CACI No. 4302. Termination for Failure to Pay Rent - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2023 edition)

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4302.Termination for Failure to Pay Rent - Essential Factual
[Name of plaintiff] claims that [name of defendant] [and [name of
subtenant], a subtenant of [name of defendant],] no longer [has/have] the
right to occupy the property because [name of defendant] has failed to
pay the rent. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of plaintiff] [owns/leases] the property;
2. That [name of plaintiff] [rented/subleased] the property to [name of
3. That under the [lease/rental agreement/sublease], [name of
defendant] was required to pay rent in the amount of $[specify
amount] per [specify period, e.g., month];
4. That [name of plaintiff] properly gave [name of defendant] three
days’ written notice to pay the rent or vacate the property;
5. That as of [date of three-day notice], at least the amount stated in
the three-day notice was due;
6. That [name of defendant] did not pay the amount stated in the
notice within three days after [service/receipt] of the notice; and
7. That [name of defendant] [or subtenant [name of subtenant]] is still
occupying the property.
New August 2007; Revised June 2011, December 2011, December 2013, May 2021
Directions for Use
Modify this instruction as necessary for rent due on a residential tenancy between
March 1, 2020, and June 30, 2021, including, but not limited to, substitution of the
term “fifteen business days” wherever the term “three days” appears in the essential
factual elements. (See COVID-19 Tenant Relief Act, Code Civ. Proc., § 1179.01 et
seq.; Stats. 2021, ch. 2 (Sen. Bill 91), Code Civ. Proc., § 1179.02.)
Include the bracketed references to a subtenancy in the opening paragraph and in
element 7 if persons other than the tenant-defendant are occupying the premises.
If the plaintiff is the landlord or owner, select “owns” in element 1, “rented” in
element 2, and either “lease” or “rental agreement” in element 3. Commercial
documents are usually called “leases” while residential documents are often called
“rental agreements.” Select the term that is used on the written document. If the
plaintiff is a tenant seeking to recover possession from a subtenant, select “leases”
in element 1, “subleased” in element 2, and “sublease” in element 3. (Code Civ.
Proc., § 1161(3).)
Defective service may be waived if defendant admits receipt of notice. (See Valov v.
Tank (1985) 168 Cal.App.3d 867, 876 [214 Cal.Rptr. 546].) However, if the fact of
service is contested, compliance with the statutory requirements must be shown.
(Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425
[123 Cal.Rptr.3d 816].) Therefore, this instruction does not provide an option for the
jury to determine whether or not defective service was waived if there was actual
If a commercial lease requires service by a particular method, actual receipt by the
tenant will not cure the landlord’s failure to comply with the service requirements of
the lease. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc.
(2010) 185 Cal.App.4th 744, 752 [110 Cal.Rptr.3d 833].) Whether the same rule
applies to a residential lease that specifies a method of service has not yet been
If the lease specifies a time period for notice other than the three-day period,
substitute that time period in elements 4, 5, and 6, provided that it is not less than
three days.
There is a conflict in the case law with respect to when the three-day period begins
if substituted service is used. Compare Davidson v. Quinn (1982) 138 Cal.App.3d
Supp. 9, 14 [188 Cal.Rptr. 421] [tenant must be given three days to pay, so period
does not begin until actual notice is received] with Walters v. Meyers (1990) 226
Cal.App.3d Supp. 15, 19-20 [277 Cal.Rptr. 316] [notice is effective when posted
and mailed]. This conflict is accounted for in element 6.
See CACI No. 4303, Suffıciency and Service of Notice of Termination for Failure to
Pay Rent, for an instruction regarding proper notice.
Sources and Authority
Unlawful Detainer for Tenant’s Default in Rent Payments. Code of Civil
Procedure section 1161(2).
COVID-19 Tenant Relief Act. Code of Civil Procedure section 1179.01 et seq.
Senate Bill 91 (Stats. 2021, ch. 2). Code of Civil Procedure section 1179.02 et
Tenant Protection Act of 2019. Civil Code section 1946.2.
Conversion to Civil Action if Possession No Longer at Issue. Civil Code section
“[M]ere failure of a tenant to quit the premises during the three-day notice
period does not necessarily justify an unlawful detainer action. If a tenant
vacates the premises and surrenders possession to the landlord prior to the
complaint being filed, then no action for unlawful detainer will lie even though
the premises were not surrendered during the notice period. This is true because
the purpose of an unlawful detainer action is to recover possession of the
premises for the landlord. Since an action in unlawful detainer involves a
forfeiture of the tenant’s right to possession, one of the matters that must be
pleaded and proved for unlawful detainer is that the tenant remains in possession
of the premises. Obviously this cannot be established where the tenant has
surrendered the premises to landlord prior to the filing of the complaint. In such
a situation the landlord’s remedy is an action for damages and rent.” (Briggs v.
Electronic Memories & Magnetics Corp. (1975) 53 Cal.App.3d 900, 905-906
[126 Cal.Rptr. 34], footnote and internal citations omitted.)
“Proper service on the lessee of a valid three-day notice to pay rent or quit is an
essential prerequisite to a judgment declaring a lessors right to possession under
section 1161, subdivision 2. A lessor must allege and prove proper service of the
requisite notice. Absent evidence the requisite notice was properly served
pursuant to section 1162, no judgment for possession can be obtained.”
(Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 513 [65 Cal.Rptr.2d
457], internal citations omitted.)
“Section 1162 does not authorize service of a three-day notice to pay rent or quit
by mail delivery alone, certified or otherwise. It provides for service by: personal
delivery; leaving a copy with a person of suitable age and discretion at the
renters residence or usual place of business and sending a copy through the
mail to the tenant’s residence; or posting and delivery of a copy to a person
there residing, if one can be found, and sending a copy through the mail. Strict
compliance with the statute is required.” (Liebovich, supra, 56 Cal.App.4th at p.
516, original italics, internal citations omitted.)
“In the cases discussed . . . , a finding of proper service turned on a party’s
acknowledgment or admission the notice in question was in fact received. In the
present case, defendant denied, in his answer and at trial, that he had ever
received the three-day notice. Because there was no admission of receipt in this
case, service by certified mail did not establish or amount to personal delivery.
Further, there was no evidence of compliance with any of the three methods of
service of a three-day notice to pay rent or quit provided in [Code of Civil
Procedure] section 1162. Therefore, the judgment must be reversed.” (Liebovich,
supra, 56 Cal.App.4th at p. 518.)
“[Code of Civil Procedure section 1162 specifies] three ways in which service of
the three-day notice may be effected on a residential tenant: . . . . As explained
in Liebovich, supra, . . . , ‘[w]hen the fact of service is contested, compliance
with one of these methods must be shown or the judgment must be reversed.’
(Palm Property Investments, LLC, supra, 194 Cal.App.4th at p. 1425.)
“If the tenant gives up possession of the property after the commencement of an
unlawful detainer proceeding, the action becomes an ordinary one for damages.”
(Fish Construction Co. v. Moselle Coach Works, Inc. (1983) 148 Cal.App.3d
654, 658 [196 Cal.Rptr. 174].)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 753, 756,
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.35-8.45
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 5.2, 6.17-6.37
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 5-G, Eviction
Controls, ¶¶ 5:224.3, 5:277.1 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 7-C, Bases For
Terminating Tenancy, 7:96 (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.22 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.07
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.10 (Matthew Bender)
Miller & Starr, California Real Estate 4th, § 19:200 (Thomson Reuters)

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