Subletting, and Assignments or Encumbrances)

 

§6.130

Termination and Eviction

 

§6.131

Waivers

 

§6.132

Notices

 

§6.133

Consultation With Homeowner

 

§6.134

Liability Indemnification

 

§6.135

Management’s Right to Make Payments

 

§6.136

Ownership of Mobilehome

 

§6.137

Multiple Mobilehome Ownership

 

§6.138

Enforcement of Agreement

 

§6.139

Attorney Fees

 

§6.140

Time of the Essence

 

§6.141

Interpretation and Severability

 

§6.142

Entirety of Agreement

 

§6.143

Alterations or Amendments

 

§6.144

Acknowledgment Is Voluntary; Caveat

 

§6.145

Inspection Made to Corroborate Management’s Representation of Space and Facilities

 

§6.146

Receipt and Understanding of Mobilehome Residency Law

 

§6.147

Charges for Month-to-Month Agreement

 

§6.148

Charges for Term Agreement

 

§6.149

Acceptance of Commercial Goods or Services Not Required

 

§6.150

Consent to Entry

 

§6.151

Attachments

 

§6.152

Notice of Rights And Responsibilities

 

§6.153

Execution

06-155

§6.155

Checklist: Common Provisions

CH08

Chapter 8

Terminating the Tenancy

08-010

§8.10

Notice of Belief of Abandonment Pursuant to CC §1951.3(d)

08-053

§8.53

3-Day Notice to Pay Rent or Quit

08-065

§8.65

3-Day Notice to Perform Covenant of Lease or Quit (Curable Breach)

08-066

§8.66

3-Day Notice to Quit for Breach of Covenant (Noncurable Breach)

08-087

§8.87

Notice to Renters (Following Foreclosure Against Owner’s Interest)

08-100

§8.100

30-Day, 60-Day, or 90-Day Termination Notice

08-146

§8.146

Complaint for Forcible Entry and Forcible Detainer

08-163

§8.163

Notice to Tenant of Right to Reclaim Abandoned Property (CC §1984)

08-164

§8.164

Notice to Owner Other Than Tenant of Right to Reclaim Abandoned Property (CC §1985)

08-178

§8.178

Notice of Right to Request Inspection of Premises and to Reclaim Abandoned Property

08-185

§8.185

Waiver of Right to Receive Documents With Security Deposit Refund

CH09

Chapter 9

Unlawful Detainer: Preparing and Filing the Action

09-019

§9.19

Stipulation for Entry of Judgment or Dismissal (Attorney-Drafted)

09-027

§9.27

Sample Eviction Questionnaire

CH10

Chapter 10

Unlawful Detainer: Responsive Pleadings

10-019

§10.19

Notice of Motion to Quash Service of Summons; Supporting Memorandum and Declaration

10-022

§10.22

Checklist: Demurrable Defects in Complaint

10-027

§10.27

Demurrer to Complaint; Memorandum Supporting Demurrer (Defective 3-Day Notice Case)

10-039

§10.39

Notice of Motion to Strike; Memorandum Supporting Motion to Strike Allegations of Improper Damages

10-041

§10.41

Application for Order Extending Time to Respond; Order

10-070

§10.70

Checklist: Common Defects In Preparing And Serving Unlawful Detainer Complaint

CH12

Chapter 12

Unlawful Detainer: Trial

12-046

§12.46

Sample Instruction on Burden of Proof, Preponderance of Evidence

12-047

§12.47

Sample Instruction on Facts Plaintiff Must Establish

12-048

§12.48

Sample Instruction on Service of Notices; Computation of
Time

12-049

§12.49

Sample Instruction on Calculation of Rent and Damages

12-050

§12.50

Sample Instruction on Definition of “Fair Rental Value” for Assessing Damages

12-051

§12.51

Sample Instruction on Witnesses’ Opinions Concerning Fair Rental Value

12-052

§12.52

Sample Instruction on Statutory Damages; Definition of Malice

12-054

§12.54

Landlord’s Instruction

12-054A

§12.54A

Tenant’s Instruction

12-055

§12.55

Sample Instruction on Breach of Warranty—Factors to Consider; Notice of Defects

12-057

§12.57

Sample Instruction on Calculation of Reasonable Rent—Percentage-Reduction-in-Use Method

12-058

§12.58

Sample Instruction on Calculation of Reasonable Rent—Difference-in-Value Method

12-059

§12.59

Sample Instruction on Calculation of Reasonable Rent—Factoring in Tenant’s Discomfort and Annoyance

12-061

§12.61

Sample Instruction on Elements of Retaliatory Eviction (Month-to-Month Tenancy)

12-062

§12.62

Sample Instruction When Tenant Bears Entire Burden of Proof on Defense

12-063

§12.63

Sample Instruction When Landlord Bears Burden of Disproving Intent

12-063A

§12.63A

Sample Instruction on Breach of Implied Covenant of Quiet Enjoyment

12-063B

§12.63B

Sample Instruction on Waiver

12-063C

§12.63C

Sample Instruction on Estoppel

12-063D

§12.63D

Sample Instruction on Landlord’s Refusal of Rent

CH13

Chapter 13

Unlawful Detainer: Judgment and Posttrial Proceedings

13-034

§13.34

Judgment for Plaintiff (Attorney-Drafted)

13-041

§13.41

Order for Judgment for Defendant—Warranty of Habitability (Attorney-Drafted)

13-054

§13.54

Ex Parte Application for Stay of Execution

13-055

§13.55

Tenant’s Declaration of Hardship

13-057

§13.57

Application for Relief From Forfeiture

13-062

§13.62

Notice of Motion for Stay of Execution Pending Appeal

CH14

Chapter 14

Tenant Bankruptcies: Relief From Stay, Rent Claims, and Lease Issues

14-058

§14.58

Request for Special Notice and Proof of Service

14-060

§14.60

Landlord’s Request for Payment of Postpetition Administrative Rent; Sample Letter to Debtor’s Counsel

14-061

§14.61

Motion for Allowance and Payment of Administrative Rent Claim; Supporting Memorandum; Supporting Declarations

14-062

§14.62

Objection of Landlord to Debtor’s Motion to Extend Date to Assume or Reject Nonresidential Lease

14-062A

§14.62A

Objection to Debtors’ Motion on Proposed Going Out of Business Sale

14-062B

§14.62B

Objection to Proposed Expedited Procedures for Assumption and Rejection of Leases

14-063

§14.63

Motion to Terminate or Modify Stay; Supporting Memorandum; Supporting Declaration

14-064

§14.64

Order Granting Motion to Terminate or Modify Automatic Stay

14-067

§14.67

Stipulation and Order for Relief From Automatic Stay

14-068

§14.68

Ex Parte Application

14-069

§14.69

Order to Vacate Real Property

14-070

§14.70

Memorandum in Support of Application for Order to Surrender Property

 

Selected Developments

April 2017 Update

Transient Occupancy and Short-Term Rentals. Common interest communities may be subject to either covenants, conditions and restrictions (CC&Rs) or later enacted rules and regulations that place limits on the use of units for short-term or vacation renting. See, e.g., Almanor Lakeside Villas Owners Ass'n v Carson (2016) 246 CA4th 761.

Under Bus & P C §§22590–22594, any operator of a commercial Internet website, online service, or hosting platform must provide a specific notice to an occupant listing a residence, including a mobilehome, for short-term rental. New requirements are that the notice must also warn the tenant to review any restrictions on coverage in the tenant's renters' insurance policy related to short-term rentals to ensure that there is coverage in the event that (1) a person sustains an injury or loss for which the tenant is responsible; (2) a person damages or causes loss to personal property; or (3) a claim or lawsuit is made against the tenant or otherwise arises out of activities related to the hosting platform. See §§4.50F, 6.102, 8.68A.

Leasing Disclosures, Lease Provisions, and Insurance. Residential landlords must inform prospective tenants of any death (and the manner of death) occurring in a unit within the past 3 years. CC §1710.2(a)(1). (The statute does not define "manner of death"; case law has not as yet interpreted that phrase.) Landlords are not, however, required to disclose either (1) that a death (or manner of death) occurred in a unit more than 3 years before the tenant's offer to rent or (2) that a previous occupant was afflicted with human immunodeficiency virus (HIV) or died from AIDS-related complications for any period of time preceding the tenant's offer to rent. Such facts "are not material." CC §1710.2(a)(1). But a landlord is not immunized from liability arising from an intentional misrepresentation "in response to a direct inquiry" concerning deaths on the property. CC §1710.2(d). See §1.40.

In 2016, CC §2079.13 was amended to include transactions governed by CC §2079.7. This means that if the consumer information booklet entitled Residential Environmental Hazards: A Guide for Homeowners, Homebuyers, Landlords and Tenants is delivered to a lessee in connection with the transfer of real property, including property that is leased for more than 1 year, then the lessor or broker "is not required to provide additional information concerning, and the information shall be deemed to be adequate to inform the lessee regarding, common environmental hazards," as provided in CC §2079.7. See §1.40.

Under a new law, the landlord must not show, rent, or lease a residential unit that the landlord knows has bed bugs. Even if no infestation is present, the landlord has the right to inspect and must give a statutory bed bug notice to new residential tenants on and after July 1, 2017, and to existing tenants by January 1, 2018. See §§1.40, 3.2, 4.16F.

A landlord may prohibit smoking on the premises in the lease. Effective June 9, 2016, CC §1942.5 was amended to adopt the definitions of "smoking" and "tobacco product" in Bus & P C §22950.5. Both include the smoking of e-cigarettes and the inhalation of vaporized liquids. A landlord may also expressly prohibit the smoking of marijuana. On the federal level, the Department of Housing and Urban Development issued regulations that ban smoking in all public housing developments throughout the country in 24 CFR §§965.651–965.655, 966.4(f)(12). See §§1.58, 3.7B, 3.65, 4.44C, 4.50B, 5.18G.

Landlords must consider insurance needs from numerous perspectives. Primarily, as owners, landlords must decide what type of insurance coverage to purchase for protecting themselves from various risks, damages, and claims, and whether a requirement in the lease that the tenant purchase insurance is enforceable. See newly added §4.49B.

Fair Housing. If the grounds for lease termination involve criminal activity or material noncompliance with the lease or state landlord-tenant laws, tenants in HUD-assisted and project-based Section 8 units must be served with a notice according to state law and the rental agreement. This usually means a 3-day notice for tenants in most HUD-assisted programs but a 30-day notice for tenants in Section 202 or Section 811 programs. See Long Beach Brethren Manor, Inc. v Leverett (2015) 239 CA4th Supp 24. See §2.8.

Some California communities have adopted local ordinances that prohibit certain forms of discrimination against existing, and sometimes potential, tenants holding Section 8 certificates or vouchers or other kinds of tenant-based rental assistance. In November 2016, for example, Marin County enacted Marin County Mun C §5.53.010, which prohibits housing discrimination on the basis of "all lawful sources of income" including a "rental assistance program, homeless assistance program, security deposit assistance program or housing subsidy program." See §2.9B.

Land use decisions that have a disparate impact on a protected class are actionable under fair housing laws. See Avenue 6E Invs., LLC v City of Yuma (9th Cir 2016) 818 F3d 493 (impact on Hispanic citizens of rezoning denial that precluded development of affordable housing); Joint Statement of the Department of Housing and Urban Development and the Department of Justice on State and Local Land Use Laws and Practices and the Application of the Fair Housing Act (Nov. 10, 2016), discussed in §§2.19, 2.27J, 2.63, 2.65.

Housing providers should exercise caution when a tenant requests the delay of an eviction as a reasonable accommodation under fair housing law. See Brookside Apartments Realty v Heilman (Pa Sup 2015) 135 A3d 650 (request for accommodation by stay of eviction action was unreasonable because it would impose undue financial or administrative burden on housing provider; dealing with tenants' recurring housekeeping violations, noncooperation with housing maintenance by management, and repeated late payment of rent posed continuing and serious difficulties for manager of apartment complex), cited in §§2.27F, 12.39.

In the design, construction, or improvement of multifamily dwellings, "discrimination" includes the failure to design and construct the dwelling in a manner that allows access to and use by disabled persons, including required features such as the installation of accessible routes and utility systems, wide doorways, special kitchen and bathroom modifications, and elevators for specific types of buildings under the California Fair Employment and Housing Act. See §2.27E.

It is not necessary to pay or attempt to pay a discriminatory fee in order to establish standing to sue under the Unruh Act if a disabled person or those associated with the disabled person have personally experienced discriminatory treatment by a business. Plaintiffs who were required to pay a $300 nonrefundable cleaning fee for a service dog for a disabled person, and who were then turned away from the hotel when they did not do so, had standing to sue under CC §51.5. Osborne v Yasmeh (2016) 1 CA5th 1118. See §§2.20, 2.60, 5.7.

A business may validly treat different age groups differently if the pricing policy provides a social benefit to the recipient group, the recipient group is disadvantaged economically compared to other groups paying full price, and there is no invidious discrimination. Javorsky v Western Athletic Clubs, Inc. (2015) 242 CA4th 1386. See §§2.25, 5.7.

In 2016, regulations implementing the ADA Amendments Act of 2008 were substantially amended to provide that the term "disability" be interpreted broadly; whether an individual's impairment is a disability need not demand extensive analysis. The revised regulations further expand the definition of "major life activity" by providing a nonexhaustive list of such activities that specifically includes the operation of major bodily functions. See 28 CFR §§35.101, 35.108, 36.105; 81 Fed Reg 53204 (Aug. 11, 2016), cited in §2.26.

A city may amend an already existing municipal code section that regulates private homes as short-term vacation rentals to increase the minimum age of a responsible person for the rental from 21 years of age to 30 years of age. Such a change is not barred by the Unruh Act. Harrison v City of Rancho Mirage (2015) 243 CA4th 162. See §§2.57A, 7.62, 8.68A, 8.117.

The Fair Housing Act prohibits the use of criminal history by providers or operators of housing and real estate-related transactions when such use has a disparate impact on protected classes. On April 4, 2016, HUD issued guidance on how discriminatory effects and disparate treatment methods of proof apply when a provider justifies an adverse housing action—such as a refusal to rent or renew a lease—on the basis of an individual's criminal history. See §§2.5B, 2.8.

Although individuals who have limited English proficiency (LEP) are not a protected class under the Fair Housing Act, the Act prohibits housing providers from using LEP selectively based on a protected class or as a pretext for discrimination or in a way that causes an unjustified discriminatory effect. On September 15, 2016, HUD issued guidance addressing how disparate treatment and discriminatory effects methods of proof apply when a provider bases an adverse housing action—such as a refusal to rent or renew a lease—on an individual's limited ability to read, write, speak, or understand English. See §§2.5C, 2.11.

On September 21, 2016, HUD issued regulations entitled "Equal Access in Accordance With an Individual's Gender Identity in Community Planning and Development Programs." See 81 Fed Reg 64763 (Sept. 21, 2016), amending definition of "gender identity," so that it currently is defined as "the gender with which a person identifies, regardless of the sex assigned to that person at birth and regardless of the person's perceived gender identity." The 2016 amendments conform the HUD definition of "sexual orientation" in 24 CFR §5.100 to the Office of Personnel Management's current definition, which is "one's emotional or physical attraction to the same and/or opposite sex (e.g., homosexuality, heterosexuality, or bisexuality)." See §2.12A.

On September 13, 2016, HUD issued Guidance on Application of Fair Housing Act Standards to the Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic Violence, Other Crime Victims, and Others Who Require Police or Emergency Services. The Guidance states there may be issues with local nuisance ordinances that define nuisance as failure to maintain property, conduct that disturbs neighbors or is criminal, "excessive" calls for emergency or police services, and domestic violence incidents without regard for whether the resident is the victim or perpetrator. See §2.27J.

On October 5, 2016, HUD issued Application of the Fair Housing Act's Discriminatory Effects Standard to Insurance at 81 Fed Reg 69012 (Oct. 5, 2016), in which HUD stated that "categorical exemptions or safe harbors for insurance practices are unworkable and inconsistent with the broad fair housing objectives and obligations embodied in the Act. HUD continues to believe that the commenters' concerns regarding application of the discriminatory effects standard to insurance practices can and should be addressed on a case-by-case basis." See §2.27L.

Although discriminatory harassment is most identified with conduct directed at a person on the basis of sex, it also includes discriminatory conduct directed against all protected classes. In 2016, HUD issued amendments to its fair housing regulations to formalize standards for use in investigations and adjudications involving allegations of harassment on the basis of race, color, religion, national origin, sex, familial status, or disability. See 81 Fed Reg 63054 (Sept. 14, 2016). These amendments are intended to clarify existing law on the subject of quid pro quo and hostile environment harassment applicable to all protected categories, because such conduct can be far more intrusive, violative, and threatening than harassment in the more public environment of one's workplace. Title 24 CFR §100.7(a)(1)(iii) makes a person directly liable for "failing to take prompt action to correct and end a discriminatory housing practice by a third-party" when the person knew or should have known of the conduct and had the power to correct it. See §§2.27M, 2.68.

Rights and Obligations During and After Tenancy. To encourage the conservation of water in multifamily residential rental buildings, the legislature enacted Stats 2016, ch 623, §2, operative January 1, 2018. It applies when a landlord uses a submeter to charge a tenant separately for water service to an individual dwelling unit and imposes requirements on landlords. Under CC §1954(a)(5), a landlord may enter a dwelling unit for specified purposes relating to a submeter or water fixture if certain requirements are met. See §§3.2, 4.50G.

Attorney fees are recoverable on causes of action for constructive eviction and for breach of the covenant of quiet enjoyment and of the warranty of habitability, which are actions "on the contract" for purposes of CC §1717, as long as the lease contains an attorney fee clause. Hjelm v Prometheus Real Estate Group (2016) 3 CA5th 1155. See §§3.7, 3.15, 3.41, 13.25, 13.40.

A new checklist, "Tenant Causes of Action and Remedies for Habitability Violations and Nuisances," was added to §3.48B.

Under Pen C §396(b), landlords are prohibited from raising rent prices more than 10 percent on "housing" for 30 days after a declared state of emergency resulting from an earthquake, flood, fire, riot, storm, natural or manmade disaster, drought, or plant or animal infestation or disease. See §3.66C.

When the lease requires the tenant to purchase liability insurance, the landlord should require that it be named as an additional insured; when there might be more than one concurrent cause for an injury or damage claim, the insurance coverage issues are complex. See, e.g., Morlin Asset Mgmt. LP v Murachanian (2016) 2 CA5th 184, cited in §3.71.

Public entity landlords are not always bound by the same law as private landlords. For example, a tenant who rented from a city was injured by a fire resulting from the city's negligent failure to replace a fire extinguisher, but the court held that Gov C §850.2 immunized the city from the tenant's suit. Puskar v City & County of San Francisco (2015) 239 CA4th 1248. See §§3.71, 5.13.

In Garcia v Holt (2015) 242 CA4th 600, a landowner was not liable to a landscaper injured by explosives brought onto the property by the tenant because the owner did not know of the dangerous condition. See §3.72.

There is increasing use of social media and Internet websites that collect and publish online information about individuals and consumer reviews of businesses. Landlord attorneys who encounter an acrimonious client should cautiously remind the client that defamation suits do happen even if such postings are published under an alias. See, e.g., Kinda v Carpenter (2016) 247 CA4th 1268, cited in §4.13.

Recreational use of marijuana in California was legalized beginning November 9, 2016, by Proposition 64, commonly known as the Adult Use of Marijuana Act. It allows persons who are 21 years of age and older to (1) possess, process, transport, purchase, obtain, or give away (without compensation) up to 28.5 grams of nonconcentrated cannabis and up to 8 grams of concentrated cannabis and (2) possess, plant, cultivate, harvest, dry, or process up to 6 living plants. See §4.44F. The new law builds on and utilizes many aspects of the comprehensive regulatory structure for commercial medical cannabis. California anticipates a likely rise of marijuana use at residential properties statewide; creating procedures and policies to minimize nuisance allegations and to respond to resident complaints will be important to consider and will be similar to those issues landlord face in response to medical marijuana, discussed in §§4.44B–4.44E.

A checklist was added to §5.17A listing the reasons allowed under CC §1954 and other statutes for a landlord's entry into a "dwelling unit" occupied by a tenant.

A government agency, such as a local rent board, may alternatively comply with a request for public records by posting the records on its Internet website, but if the requesting party wants a copy of the record because of an inability to access or reproduce it from the agency's website, the agency must promptly provide a copy of the record under Govt C §6253(f). See §5.35.

Anti-SLAPP Motions. The supreme court resolved a court of appeal split and held that if a cause of action includes allegations of both unprotected activity and protected conduct under CCP §425.16, the trial court may strike the protected activity claims within a cause of action while allowing the unprotected claims to remain. Baral v Schnitt (2016) 1 C5th 376. See §§5.18A–5.18B, 7.78B.

An attorney's actions will be considered to arise out of protected activity under §425.16 when the only actions the attorney took were communicative acts in representing clients for pending or threatened litigation; such acts are "unquestionably protected activities" under §425.16. Contreras v Dowling (2016) 5 CA5th 394. See §5.18A.

On recovering attorney fees in anti-SLAPP motions, see Mountjoy v Bank of America (2016) 245 CA4th 266 (court of appeal held that trial court may not simply engage in across-the-board reduction of hours but must consider number of hours actually included in flawed entries). See §§5.18A, 10.30, 13.29, 13.40A.

Mobilehome Park Tenancies. Many parks require that the resident signing the rental agreement be the registered owner of the mobilehome and that at least one occupant be a registered owner. But many mobilehome owners are not the registered owners, often because registering requires a new owner to certify compliance with certain safety items and to pay significant arrearages of registration fees, personal property taxes, interest, and penalties. To address this, California established a partial fee and tax waiver program for new registrations between January 1, 2016, and December 31, 2019. See §§6.12–6.13.

In Rancho de Calistoga v City of Calistoga (9th Cir 2015) 800 F3d 1083, the court rejected all of petitioner's constitutional claims against the rent control ordinance. The court also rejected a creative "private taking" assertion, finding that it was really just a facial challenge, stating it could not be used as an independent means to challenge an alleged regulatory taking since the facial challenge was time-barred. See §§6.16, 7.11, 7.13–7.14.

The Mobilehome Park Rehabilitation and Purchase Fund was amended in 2016 to clarify that the loans could be used for specified mobilehome repairs and replacements, including accessibility-related upgrades. See §6.17.

In Schermer v Tatum (2016) 245 CA4th 912, homeowners filed a class action against the defendants, who owned and operated 18 mobilehome parks, claiming damages for alleged unconscionable lease agreements and practices in their parks, including lease agreements that directly violated the MRL. The merits were not litigated because the trial court, affirmed by the court of appeals, dismissed the lawsuit without leave to amend because of the lack of a community of interest necessary for class certification. See §6.23.

Effective July 1, 2016, the legislature amended the existing sign and open house restrictions in the MRL, allowing one open house sign, specifying the type of standard holding it, and allowing park management to enforce reasonable rules governing an open house. CC §798.70(a) (operative July 1, 2016; see Stats 2015, ch 288, §2). See §6.59.

Effective July 1, 2016, CC §798.74(a) provides that mobilehome park management may reject an applicant for reasons based on fraud, deceit, or concealment of material facts by the applicant. See §6.61.

According to amendments in 2015 and 2016, if park management acquires a mobilehome at a warehouse lien sale and intends to salvage it, management may permanently dispose of the mobilehome without payment of fees or taxes if it complies with extensive procedures specified in CC §798.56a(e)(2), including the filing of a notice of disposal with HCD "no less than 30 days after the date of sale to enforce the lien." See §§6.91–6.92.

In Penilla v Westmont Corp. (2016) 3 CA5th 205, plaintiffs sued the park owner and its management, alleging contract, tort, and statutory violations. The trial court denied defendants' motion to compel arbitration, finding that arbitration provisions in the rental agreements were unconscionable. The appellate court affirmed, holding that the arbitration provisions were both procedurally and substantively unconscionable. See §6.98.

The Mobilehome Residency Law establishes the rights and responsibilities of residents and park management. It requires park owners to give notice under CC §798.15(i) to residents as part of the rental agreement and again to provide the notice personally or by USPS mail to all homeowners each year before February 1; in 2016, the notice was substantially revised. See §6.152.

Local Eviction Controls and Constitutional Issues. San Francisco Rent Board Rules and Regulations §12.20, which prohibits evictions for violations of unilateral changes to lease agreements, is not preempted by CC §827, the statute that requires 30 days' prior notice for unilateral changes to rental agreements. The Rent Board did not exceed its authority in promulgating Rule 12.20, as the Board has the power to promulgate regulations to effectuate the purposes of the rent ordinance. Foster v Britton (2015) 242 CA4th 920. See §§7.25, 7.53, 7.57.

Retroactively applicable as of January 1, 2016, CC §1947.8(i)(2) removes the rent registration requirement for any tenancy entered into after January 1, 1999, for which the owner of residential property may establish the initial rent under the Costa-Hawkins Rental Housing Act. In addition, CC §1947.8(i)(2) provides that for any tenancy commencing on or after January 1, 1999, if a property owner has provided the local agency with the tenancy's initial rent in compliance with that agency's registration requirements in a writing signed under penalty of perjury, there is a rebuttable presumption that the statement of the initial rent is correct. See §7.45.

A city may not impose a 10-year waiting period between an Ellis Act eviction and a merger of two residential rental units into one unit. San Francisco Apartment Ass'n v City & County of San Francisco (2016) 3 CA5th 463. See §§7.64, 7.64B, 7.64H.

Terminating Tenancies and Eviction Actions. In Taylor v Nu Digital Mktg., Inc. (2016) 245 CA4th 283, the court found that a real property sales contract, which included monthly payments that were not credited to the purchase price of the property but were in fact "rent," operated like a lease; when the defendant ceased making such payments, the landlord was able to use an unlawful detainer action to regain possession. See §§1.9, 9.3, 9.36, 10.11, 10.12, 10.20.

Although the Ninth Circuit has not yet addressed this issue, a district court in Dickman v Kimball, Tirey & St. John, LLP (SD Cal 2013) 982 F Supp 2d 1157 held that a law firm's conduct to enforce rent obligations, by sending pay rent or quit and other notices to a tenant before filing an unlawful detainer action, was subject to fair debt collection laws. See §8.33.

Ordinarily, the remedy for squatting is an action in trespass or nuisance because there is no underlying landlord-tenant relationship. A summary remedy to eject squatters (CCP §§527.11–527.12) was enacted (effective January 1, 2015, and only until January 1, 2018), but it applies only to residences of up to four units in the cities of Palmdale and Lancaster in Los Angeles County and the City of Ukiah in Mendocino County. See §§8.7A, 9.10.

Under a temporarily amended version of CCP §472(a), a landlord may amend its filed complaint once without court permission (1) at any time before the tenant's answer or demurrer is filed or (2) after the demurrer is filed but before the demurrer is heard as long as the amended complaint is filed and served no later than the date for filing opposing papers to the demurrer (in effect only until January 1, 2021). See §§9.43, 10.21.

Under CCP §1167.1, effective January 1, 2017, if the landlord does not file with the court a proof of service of the summons within 60 days of filing the complaint, the court may dismiss the action without prejudice. See §§9.45, 9.55A.

The supreme court in deSaulles v Community Hosp. (2016) 62 C4th 1140 held that when a settlement agreement on a litigation matter is silent regarding costs, the defendant's payment of money to the plaintiff also triggers mandatory payment of costs under CCP §1032(a)(4) because the plaintiff obtained a "net monetary recovery." See §§9.18B, 13.21.

The California Supreme Court accepted for review Shaw v Superior Court (review granted Nov. 12, 2014, S221530; superseded opinion at 229 CA4th 12) because there is uncertainty about whether a party may get immediate review of the denial of a request for a jury trial by way of a writ of mandate or instead must wait until after a bench trial to appeal the issue. See §11.53.

In North 7th St. Assocs. v Constante (2016) 7 CA5th Supp 1 (Constante II), the tenant prevailed on a defensive summary judgment motion in an unlawful detainer action, in which he had contended that the unit lacked a building permit and a certificate of occupancy, the landlord could not enforce any rental obligations for the unlawful unit, and therefore the 3-day notice to pay or quit was defective. On appeal, the appellate division of the superior court agreed. See §§3.11E, 8.46, 10.54, 12.22.

An order denying a peremptory challenge is not appealable and may only be reviewed by way of a petition for a writ of mandate. CCP §170.3(d); People v Superior Court (Tejeda) (2016) 1 CA5th 892. See §12.5.

When a plaintiff voluntarily dismisses the lawsuit, usually no attorney fees may be awarded to the defendant under CC §1717, which allows attorney fees when a contract provides for them. But attorney fees may be awarded to the defendant when a statute or ordinance (such as the Los Angeles rent escrow ordinance) provides for attorney fees to the "prevailing party." Intelligent Invs. Corp. v Gonzales (2016) 1 CA5th Supp 1. See §§3.41, 13.27, 13.40B.

Although all courts agree that mandatory relief from default under CCP §473(b) is not available when the error causing the default is the client's alone, the courts are divided on whether it is available when the error is partly the client's and partly the attorney's. See Martin Potts & Assocs. v Corsair, LLC (2016) 244 CA4th 432. See §13.8.

An amendment to CCP §1033.5 provides that fees for electronic filing or service of documents through a provider if a court requires or orders electronic filing or service of documents are recoverable as costs. See §13.22.

To protect the privacy of tenants, beginning January 1, 2017, CC §1161.2(a)(1)(F) provides that court-filed unlawful detainer records will remain sealed, unless the landlord prevails within the first 60 days, or unless access is otherwise authorized under CC §1161.2(a)(1)(A)–(E). Under §1161.2(a)(1)(F), if a default judgment is set aside more than 60 days after the unlawful detainer complaint was filed, the court file access restrictions apply as if the complaint were filed on the date the default was set aside. See §§4.5, 5.24A, 5.25–5.25A, 13.16A, 13.35.

If a tenant is evicted under a writ of possession issued on an unlawful detainer judgment and then prevails on appeal, the tenant need not file a cross-complaint seeking restitution of possession to obtain that relief. Beach Break Equities, LLC v Lowell (2016) 6 CA5th 847 (noting that trial court has discretion to grant or deny restitution, even if appellate court directed it to provide tenant with appropriate restitution hearing and to restore tenant as far as possible to position occupied before eviction). See §13.61.

California law governs the process for the enforcement of money judgments and authorizes a registered process server (RPS) to levy under a writ of attachment and a writ of execution on certain designated property of the debtor. In addition, an RPS can garnish wages by serving an earnings withholding order on an employer. All three procedures require the RPS to deposit specified documents with the levying officer and pay a specified fee, but they were amended in 2016 to provide that the required documents and fee could be delivered to the levying officer by someone other than the RPS. See §13.74.

Tenant Bankruptcies and Stay Relief to Complete Eviction. While not directly ruling on whether CCP §715.050 was preempted by the Bankruptcy Code, the Ninth Circuit held that a debtor (the former property owner) had no legal or equitable interest in the real property after issuance of state court's unlawful detainer judgment and writ of possession following a foreclosure; thus, the automatic stay created by the debtor's subsequent bankruptcy was not violated by the eviction. Eden Place, LLC v Perl (In re Perl) (9th Cir 2016) 811 F3d 1120. See §§14.9, 14.16–14.19, 14.21.

A debtor-tenant in a Chapter 7 bankruptcy successfully argued under New York law that the debtor's interest in her rent-stabilized lease (in a rent-controlled city) was exempt from her bankruptcy estate as a "local public assistance benefit." See In re Santiago-Monteverde (2014) 998 NYS2d 144, 147, 22 NE3d 1012, discussed in §§14.19, 14.33.

A state court judgment against a debtor on a fraudulent misrepresentation claim can preclude the debtor from contesting the issue in a subsequent proceeding to declare the debt to be nondischargeable under 11 USC §523(a). See, e.g., Kondapalli v DeMasi (In re DeMasi) (MD Fla 2016) 551 BR 653 (because state court judgment against debtor addressed all elements of §523(a), it was given collateral estoppel effect to support summary judgment for creditor in later nondischargeability action, and related unliquidated claim for attorney fees were nondischargeable as well). See §14.20.

Some debtors try to avoid the dismissal of the bankruptcy on the creditor's or the court's motion by attempting to voluntarily dismiss the case before the hearing. This is not allowed in the Ninth Circuit if the debtor had filed the bankruptcy in bad faith; further, the court can convert a Chapter 13 case on finding the debtor acted in bad faith and deny the debtor's motion to dismiss. In re Brown (Bankr SD Cal 2016) 547 BR 846. See §§14.32, 14.56.

Attorney fees are not be recoverable in stay relief litigation, which is not considered to be an action on the contract for purposes of fee recovery. See Green Tree Servicing v Giusto (ND Cal 2016) 553 BR 778. See §§14.32, 14.51.

Debtors must remain current on postpetition rent arising under nonresidential real property leases pending assumption or rejection. 11 USC §365(d)(3). If a lease is deemed terminated and expired before the bankruptcy, the debtor would not be obligated to make immediate payment of postpetition rent under §365(d)(3) because that section only applies to unexpired leases, but the landlord may have an administrative claim for holdover rent and related charges. See In re Art & Architecture Books of the 21st Century (Bankr CD Cal, Mar. 21, 2016, No. 2:13–bk–14135–RK, Chapter 11) 2016 Bankr Lexis 878. See §14.45.

The reciprocal right to attorney fees under CC §1717 presents risk to creditors in bankruptcy litigation, since a losing debtor may not have resources to pay fees, but may be allowed to recover fees against a losing creditor that is solvent. See, e.g., Cardenas v Shannon (In re Shannon) (BAP 9th Cir 2016) 553 BR 380 (debtors' right to attorney fees for defeating nondischargeability action depends on whether litigation involved state law issues rather than federal nondischargeability issues). But if the issues in the nondischargeability action do not involve enforcing a contractual right, fees are not recoverable. See Bos v Board of Trustees (9th Cir 2016) 818 F3d 486. See §14.51.

The Bankruptcy Code's cap on the amount of a landlord's unsecured claim for damages resulting from the rejection of a lease applies to all damages resulting from lease termination. But the cap does not apply to damages that do not result from termination; hence, even if a landlord obtained a damage award before the bankruptcy, attorney fees and costs in such an award should be apportioned, and only those amounts resulting from termination would be subject to the cap. Kupfer v Salma (In re Kupfer) (9th Cir, Dec. 29, 2016, No. 14–16697) 2016 US App Lexis 23385. See §14.55D.

Although courts in the Ninth Circuit have limited the debtor's right to dismiss because of the debtor's bad faith, debtors have not been denied the right to claim allowable exemptions on that basis. See Elliot v Weil (In re Elliot) (BAP 9th Cir 2014) 523 BR 188 (Elliott I) (bankruptcy court may not deny Chapter 7 debtor's exemption claim on basis of bad faith or prejudice to creditors, absent other statutory grounds for denial) and In re Lua (Bankr CD Cal 2015) 529 BR 766 (error to deny Chapter 7 debtor leave to amend exemption schedule on basis of debtor's alleged bad faith). But bankruptcy courts have the authority to find other grounds for denying the exemption. See, e.g., Elliot v Weil (In re Elliot) (BAP 9th Cir 2016) 544 BR 421 (Elliott III) (debtor violated 11 USC §522(g)(1)). See §14.56.

About the Authors

MYRON MOSKOVITZ, who received his law degree in 1964 from the University of California, Berkeley, School of Law, coauthored chapters 3, 5, 7, and 8 and has continued to update those chapters annually for this edition. He served as law clerk to Justice Raymond E. Peters of the California Supreme Court, Chief Attorney of the National Housing Law Project, and Chairman of the State Commission of Housing & Community Development. He was a Professor of Law at Golden Gate University in San Francisco for more than 40 years. He is currently the Legal Director of Moskovitz Appellate Team in Piedmont; he has written several books on appellate law and teaches MCLE courses for attorneys on the subject.

SONYA BEKOFF MOLHO, B.A., 1971, San Fernando Valley College (now California State University, Northridge); J.D., 1977, Loyola Law School, Los Angeles, has worked as an update author on chapters 7, 10, and 12 of this book since 2000. Ms. Molho has been a sole practitioner in Los Angeles continuously since 1978, representing primarily tenants. Her familiarity with tenant protection laws in both local ordinances and rent control regulations for the cities of Santa Monica and Los Angeles is especially helpful to the readers of this book. In 2012, she was given the annual Spirit of CEB award for her contributions to CEB landlord-tenant titles. She is also on the annual update team for CEB's California Eviction Defense Manual (2d ed Cal CEB) and has been a speaker for both CEB and Rutter Group MCLE programs.

NANCY C. LENVIN, B.A., 1966, Barnard College, Columbia University; J.D., 1969, Rutgers University, coauthored chapters 3, 7, and 9, wrote chapter 4, and has continued to update those chapters annually for this edition. Ms. Lenvin is a partner with Utrecht & Lenvin LLP, San Francisco. She primarily represents residential property owners and commercial property owners and tenants. Currently, her practice focuses on the negotiation and drafting of leases and other contracts, providing management reviews to assist clients in problem avoidance, and representing clients before administrative agencies including the San Francisco Rent Stabilization and Arbitration Board. Ms. Lenvin has served as an officer and director of the San Francisco Apartment Association and the California Apartment Association, and as a member of the Board of the Small Property Owners Association, for whom she prepared a standard lease and other forms.

RONALD S. JAVOR, B.A., 1967, University of California, Los Angeles; J.D., 1974, University of Southern California, coauthored chapter 6 and has been updating the chapter since 1998. Now semi-retired, Mr. Javor was formerly the General Counsel, a senior legal counsel, and an Assistant Deputy Director with the California Department of Housing and Community Development in Sacramento. That affiliation is provided for identification only; opinions in chapter 6 do not represent those of the Department or the State of California.

NANCY J. NEWMAN, B.A., 1980, University of California, Santa Cruz; J.D., 1983, University of California, Davis, School of Law, began annually updating chapter 14 in 1999 and has substantially rewritten the chapter. Ms. Newman is a partner with Hanson Bridgett LLP, San Francisco, specializing in commercial and real estate litigation for more than 30 years. She counsels clients on rights and remedies,and handles litigation to recover money or regain possession of property. She represents landlords in tenant bankruptcies nationwide and has particular expertise using provisional remedies. Ms. Newman has written and spoken on a variety of topics in business and lease litigation, including creative use of creditors' remedies and bankruptcy strategies.

MOHAMMAD WALIZADEH, B.A., 2000, University of California, Los Angeles; J.D., 2004, University of California, Berkeley, School of Law, began annually updating chapter 14 in 2015. Mr. Walizadeh is a partner with Hanson Bridgett LLP, San Francisco, specializing in real property and commercial litigation. He handles a diverse range of litigation, including lease and contract actions, debt collection cases, bankruptcy matters, class actions, and probate and trust cases. Mr. Walizadeh represents landlords and property owners in national bankruptcy matters. He is active in the Bar Association of San Francisco's Courthouse Landlord/Tenant Project and has conducted multiple settlement negotiations on behalf of low income tenants defending against evictions.

PAUL E. SMITH, B.A., University of California, Berkeley; J.D., Golden Gate University School of Law, San Francisco, is currently Chief of the Intake Branch, Office of Fair Housing and Equal Opportunity of the United States Department of Housing and Urban Development (HUD), in San Francisco. Before working at HUD, he was the Fair Housing Program Director at Midpeninsula Citizens for Fair Housing. The views expressed in chapter 2 are solely those of the author and do not necessarily represent the views of the Department of Housing and Urban Development or those of the United States Government.

SCOTT A. FREEDMAN, B.A., Tulane University, 2000; J.D., Santa Clara University School of Law, 2005, currently updates chapters 3, 4, 7, and 9. Mr. Freedman is a partner with Zachs & Freedman, San Francisco, where he specializes in litigation, including real estate suits, landlord-tenant matters, construction defect cases, and business and partnership disputes. He is experienced in all aspects of litigation and has significant trial experience. Mr. Freedman is a member of the Small Property Owners of San Francisco (SPOSF), participates in SPOSF's "ask-a-lawyer" program, and has contributed numerous articles to SPOSF's newsletter.

PATRICIA H. TIREY, B.A., University of California, Santa Barbara; J.D., University of San Diego Law School, has worked as an annual update author on chapters 1, 11, and 13 since 2001. Ms. Tirey is a senior partner with Kimball, Tirey & St. John, San Diego, specializing in unlawful detainer litigation and appeals, both residential and commercial. She has lectured extensively on the subject of landlord-tenant law to property owners and managers and to other attorneys in MCLE courses.

JAMES MORALES, B.A., 1976, University of California, Berkeley; J.D., 1979, University of Michigan, wrote chapter 2. Mr. Morales was the Director of the San Francisco Redevelopment Agency (SFRA), and is currently employed in the Successor Agency to the SFRA. At the time he wrote this chapter, he was a staff attorney with the National Center for Youth Law, San Francisco.

MICHAEL RAWSON, B.A., 1975, University of California, Santa Barbara; J.D., 1980, Golden Gate University School of Law, San Francisco, was the principal update author of chapter 2 from 1998 to 2010. Mr. Rawson is the director of the California Public Interest Law Project in Oakland, where he handles impact litigation on state and federal land use, community redevelopment, fair housing, and tenant-landlord law. He contributed substantial new material to chapter 2 during the 1998 and 1999 book updates.

TED KIMBALL, B.S., 1973, Arizona State University; J.D., 1977, Western State University, coauthored chapter 3 and for several years (1998–2001) worked as an update author on this edition. Mr. Kimball is a senior partner with Kimball, Tirey& St. John, San Diego, specializing in landlord-tenant law (commercial and residential), leases and related document review, opinion letters, and fair housing counseling.

TERRY R. DOWDALL, B.A., 1973, J.D., 1977, University of Southern California, coauthored chapter 6. Mr. Dowdall is the owner of Dowdall Law Offices, Orange, specializing in representing mobilehome park owners.

E. HOUSTON TOUCEDA, B.A., 1959, B.S., 1960, North Texas State University; L.L.B., 1981, San Fernando Valley College of Law, coauthored chapter 1. Mr. Touceda is the owner of the Law Offices of E. Houston Touceda, Los Angeles.

ROBERT S. COLDREN, B.A., 1975, University of Denver; J.D., 1978, Loyola Law School, worked on the annual updates for chapter 6 from 2004 through 2006. Mr. Coldren is a founding partner in Coldren Law Offices, APLC, Santa Ana, specializing in business and real estate issues, including landlord and tenant disputes, homeowners association law, manufactured housing and RVs, and broker commission disputes. Mr. Coldren enjoys a special reputation in the area of property rights, land use, and regulatory "taking" issues.

LINDA J. LESTER, B.A., 1971, Loyola Marymount University; J.D., 1978, University of California, Berkeley, School of Law, worked on the annual updates for chapter 6 from 2004 through 2006. Ms. Lester, now inactive, was an associate attorney in Hart, King & Coldren, Santa Ana, and represented owners of manufactured housing parks in unlawful detainer actions, including evictions based on substantial annoyance, in bankruptcy court to obtain relief from stay to complete evictions, and in foreclosures and warehousemen's liens against mobilehomes. She has defended owners in suits based on violations of the Fair Housing Act.

ANDREW J. WIEGEL, B.A., 1972, M.A., 1974, California State University, San Francisco; J.D., 1977, Golden Gate University School of Law, San Francisco, coauthored chapters 9–13 and sometimes consults on annual updates. He is a principal with Wiegel Law Group, PLC, San Francisco, specializing in real property litigation with an emphasis on landlord-tenant law.

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