California Civil Jury Instructions (CACI) (2017)

4308. Termination for Nuisance or Unlawful Use—Essential Factual Elements (Code Civ. Proc, § 1161(4))

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4308.Termination for Nuisance or Unlawful Use—Essential
Factual Elements (Code Civ. Proc, § 1161(4))
[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 [created a
nuisance on the property/ [or] used the property for an illegal purpose].
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];
3. That [name of defendant] [include one or both of the following:]
3. created a nuisance on the property by [specify conduct
constituting nuisance];
3. [or]
3. used the property for an illegal purpose by [specify illegal
activity];
4. That [name of plaintiff] properly gave [name of defendant] [and
[name of subtenant]] three days’ written notice to vacate the
property; and
5. That [name of defendant] [or subtenant [name of subtenant]] is still
occupying the property.
New December 2010; Revised June 2011, December 2011
Directions for Use
Include the bracketed references to a subtenancy in the opening paragraph and in
elements 4 and 5 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” in
element 2.
If the plaintiff is a tenant seeking to recover possession from a subtenant, include
the bracketed language on subtenancy in the opening paragraph and in element 4,
“leases” in element 1, and “subleased” in element 2. (Code Civ. Proc., § 1161(3).)
Certain conduct or statutory violations that constitute or create a rebuttable
presumption of a nuisance are set forth in Code of Civil Procedure section 1161(4).
If applicable, insert the appropriate ground in element 3. (See also Health & Saf.
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Code, § 17922 [adopting various uniform housing and building codes].)
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
decided.
If the lease specifies a time period for notice other than the three-day period,
substitute that time period in element 4.
For nuisance or unlawful use, 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).)
Local or federal law may impose additional requirements for the termination of a
rental agreement based on nuisance or illegal activity. This instruction should be
modified accordingly.
See CACI No. 4309, Suffıciency and Service of Notice of Termination for Nuisance
or Unlawful Use, for an instruction on proper written notice.
See also CACI No. 312, Substantial Performance.
Sources and Authority
• Unlawful Detainer Based on Tenant Conduct. Code of Civil Procedure section
1161(4).
• “Nuisance” Defined. Civil Code section 3479.
• “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 v. Wagnon
(1959) 172 Cal.App.2d 24, 29 [341 P.2d 749].)
• “Proper service on the lessee of a valid three-day notice to pay rent or quit is
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an essential prerequisite to a judgment declaring a lessor’s 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 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 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 (10th ed. 2006) Real Property, §§ 674, 726
1California Landlord-Tenant Practice (Cont.Ed.Bar 2d ed.) §§ 8.55, 8.58, 8.59
1 California Eviction Defense Manual (Cont.Ed.Bar 2d ed.) §§ 6.46, 6.48, 6.49
Friedman et al., California Practice Guide: Landlord-Tenant, Ch. 7-C, Bases For
Terminating Tenancy, ¶ 7:136 et seq. (The Rutter Group)
7 California Real Estate Law and Practice, Ch. 200, Termination of Tenancies,
§ 200.38 (Matthew Bender)
Matthew Bender Practice Guide: California Landlord-Tenant Litigation, Ch. 4,
Termination of Tenancy, 4.23
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
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(Matthew Bender)
Miller & Starr, California Real Estate (3d ed. 2008) Ch. 19, Landlord-Tenant,
§§ 19:200–19.205 (Thomson Reuters)
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