Unlawful Detainer Lawsuit

By:  Erik Watkins, Esq.

UNLAWFUL DETAINER ACTIONS (CIV CODE§§ 1940-1954.05 – California)

The Ins & Outs



An unlawful detainer is an action by a landlord against a tenant to recover possession of real property, and is only allowed in situations provided for by statute.  The basis for a landlord to recover property is breach of contract or tortious possession of property.  Actions based upon tortious possession of property may be covered by liability insurance, however, breach of contract actions are not covered (for instance a “use contrary to contract terms” was breach of contract action, therefore not covered under insurance).



The proper venue for an unlawful detainer action is that jurisdiction wherein the property lies.



The basis for an owner or landlord to file an unlawful detainer lawsuit lies in any of the following situations and may be commenced against a tenant who remains in possession after:

  1. Expiration of the term or termination of the tenancy;

  2. A default in payment of rent and service of proper notice to quit;

  3. A breach of a covenant or condition contained in the lease;

  4. Execution of an assignment or sublease contrary to the lease provisions;

  5. The commission or maintenance of waste or nuisance on the premises;

  6. Holdover from an involuntary sale (foreclosure); or

  7. Tenant gives written notice to terminate the lease and remains in possession of the property without landlord’s consent.



An unlawful detainer action to recover possession of real property must follow the statutory requirements beginning with notice.


A landlord must provide a tenant a three-day period to cure the default prior to filing an unlawful detainer.  Civ Code §1161(2).  The unlawful detainer lawsuit shall not be filed until after the expiration of the three-day period.  Where the notice is pursuant to the non-payment of rent, if the tenant pays the amount in arrears, the landlord may not commence an unlawful detainer based upon that notice, a new notice must be given.


Timeline #1:

How to count the three-day’s notice period (CCP§1161(2)):  The day of service does not count.  Weekend days and holidays do not count.  For example:  Therefore, the three-day period for a notice served on a Wednesday, May 20th, (with Memorial Day holiday being the following Monday) does not expire until end of Tuesday, May 26th.  The unlawful detainer complaint is not properly filed until Wednesday, May 27th.  An unlawful detainer complaint filed Tuesday May 26th is premature and should be dismissed.  In this example scenario, the three-day period is:  (day 1) Thursday May 21, (day 2) Friday May 22, and (day 3) Tuesday May 26.


The landlord must allege and prove the property service of the notice to quit.  A complaint that fails to allege the required notice and the nature of the alleged breach, fails to state a cause of action in unlawful detainer.  The elements that must be alleged in the complaint are set forth in CCP§1166.  In most cases, all notices and the lease must be attached to the complaint.


A person who is in possession at the time the action is filed, must be served with a notice of the right to claim possession.  Proper service of this form, Judicial Counsel Form CP10.5, allows the claimant to obtain a writ of possession against all persons served with this notice.  This notice shall be served at the time the summons and complaint are served.  An alternative to personal service of the summons and complaint is to obtain an order permitting service pursuant to CCP§415.45.


Timeline #2:

A person in possession who claims a prejudgment right to possession must file the claim with the court within 10-days’ of being served with the summons and complaint.  Upon the filing of the claim, the person must be added to the complaint as a named defendant and then has 5-days to respond to the complaint.  CCP§1174.25.


Timeline #3:

A tenant has 5 days to file an answer to the complaint in an unlawful detainer action.  Civ Code §1952.3(b). 


If a tenant relinquishes possession after receiving notice, but before trial or judgment, a landlord cannot continue to trial in the unlawful detainer action, and simply must continue a general civil breach of contract action.  The tenant must still file an answer within 5-days of being served, or the landlord can still take the tenant’s default (even if the tenant relinquishes possession).


Upon the failure of a tenant to answer the unlawful detainer complaint within 5-days of service, the clerk may enter a default judgment upon written application of the landlord, and if requested, judgment can order an immediate restitution of the premises.  A writ of execution can be issued immediately with a subsequent application by the plaintiff for a judgment for other relief requested in the complaint, including costs.  CCP§1169.


Timeline #4:

Alternatively, when a tenant appears in the case, trial must be set within 20-days after a request for a trial date, unless the parties agree to continue the matter to a later date.  CCP§1170.5.


Generally, an unlawful detainer action can only be initiated by a landlord against a tenant.  This process differs from that of ejectment and quiet title.  However, the statute does allow for an unlawful detainer action filed by a sublessor to a sublessee CCP§1161(3), or an owner against an employee, agent, or licensee who occupies the owner’s property (such as a resident manager) Civ Code §1161(1).


All persons in possession must be named in the complaint. CCP§§367, 1162, & 1165.  An unlawful detainer judgment is not binding on an adult who is in possession prior to commencement of the action and who is not named in the complaint.  CCP§715.020(d).  Statute required only that the complaint name the tenant and subtenant in actual occupation, however, an unlawful detainer judgment may be enforceable against third parties in possession of the property and unknown and not consented to by the landlord.  Arrieta v. Mahon (1982) 31 Cal.3d 381, 392.


A tenant, when responding to an unlawful detainer action can only assert defenses directly related to the possession of the property.  A tenant cannot counterclaim in an unlawful detainer action, they must do it in general civil court.  Common tenant defenses that are allowed are:  claims that tenant is not in default; claims that landlord refused timely payment of rent in bad faith; claims that landlord waived any breach; the tenant substantially complied with the terms of the lease; claims of retaliatory eviction; discrimination; breach of warranty of habitability; that the complaint was filed prior to the completion of the notice period (whether 3-days’ or 30-days’ whichever is applicable in the situation); claims that venue is not proper; certain claims about oral leases; claims entitlement to possession after a foreclosure for statutory period; claims of statute of limitations; or claims that the relationship is not landlord-tenant (therefore not under the jurisdiction of the court to order eviction based upon an unlawful detainer action).

Alternate UD Situations:

Often times when a property is foreclosed upon, the person remaining in possession refuses to leave the property.  An unlawful detainer action is the proper action to evict the person, and the caption of the complaint must include “Action based on Code of Civil Procedure Section 1161a.”


If the person living in the property is a tenant under a lease agreement, the purchaser of the property may treat the tenant as a tenant at sufferance (holdover tenant), and follow the applicable eviction procedures.  If the purchaser accepts rent from the tenant, the tenant then is classified as a periodic month-to-month tenant, and tenancy can be terminated on a 30-day notice.


If the property foreclosed is a rental home, and the person remaining in possession is a tenant, CA law requires a notice to quit for a period at least as long as the period of the tenancy (week, month, etc.), but no less than 30-days’ before unlawful detainer proceedings can be commenced.  There are additional tenant protections that are set to expire December 31, 2019, in which a tenant under a written lease must be given 90-days’ notice prior to commencement of any unlawful detainer proceedings.  There are some narrow exceptions to the 90-day period referenced above, see CCP§1161 et seq.

If you are an owner or landlord and have a situation where possession of property is desired, contact our knowledgeable attorneys to assess your particular situation and advise on what steps should be taken.


Nothing in this article should be relied upon as legal advice, construed as providing legal advice or creating an attorney-client relationship.  


Zahbihi & Watkins Law Firm, APC is the premier boutique business law firm in the Sacramento Valley region of California and specializes in business transactions and litigation.  Please contact Zahbihi & Watkins Law Firm, APC if you would like to discuss your specific situation.