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

California Civil Jury Instructions CACI

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.

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).) The Tenant Protection Act of 2019 may impose additional requirements for the termination of a residential tenancy. (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.

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.

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, Sufficiency 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.

Tenant Protection Act of 2019. Civil Code section 1946.2.

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 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 (11th ed. 2017) Real Property, § 707 et seq.
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. 200, Termination: Causes and Procedures, § 200.21 (Matthew Bender)
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. 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, 236.40 (Matthew Bender)
Miller & Starr California Real Estate 4th, § 34:147 (Thomson Reuters)