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Traps In A Commercial Unlawful Detainer Case

By Mark B. Wilson, P.C.

Summary of Unlawful Detainer

Unlawful detainer is the primary method landlords use to evict tenants for nonpayment of rent or other material breaches of a lease. After criminal cases, unlawful detainer actions get priority. Cross-complaints (and affirmative defenses unrelated to the issue of possession) are not permitted. While parties can conduct discovery, they typically do not have the luxury of propounding detailed written discovery requests or taking multiple depositions because unlawful detainer actions typically get tried within a few months of filing. Under the California Rules of Court, the goal is to set these cases for trial within 30 days of filing.

When a landlord proceeds by way of unlawful detainer (versus a traditional breach of contract claim or other theory), the landlord cannot pursue “damages.” Instead, the landlord can pursue its right to possession of the property and incidental damages resulting from the tenant’s unlawful detention. If a landlord wants to pursue a claim for damages unrelated to the unlawful detention ( e.g., property damage the tenant causes), the landlord must file a separate lawsuit.

Not All Notices to Terminate Are Created Equally

Many practitioners believe that before filing an unlawful detainer action, the landlord must serve a “three day notice.” While notice is required, many commercial leases provide various notice requirements, depending on the tenant’s breach. If the landlord provides insufficient notice, it will lose the case. Accordingly, it is critical for attorneys to read the lease carefully and determine how much notice to provide the tenant for the various breaches at issue ( i.e., three days for nonpayment of rent, ten days for failing to maintain the property, and 20 days for failing to provide proof of insurance). When multiple breaches are involved, serve a separate notice for each breach and stagger service so they expire on the same date.

The federal and state Fair Debt Collection Practices Acts have provisions which might subject attorneys to liability for serving notices to tenants. Avoid this problem by preparing the notice for the landlord (on its letterhead) and have the landlord sign and serve the notice. Finally, be sure to comply with Code of Civil Procedure section 1161 in drafting the notice. There are a number of items the notice must include, and if they are missing the notice will be deemed defective, resulting in a loss at trial.

Accepting Rent After Expiration of the Notice Is Very Risky

Generally speaking, if a landlord accepts rent from a tenant after expiration of a notice to pay or quit, the landlord waives the tenant’s breach and cannot pursue an unlawful detainer action. However, if the lease states that acceptance of rent (after expiration of a notice) will not result in a waiver or if the landlord provides the tenant notice of the right to accept rent despite expiration of a notice to pay or quit, the landlord can probably accept the rent. Attorneys need to be careful and ensure their clients do not accept rent unless the landlord has complied with the notice provisions on this issue. Otherwise, the landlord will lose the unlawful detainer trial.

A Mistake in Service of Process Can Result in a Lengthy Delay in Eviction and/or Losing the Case

Tenants who know an unlawful detainer proceeding is on its way often take steps to avoid service of the summons and complaint. Attorneys should do everything possible to ensure that the tenant is personally served with the summons and complaint. Otherwise, a tenant might file a motion to quash service of the summons and complaint. If the court denies the motion, then the tenant can seek appellate review. This results in a stay of the unlawful detainer action until the appellate court issues a ruling. Such a stay can be disastrous for a landlord who is owed a large sum of money. Worse, if the appellate court denies the tenant’s writ, the tenant can seek Supreme Court review which results in further delay.

Watch Out for Damaging Admissions in the Lease

When a landlord pursues eviction for reasons other than nonpayment of rent, it is critical that the attorney check the lease for admissions which might prove devastating at trial. For instance, if a tenant is not maintaining the property to the landlord’s satisfaction, look for any statements in the lease about the condition of the property when the tenant took possession. Here’s why. Evidence Code section 622 states in pertinent part as follows:

“[t]he facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest. . .”

The California Court of Appeal held that this section means exactly what it says. If parties sign an agreement which sets forth a fact at issue in a dispute, they are barred from contesting that fact, even if the fact stated in the agreement is false. Plaza Freeway Ltd. Partnership v. First Mountain Bank (2000) 81 Cal.App.4th 616.

Trial – Keep It Simple

Most of the time, unlawful detainer trials can be presented in a day or two, and the landlord’s attorney is well-advised to follow this tradition. Have the client: (a) authenticate the lease; (b) describe the breach ( i.e., nonpayment of rent); and (c) testify as to service of the notice of the breach and the tenant’s failure to cure. Of course, the landlord will have to prove up any amount of rent in dispute and address any unusual affirmative defenses. Nevertheless, given the summary nature of an unlawful detainer action, judges expect lawyers to move the case along quickly.

Ejectment – An Alternative Remedy

Sometimes, unlawful detainer is not the best remedy. For instance, if a tenant sues a landlord and, while the litigation is pending, the tenant breaches the lease, it might be more cost effective for the landlord to file a cross-complaint in the pending action for ejectment. This common law cause of action does not require compliance with the onerous unlawful detainer rules and it does not have the same limitations.

An attorney’s first unlawful detainer action is the scariest but, with careful attention to the rules, attorneys will discover that unlawful detainer actions are not terribly different from any other litigation matter.

This article first appeared in the OCTLA Gavel, Winter 2013.