California Civil Jury Instructions (CACI) (2017)

4306. Termination of Month-to-Month Tenancy—Essential Factual Elements

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4306.Termination of Month-to-Month Tenancy—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 the tenancy has ended. 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 defendant] under a month-to-month [lease/rental agreement/
sublease];
3. That [name of plaintiff] gave [name of defendant] proper [30/60]
days’ written notice that the tenancy was ending; and
4. That [name of defendant] [or subtenant [name of subtenant]] is still
occupying the property.
New August 2007; Revised June 2011, December 2011
Directions for Use
Include the bracketed references to a subtenancy in the opening paragraph and in
element 4 if persons other than the tenant-defendant are in occupancy of the
premises.
If the plaintiff is the landlord or owner, select “owns” in element 1 and “rented”
and either “lease” or “rental agreement” 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
“leases” in element 1 and “subleased” and “sublease” in element 2. (Code Civ.
Proc., § 1161(3).)
In element 3, select the applicable number of days’ notice required by statute.
Thirty days is sufficient for commercial tenancies, residential tenancies of less than
a year’s duration, and certain transfers of the ownership interest to a bona fide
purchaser. For residential tenancies of a year or more’s duration, 60 days’ notice is
generally required. (Civ. Code, §§ 1946, 1946.1(b)–(d).)
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
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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
decided.
Do not give this instruction to terminate a tenancy if the tenant is receiving federal
financial assistance through the Section 8 program. (See Wasatch Property
Management v. Degrate (2005) 35 Cal.4th 1111, 1115 [29 Cal.Rptr.3d 262, 112
P.3d 647]; Civ. Code, § 1954.535 (90 days’ notice required).) Specific grounds for
terminating a federally subsidized low-income housing tenancy are required and
must be set forth in the notice. (See, e.g., 24 C.F.R. § 982.310.)
See CACI No. 4307, Suffıciency and Service of Notice of Termination of Month-to-
Month Tenancy, for an instruction on proper advanced written notice.
Sources and Authority
• Unlawful Detainer Based on Holdover After Expiration of Term. Code of Civil
Procedure section 1161(1).
• Automatic Renewal Absent Notice of Termination on Expiration of Term. Civil
Code section 1946.
• Time and Manner of Giving Notice of Termination. Civil Code section 1946.1.
• Presumption That Term Is Based on Period for Which Rent Is Paid. Civil Code
section 1944.
• Conversion of Unlawful Detainer to Ordinary Civil Action if Possession Not at
Issue. Civil Code section 1952.3(a).
• “ ‘In order that such an action may be maintained the conventional relation of
landlord and tenant must be shown to exist. In other words, the action is limited
to those cases in which the tenant is estopped to deny the landlord’s title.’ ”
(Fredericksen v. McCosker (1956) 143 Cal.App.2d 114, 116 [299 P.2d 908],
internal citations omitted.)
• “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].)
• “The Act provides that as a prerequisite to filing an unlawful detainer action
based on a terminated month-to-month tenancy, the landlord must serve the
tenant with a 30-day written notice of termination.” (Losornio v. Motta (1998)
67 Cal.App.4th 110, 113 [78 Cal.Rptr.2d 799], internal citations omitted.)
• “Proper service on the lessee of a valid . . . notice . . . is an essential
prerequisite to a judgment declaring a lessor’s right to possession under section
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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 . . . notice . . . 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 renter’s
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 . . . 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 . . . notice . . . 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 . . . 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 (10th ed. 2005) Real Property, § 680
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 8-B, Unlawful
Detainer Complaint, ¶ 8:85 (The Rutter Group)
1 California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.69–8.80
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 5.3, 7.5, 7.11
7 California Real Estate Law and Practice, Ch. 210, Unlawful Detainer, §§ 210.21,
210.27 (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)
23 California Points and Authorities, Ch. 236, Unlawful Detainer, §§ 236.11,
236.40 (Matthew Bender)
Miller & Starr, California Real Estate 3d, § 19:188 (Thomson Reuters)
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