California Court of Appeal Answers Two Important Questions Relating to Unlawful Detainer Actions

In Lee v. Kotyluk, decided January 7, 2021, the California Court of Appeal, Fourth District, resolved the following two legal issues relating to unlawful detainer (eviction) actions:

First, the court considered whether a property owner can file an unlawful detainer action under California Code of Civil Procedure Section 1161, subdivision (3), based on a notice served by its predecessor in interest. The Court of Appeal concluded the answer is yes. Nothing in the text of the statute prevents a successor owner from doing so. Nor does such a procedure undermine the purpose of the notice requirement Code of Civil Procedure Section 1161, subdivision (3), which is primarily designed to give the tenant an opportunity to cure the breach and retain possession of the property (i.e. a Three-Day Notice to Perform Covenant or Quit). In reaching its decision, the court noted that California Civil Code Section 821 states:

“A person to whom any real property is transferred or devised, upon which rent has been reserved, or to whom any such rent is transferred, is entitled to the same remedies for recovery of rent, for non-performance of any of the terms of the lease, or for any waste or cause of forfeiture, as his grantor or devisor might have had.”

Second, the court considered whether a notice under Code of Civil Procedure Section 1161, subdivision (3), must identify the person to whom the tenant can turn over possession of the property if the tenant chooses to quit. The court concluded this is not required by the statute. Based on the court’s reading of the statute, the court reasoned that the Legislature purposefully chose not to include such a requirement. Subdivision (2) of Code of Civil Procedure Section 1161 relating to notices to pay rent or quit requires a notice to contain very detailed instructions as to how a tenant can pay past due rent. In comparison, nothing in Code of Civil Procedure Section 1161 requires a notice to contain any specific information as to how a tenant can restore possession of the property to the owner. This contrast suggests the Legislature purposely chose not to require that a notice contain such information. Given the cardinal rule that courts should not add provisions to a statute, the court decline to read any such general requirement into section 1161, subdivision (3). 

The law firm of Wallace, Richardson, Sontag & Le, LLP represents landlords, property management companies, institutional and private lenders, employers and insurance companies throughout the State of California in real estate, business and employment litigation. The information provided herein is for general interest only and should not be relied upon or construed as legal advice.