CACI 4304 Termination for Violation of Terms of Lease/Agreement—Essential Factual Elements

California Civil Jury Instructions CACI

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 defendant];

3.That under the [lease/rental agreement/sublease], [name of defendant] agreed [insert required condition(s) that were not performed];

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 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

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Directions for Use

Include the bracketed references to a subtenancy in the opening paragraph, in element 5, and in the last element 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 decided.

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.

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].)

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.

See CACI No. 4305, Sufficiency 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.

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.” (Hinmansupra, 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 omitted.)

“ ‘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 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 (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)