CACI No. 4304. Termination for Violation of Terms of Lease/Agreement - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2023 edition)

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4304.Termination for Violation of Terms of
Lease/Agreement - Essential Factual Elements
[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
perform [a] requirement(s) under [his/her/nonbinary pronoun/its] [lease/
rental agreement/sublease]. 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] agreed [insert required condition(s) that were not
4. That [name of defendant] failed to perform [that/those]
requirement(s) by [insert description of alleged failure to perform];
5. That [name of plaintiff] properly gave [name of defendant] [and
[name of subtenant]] three days’ written notice to [either [describe
action to correct failure to perform] or] vacate the property; [and]
[6. That [name of defendant] did not [describe action to correct failure
to perform]; and]
[7. That [name of plaintiff] properly gave [name of defendant] [and
[name of subtenant]] three days’ written notice to vacate the
property; and]
8. That [name of defendant] [or subtenant [name of subtenant]] is still
occupying the property.
[[Name of defendant]’s failure to perform the requirement(s) of the [lease/
rental agreement/sublease] must not be trivial, but must be a substantial
violation of [an] important obligation(s).]
New August 2007; Revised June 2010, December 2010, June 2011, December 2011,
May 2020, November 2021
Directions for Use
Include the bracketed references to a subtenancy in the opening paragraph, in
element 5, and in element 8 if persons other than the tenant-defendant are in
occupancy of the premises.
If the plaintiff is the landlord or owner, select either “lease” or “rental agreement” in
the opening paragraph and in element 3, “owns” in element 1, and “rented” in
element 2. 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
“sublease” in the opening paragraph and in element 3, “leases” in element 1, and
“subleased” in element 2. (Code Civ. Proc., § 1161(3).)
Defective service may be waived if defendant admits timely 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 receipt.
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 element 5.
If the violation of the condition or covenant involves assignment, sublet, or waste,
or if the breach cannot be cured, the landlord is entitled to possession on service of
a three-day notice to quit; no opportunity to cure by performance is required. (Code
Civ. Proc., § 1161(4); Salton Community Services Dist. v. Southard (1967) 256
Cal.App.2d 526, 529 [64 Cal.Rptr. 246].) In such a case, omit the bracketed
language in element 5 and also omit element 6. If the violation involves nuisance or
illegal activity, give CACI No. 4308, Termination for Nuisance or Unlawful
Use - Essential Factual Elements.
The Tenant Protection Act of 2019 and/or local or federal law may impose
additional requirements for the termination of a rental agreement based on breach of
a condition. (See, e.g., Civ. Code, § 1946.2(a) [“just cause” requirement for
termination of certain residential tenancies], (b) [“just cause” defined].) This
instruction should be modified accordingly if applicable. For example, the Tenant
Protection Act of 2019 requires a separate three-day notice to quit after the initial
three-day notice to cure that is expressed in element 5. (See Civ. Code, § 1946.2(c).)
Element 7 applies only to a just cause eviction under the Tenant Protection Act of
2019, which governs certain residential real property tenancies of specified
durations. (See id., subd. (a) [stating occupancy requirement of 12 months of
continuous tenancy, or, if any tenants have been added to the lease, after all tenants
have lived at the property for a year or if the original tenant has lived there for 24
months or more], subd. (c) [“Before an owner of residential real property issues a
notice to terminate a tenancy for just cause that is a curable lease violation, the
owner shall first give notice of the violation to the tenant with an opportunity to
cure the violation pursuant to paragraph (3) of Section 1161 of the Code of Civil
Procedure. If the violation is not cured within the time period set forth in the notice,
a three-day notice to quit without an opportunity to cure may thereafter be served to
terminate the tenancy”].)
Include the last paragraph if the tenant alleges that the violation was trivial. (See
Boston LLC v. Juarez (2016) 245 Cal.App.4th 75, 81 [199 Cal.Rptr.3d 452].) It is
not settled whether the landlord must prove the violation was substantial or the
tenant must prove triviality as an affirmative defense. (See Superior Motels, Inc. v.
Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1051 [241 Cal.Rptr. 487];
Keating v. Preston (1940) 42 Cal.App.2d 110, 118 [108 P.2d 479].)
See CACI No. 4305, Suffıciency and Service of Notice of Termination for Violation
of Terms of Agreement, for an instruction on proper written notice.
See also CACI No. 312, Substantial Performance.
Sources and Authority
Unlawful Detainer Based on Failure to Perform Conditions. Code of Civil
Procedure section 1161(3), (4).
Tenant Protection Act of 2019. Civil Code section 1946.2.
Dual Notice Requirement for Certain Residential Tenancies. Civil Code section
Conversion of Unlawful Detainer to Ordinary Civil Action If Possession No
Longer at Issue. Civil Code section 1952.3(a).
“[Code of Civil Procedure section 1161(3)] provides, that where the conditions
or covenants of a lease can be performed, a lessee may within three days after
the service of the notice perform them, and so save a forfeiture of his lease. By
performing, the tenant may defeat the landlord’s claim for possession. Where,
however, the covenants cannot be performed, the law recognizes that it would be
an idle and useless ceremony to demand their performance, and so dispenses
with the demand to do so. And this is all that it does dispense with. It does not
dispense with the demand for the possession of the premises. It requires that in
any event. If the covenants can be performed, the notice is in the alternative,
either to perform them or deliver possession. When the covenants are beyond
performance an alternative notice would be useless, and demand for possession
alone is necessary. Bearing in mind that the object of this statute is to speedily
permit a landlord to obtain possession of his premises where the tenant has
violated the covenants of the lease, the only reasonable interpretation of the
statute is, that before bringing suit he shall take that means which should be
most effectual for the purpose of obtaining possession, which is to demand it. If
upon demand the tenant surrenders possession, the necessity for any summary
proceeding is at an end, and by the demand is accomplished what the law
otherwise would accord him under the proceeding.” (Schnittger v. Rose (1903)
139 Cal. 656, 662 [73 P. 449].)
“It is well settled that the notice required under [Code Civ. Proc., § 1161]
subdivisions 2 and 3 (where the condition or covenant assertedly violated is
capable of being performed) must be framed in the alternative, viz., pay the rent
or quit, perform the covenant or quit, and a notice which merely directs the
tenant to quit is insufficient to render such tenant guilty of unlawful detainer
upon his continued possession.” (Hinman v. Wagnon (1959) 172 Cal.App.2d 24,
27 [341 P.2d 749], original italics.)
“Plaintiff argues, however, that he should be allowed to amend his complaint so
as to bring his action under section 1161, subdivision 4. The notice thereunder
required need not be framed in the alternative. However, plaintiff has at no time,
either by his three days’ notice or in any of his pleadings, suggested that
defendant had assigned the lease or sublet the property, or had committed waste
contrary to the conditions or covenants of the lease, or maintained a nuisance on
the premises, or had used the property for an unlawful purpose. Plaintiff had
three opportunities to state a cause of action; if he was of the belief that facts
existed which brought his case under 1161, subdivision 4, it would have been a
simple matter to allege such facts, but this he did not do.” (Hinman,supra, 172
Cal.App.2d at p. 29.)
“The law sensibly recognizes that although every instance of noncompliance
with a contract’s terms constitutes a breach, not every breach justifies treating
the contract as terminated. Following the lead of the Restatements of Contracts,
California courts allow termination only if the breach can be classified as
‘material,’ ‘substantial,’ or ‘total.’ (Superior Motels, Inc., supra, 195
Cal.App.3d at p. 1051, internal citations omitted.)
‘[A] lease may be terminated only for a substantial breach thereof, and not for
a mere technical or trivial violation.’ This materiality limitation even extends to
leases which contain clauses purporting to dispense with the materiality
limitation.” (Boston LLC, supra, 245 Cal.App.4th at p. 81, internal citation
‘Normally the question of whether a breach of an obligation is a material
breach . . . is a question of fact,’ however “if reasonable minds cannot differ
on the issue of materiality, the issue may be resolved as a matter of law.”
(Boston LLC, supra, 245 Cal.App.4th at p. 87.)
“As to the substantiality of the violation, the evidence shows that the violation
was wilful. Therefore, the court will not measure the extent of the violation.”
(Hignell v. Gebala (1949) 90 Cal.App.2d 61, 66 [202 P.2d 378].)
“Where a covenant in a lease has been breached and the breach cannot be cured,
a demand for performance is not a condition precedent to an unlawful detainer
action.” (Salton Community Services Dist.,supra, 256 Cal.App.2d at p. 529.)
“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].)
“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.)
“Given the detailed requirements for payment instructions in section 1161,
subdivision 2, the lack of specific notice requirements concerning return of the
property to the owner in subdivisions 2, 3, and 4 is noteworthy. Rather, these
subdivisions only require the notice to demand ‘possession of the property’
1161, subds. 2 & 3) or ‘possession of the demised premises’ 1161, subd. 4).
Had the Legislature sought to require more detailed instructions in the notice on
how to restore possession of the property to the owner, the particularized
requirements in subdivision 2 shows it knew how to do so. As such, the absence
of any such requirements in the notice appears to be intentional.” (Lee v. Kotyluk
(2021) 59 Cal.App.5th 719, 730 [274 Cal.Rptr.3d 29].)
“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.)
Secondary Sources
12 Witkin, Summary of California Law (11th ed. 2017) Real Property, §§ 753, 759
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.50-8.54
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 5.2, 6.38-6.49
Friedman et al., California Practice Guide: Landlord-Tenant, Ch.12-G, Termination
of Section 8 Tenancies, 12:200 et seq. (The Rutter Group)
Friedman et al., California Practice Guide: Landlord-Tenant, Ch.7-C, Bases For
Terminating Tenancy, 7:93 et seq. (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 200, Termination: Causes and
Procedures, § 200.21 (Matthew Bender)
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.23, 210.24 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 5,
Unlawful Detainer, 5.07
29 California Forms of Pleading and Practice, Ch. 332, Landlord and Tenant: The
Tenancy, § 332.28 (Matthew Bender)
29 California Forms of Pleading and Practice, Ch. 333, Landlord and Tenant:
Eviction Actions, § 333.10 (Matthew Bender)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, §§ 236.11, 236.20
(Matthew Bender)
Miller & Starr California Real Estate 4th, § 34.182 (Thomson Reuters)

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