Defenses to unlawful detainer actions

Posted by Marc D. Whitham - June 9, 2011 - Eviction Defense, Tenants Rights Information - 1 Comment

Do I have a defense to the unlawful detainer filed against me?

I have compiled here a small summary of some of the most common defenses to an unlawful detainer action, more commonly known as an eviction, for tenants residing in California. Nothing in this post is meant to be legal advice for any specific case. Nor is it an all-inclusive list. There are many other reasons why a tenant may prevail in an unlawful detainer that are not included here. If after reading this post, you believe that you have a defense to the unlawful detainer, then please give us a call, in order to schedule a consultation.

In order to know whether or not you have a defense to your unlawful detainer that will hold up in court, it is important to understand what the plaintiff must prove to the court in order to win the case.

First, the plaintiff must be able to show that he is the owner of the property, or that the person testifying in court is acting with the authority of the owner of the property. Usually the court will accept the plaintiff’s testimony on this point without asking for any further proof, and in most cases the court will not allow a tenant to argue about whether the plaintiff is the owner of the property.
This is especially true if the plaintiff has a written rental agreement signed by the defendant.

There are cases, however, where the person, or property manager attempting to evict is not the actual owner of the property and does not have any contract or relationship with the tenant. If this describes your situation, then you may have a defense.

Second, the plaintiff must show that there is a landlord/tenant relationship between the parties. If you have signed a written rental agreement with the plaintiff, or if the plaintiff has ever accepted a rent payment from you on behalf of the landlord, then this will usually not be a hard point for the plaintiff to establish.
If the party that has filed the unlawful detainer is not your landlord or an agent acting on behalf of your landlord, then they don’t have the right to evict you (the legal term is that the plaintiff lacks standing).  If you are a subtenant, then the tenant you rented from, rather than the landlord, will have standing to bring an eviction.

If the plaintiff can establish that he or she is the landlord of the defendant, then the next thing the court will want to know is why the case was filed. The information explaining why the plaintiff wants to evict the tenant must be contained in a written notice. There are several different kind of notices that may allow a plaintiff to bring an unlawful detainer,
but the most common are notices demanding the payment of rent and notices to terminate a tenancy. Whatever the notice is, it must be attached to the complaint, it must be dated, it must accurately describe the property where the tenant lives, and it must give the tenant a set period of time to act.

If the reason for the eviction is for nonpayment of rent, then the notice must give the tenant at least three days to pay the rent. The first day is the date following the date the notice was given to the defendant. Some rental agreements require that the landlord give more than three days to pay the rent when notice is given. If that is your case, then the court should enforce that rule under the contract, but any attempt to shorten the period to less than three days is invalid under California law.
If the notice is a notice to terminate, then it must give a minimum of thirty days under normal circumstances. If the tenant has lived at the residence for more than one year, then it must give at least 60 days for the tenant to move. If you live in the City of San Diego at the same residence for more than 2 years, then the notice must explain why the landlord wants to evict you. For more information about the San Diego Tenants’ Right to Know Ordinance click here.

Some of the most common reasons why a notice may be defective are listed below:,

  • The notice includes more rent than is actually owed.
  • The notice does not say where the rent can be paid and who will accept it.
  • The notice asks for other money that is not rent, like a late fee, or money for repairs to the property.
  • The notice does not have a date
  • The notice has the wrong property address
  • The notice does not say that you can save your tenancy by paying the amount demanded.

If the unlawful detainer case you are dealing with falls into any of the categories described above, then do not hesitate to give us a call to see how we can help you succeed in asserting your defense.


This list is not meant to be all inclusive, and there may be other reasons why the notice would not hold up in court. If the notice you have received has any of these problems, contact us to schedule your consultation. Even if this list does not describe the notice you received, you may still have other good defenses. If you suspect that you do, send us a message describing why you think the notice is wrong.

Even when the landlord’s notice has all of the correct language and conforms to the law, the plaintiff must still explain to the court how the notice was served on the defendant. If the notice was given to the defendant, then that is sufficient. Even if the notice was not personally handed to the tenant, the landlord or property manager can still meet the legal requirements for service by posting a copy of the notice on the property and sending a copy through the mail, or by leaving a copy of the notice with an adult residing in the property.

The Plaintiff must then wait for the time given in the notice to expire. If the notice is a three day notice demanding the payment of rent, then the plaintiff cannot file his or her complaint until those three days have passed. Note that it is the first day after the notice is given which starts the counting period. The same rule applies to thirty and sixty day notices. The time permitted under the notice must expire before the landlord attempts to bring the eviction, and the first day of counting does not start until after the day when the notice is served.

The final requirement that the landlord must demonstrate to prevail in court is that the defendant is still living in the property. If the tenant has moved out, then he or she can file an application to the court requesting that the case be changed from an unlawful detainer into a normal civil case. The plaintiff can still go forward with the case if the complaint is asking the court to award money, but it is no longer considered an unlawful detainer, and the defendant can then bring a countersuit against the plaintiff when required.

 NOTICE:  Simply because a tenant moves out of the property, the eviction case does not go away!  It is the tenants responsibility to make the court aware that he or she has left the rental.  Even after the case is converted from an eviction to a normal law suit, it is important to follow up with the court.  In many cases tenants have good cause to file a counter suit.

If you believe that you have good cause to file a counter suit against your landlord, you should speak with an attorney immediately after you inform the court you have vacated the property. 

If the plaintiff cannot show any of the elements mentioned above, then the defendant should ask the court to enter judgment in his or her favor because the plaintiff has failed to carry the prima facie burden that is required. Again, this is not meant to be a complete list of all the ways a defendant can prevail in court,
nor does it mean you should attempt to defend yourself. Even if a landlord has a weak case, more often than not they pay good lawyers.  Even you feel you have a strong defense, eviction cases are not small claims court, you can, and should be represented.

Before you attempt to defend yourself in an unlawful detainer case, Call today to speak directly with a lawyer.

619-573-9582