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An introduction to unlawful detainer trials
By Steven J. Kleifield

Unlawful detainer is a narrowly tailored procedure designed to expeditiously resolve landlord-tenant disputes involving right to possession of rental property. The primary purpose of unlawful detainer cases is to determine the right to possession of rental property, forfeiture of the lease or rental agreement, and secondarily, to determine any past due rent and damages for the tenant's "holdover."

The objective of this article and self-study test is to introduce attorneys and bench officers unfamiliar with this procedure to common issues relating to the trial of these cases.

Unlawful detainer trials are given precedence in trial setting. The right to an expedited hearing is part of the statutory scheme that replaced the common law rights and remedies of landlords, which included the right to enter and expel the tenant by force. Childs v. Eltinge, 29 CA3d 843 (1973).

Either the plaintiff or the defendant can request that the case be set for trial by filing the Judicial Council form UD-150. Code of Civil Procedure Section 1179a. The trial must be held not later than the 20th day following the date that the request to set the time of the trial is made. Code of Civil Procedure Section 1170.5(a).

The court may extend the period for trial upon the agreement of all parties. Code of Civil Procedure Section 1170.5(a). But, if the plaintiff does not agree to a continuance, the court may condition any continuances on the defendant paying rent into an escrow account for so long as the defendant remains in possession pending the termination of the action. This must be based on the court "finding that there is a reasonable probability that the plaintiff will prevail in the action." Code of Civil Procedure Section 1170.5(c).

Unless good cause is shown, an extension of time for trial may not exceed 10 days without the consent of the adverse party. Code of Civil Procedure Section 1167.5.

The availability of preferential trial setting is eliminated if the defendant no longer occupies the property. Once possession of the property has been delivered to the lessor, the unlawful detainer proceeding converts to an ordinary civil action for damages. Code of Civil Procedure Section 1952.3.

The parties to an unlawful detainer case have the right to a jury trial unless jury is waived. Code of Civil Procedure Sections 1171 and 631. A party waives the right by failing to appear at trial; by written consent filed with the clerk or judge; by oral consent, in open court, entered in the minutes; by failing to demand a jury within five days after notice of setting; by failing to deposit with the clerk or judge advance jury fees; or by failing to deposit jury fees on the second and subsequent trial days. Code of Civil Procedure Section 631(d).

In a regular civil case, the advance jury fee deposit must be made at least 25 calendar days before the date initially set for trial. In unlawful detainer cases, however, the fees must be deposited at least five days before the date set for trial. Code of Civil Procedure Section 631(b).

An eligible party can obtain a waiver of jury fees, among other costs, by submitting an application and order to the court. Government Code Sections 68630 et seq; California Rules of Court 3.50 et seq. An order waiving jury fees may not, however, relieve a party from the requirement of posting advance jury fees, to avoid waiving the right to a jury trial. Code of Civil Procedure Section 631.1.

The court may, in its discretion, grant relief from the waiver of a jury trial. Code of Civil Procedure Section 631(e). Ordinarily, a court grants relief from a waiver if the opposing party has not suffered prejudice. The mere fact that trial will be by jury is not prejudice per se. Johnson-Stovall v. Superior Court, 17 CA4th 808 (1993).

Rental agreements may provide for waiver of the right to a jury trial or arbitration. But these provisions were declared to be unenforceable by the state Supreme Court in Grafton Partners v. Superior Court, 36 C4th 944 (2003).

The most common unlawful detainer action concerns failure to pay rent. The landlord has the burden of proving by a preponderance of the evidence the following: (1) the landlord owns the property; (2) the landlord rented the property to the tenant; (3) under a written or oral rental agreement, the tenant agreed to pay rent in a specified amount; (4) the landlord properly gave three days' written notice to pay the rent or vacate the property (or that the tenant actually received the notice at least three days before the date on which the action was filed); (5) as of the date of the three-day notice, at least the amount stated in the notice was due; (6) the tenant did not pay or attempt to pay the amount stated in the notice within three days after service or receipt of the notice; and (7) the tenant is still occupying the property. Code of Civil Procedure Sections 1161 and 1952.3(a); CACI 4302.

Failure to pay rent is not the only ground on which an unlawful detainer action may be brought. An unlawful detainer action may be brought for violating other terms of a lease or rental agreement. Code of Civil Procedure Section 1161(3). California follows the Restatement of Contracts rule that the breach must be "material," "substantial," or "total" to justify a termination. Whether the violation is of such a nature is a factual issue for the jury. Superior Motels Inc. v. Rinn Motor Hotels Inc., 195 CA3d 1032 (1987).

An unlawful detainer action may also be brought for "assigning or subletting or committing waste upon the demised premises, contrary to the conditions or covenants of his or her lease, or maintaining, committing, or permitting the maintenance or commission of a nuisance upon the demised premises or using the premises for an unlawful purpose...." Committing defined acts of domestic violence, sexual assault, or stalking against another tenant or subtenant on the premises creates a rebuttable presumption affecting the burden of proof that the person has committed a nuisance upon the premises. Code of Civil Procedure Section 1161(4). Local rent control laws may include certain conduct in the category of "nuisance." See Los Angeles Rent Stabilization Ordinance Section 151.09(A)(3), including gang, weapon, and drug-related activities. An unlawful detainer action based on waste, nuisance, or using the premises for an unlawful purpose terminates the lease and allows service of a three-day notice to quit, not to cure or quit. Code of Civil Procedure Section 1161(4).

The landlord must prove that proper notice was given, and that the appropriate time period expired before the lawsuit was brought. "Giving proper notice" may be a trial issue, based on the content of the notice and the method of service. Insufficiency of the evidence on either point can be fatal to the landlord's case.

A three-day notice to quit is used when the tenant has allegedly breached a covenant in the lease that cannot be cured. A three-day notice to perform a covenant or quit is used when the breach is capable of being cured, such as removing a pet when pets are prohibited under the rental agreement. Code of Civil Procedure Section 1161(2)-(3).

The most common notice is the three-day notice to pay rent or quit. For residential tenancies, the notice must state "the amount which is due," as well as other payment information. If the rent due is overstated, the notice is ineffective and will not support an unlawful detainer action. Levitz Furniture Co. v. Wingtip Communications Inc., 86 CA4th 1035 (2001). Rent may be overstated if the rent was raised in violation of local rent control laws. Nourafchan v. Miner, 169 CA3d 746 (1985). Further, the notice may only be served within one year after the rent becomes due. Code of Civil Procedure Section 1161(2).

These are not mere technical requirements. The requirement that the notice not overstate "the amount which is due" is to discourage the landlord from claiming an overdue rental figure that is so exaggerated that a tenant would choose not to pay and would just leave. As the appellate court held in Levitz Furniture Co. v. Wingtip Communications Inc., under the one-year requirement is to prevent a landlord from unfairly sitting on her rights when rent is unpaid at some point in the rental relationship, and then using long-overdue rent to effect an eviction.

A 30-day notice to quit is used when the tenant is renting on a month-to-month basis, or is holding over after a longer term lease has expired. Code of Civil Procedure Section 1161(5); Civil Code Section 1946. Cause for such an eviction need not be proved, unless federal regulations or a local ordinance provides otherwise. Civil Code Section 1946.

As for service of the notice, this again is no mere technicality. Code of Civil Procedure Section 1162 provides for three methods of service: personal delivery to the tenant; substituted service - leaving a copy with an appropriate person if the tenant is not there and mailing a copy; or "affixing" a copy in a "conspicuous place on the property" if substituted service cannot be made and mailing a copy. This last method is commonly referred to as "nail and mail."

Service of the notice is a condition precedent to maintaining an unlawful detainer action. When the fact of service is contested, the landlord may not rely on the affidavit of service; the testimony of the person who made the service is required. Liebovich v. Shahrokhkhany, 56 CA4th 511 (1997).

Certain affirmative defenses are available to the tenant in an unlawful detainer case. As with affirmative defenses generally, the defendant has the burden of proof by a preponderance of the evidence. Evidence Code Sections 115, 500.

The most common affirmative defense is breach of the warranty of habitability, which is available only in a case based on nonpayment of rent. The defendant has the burden of proving that the landlord has not maintained the property in a habitable condition during the period for which rent was not paid. The obligation to put rental units into a condition fit for the occupation of human beings, and to repair all subsequent dilapidations thereof that render it untenantable, is codified in Civil Code Section 1941. Civil Code Section 1941.1 sets out several affirmative standard characteristics, the substantial lack of which cause a residential unit to be "untenantable." To constitute a defense, the breach of the warranty of habitability must be "substantial." Code of Civil Procedure Section 1174.2.

If the defense is proved, a conditional judgment is entered, where possession of the premises is denied to the landlord and the tenant is adjudged to be the prevailing party, conditioned upon the payment by the tenant of the reasonable rental value of the premises in its untenantable state to the date of trial within a reasonable period of time not exceeding five days from the date of the court's judgment or service thereof. The court may order the landlord to make repairs and correct the conditions that constitute a breach of the landlord's obligations, order the monthly rent to be so limited until the repairs are completed, and award the tenant costs and, if awardable by statute or contract, attorney fees. The court retains jurisdiction for the purpose of ensuring compliance. If the tenant fails to timely pay all rent accrued to the date of trial, however, the court must award possession of the premises to the landlord. Code of Civil Procedure Section 1174.2.

The fact that the tenant continues to live in the premises is not a waiver of the warranty of habitability as a matter of public policy. Knight v. Hallsthammar, 29 C3d 46 (1981). However, a tenant who substantially contributes to the existence of an untenantable condition cannot claim relief for breach of the warranty. Civil Code Section 1941.2.

A somewhat related defense is the "repair and deduct" defense. This defense is available if the tenant paid for repairs himself after giving the landlord a reasonable period of time to do so. The tenant is entitled to deduct these amounts from the rent, and a notice that includes these sums would be overstated. Civil Code Section 1942.

Another affirmative defense is retaliatory eviction, which has both a common law and a statutory basis. Civil Code Section 1942.5. This defense applies when the landlord seeks eviction when the tenant has engaged in legally protected activities. The tenant must be current on rent payments.

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