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

New December 2010; Revised June 2011, December 2011, May 2020, November 2020

Nakase Wade | California Business Lawyers & Corporate Lawyers

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).)

Include the optional last paragraph defining a nuisance if there is a factual dispute and the jury will determine whether the defendant’s conduct constituted a nuisance. Omit any bracketed definitional options that are not at issue in the case. For additional authorities on nuisance, see the Sources and Authority to CACI No. 2020, Public Nuisance—Essential Factual Elements, and CACI No. 2021, Private Nuisance—Essential Factual Elements. 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. 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).)

The Tenant Protection Act of 2019, local law, and/or federal law may impose additional requirements for the termination of a rental agreement based on nuisance or illegal activity. (See Civ. Code, § 1946.2(a) [“just cause” requirement for termination of certain residential tenancies], (b) [“just cause” defined], (b)(1)(C) [nuisance is “just cause”], (b)(1)(I) [unlawful purpose is “just cause”].) For example, if the property in question is subject to a local rent control or rent stabilization ordinance, the ordinance may provide further definitions or conditions under which a landlord has just cause to evict a tenant for nuisance or unlawful use of the property. This instruction should be modified accordingly if applicable.

See CACI No. 4309, Sufficiency 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.

•Unlawful Detainer Based on Tenant Conduct. Code of Civil Procedure section 1161(4).

•Tenant Protection Act of 2019. Civil Code section 1946.2.

•“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 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.)