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2011 CALIFORNIA

PROPERTY MANAGER'SUNLAWFUL DETAINER

HANDBOOK

G. EMMETT RAITT, JR., ESQ.HEWITT WOLENSKY LLP

4041 MacArthur Blvd., Suite 300Newport Beach, California 92660-2511

(949) 783-5050(949) 854-8380 (Direct Line)

FAX (949) 783-5051www.hewittwolensky.com

[email protected]

i2011 California Property Manager’s Unlawful Detainer Handbook©2011 Hewitt Wolensky LLP

TABLE OF CONTENTS

ABOUT THE FIRM

1 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2 FUNDAMENTAL DUTIES OF THE PROPERTY MANAGER . . . . . . . . . . . . . . 2

3 MONETARY DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

4 NON-MONETARY DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5 HOLDOVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

6 WHAT SHOULD THE PROPERTY MANAGER DO WHEN A TENANT GOESBAD? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

7 NOTICE TO PAY RENT OR QUIT [FORMS, p. ] . . . . . . . . . . . . . . . . . . . . . . . 5

8 NOTICE TO PERFORM COVENANT OR QUIT [FORMS, p. ] . . . . . . . . . . . . . 8

9 SERVICE OF NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

10 TENANT PAYS! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

11 TENANT VACATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

12 TENANT FAILS TO PAY OR VACATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

13 UNLAWFUL DETAINER ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

14 SERVICE OF THE UNLAWFUL DETAINER COMPLAINT . . . . . . . . . . . . . . 13

TENANT'S RESPONSE

15 NO RESPONSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

16 SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

17 MOTION TO QUASH AND OTHER MOTIONS . . . . . . . . . . . . . . . . . . . . . . . . 15

18 ANSWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

20 ENFORCEMENT OF JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

21 DISPOSING OF THE TENANT'S PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . 18

22 DISPOSITION OF TENANT'S SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . 19

23 BANKRUPTCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

UNLAWFUL DETAINER FACT SHEET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

UNLAWFUL DETAINER STATUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ii2011 California Property Manager’s Unlawful Detainer Handbook©2011 Hewitt Wolensky LLP

FORM LETTER - NONPAYMENT OF RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

FORM LETTER UNDERPAYMENT OF RENT DEMANDED IN NOTICE . . . . . . . . . 28

FORM LETTER -- ABANDONMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

NOTICE OF NSF CHECK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

NOTICE TO PAY RENT OR QUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

NOTICE TO PERFORM COVENANT OR QUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

NOTICE OF BELIEF OF ABANDONMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

NOTICE OF TERMINATION OF TENANCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

NOTICE OF RIGHT TO RECLAIM ABANDONED PERSONAL PROPERTY . . . . . . 39

CONTINUED POSSESSION AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

DEFERRED RENTAL AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

ASSIGNMENT OF LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

CONSENT TO SUBLEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

LANDLORD'S SUBORDINATION AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

PROMISSORY NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

TIME LINES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

12011 California Property Manager’s Unlawful Detainer Handbook©2011 Hewitt Wolensky LLP

ABOUT THE FIRM

Hewitt Wolensky LLP offers trial-tested experience, full-spectrum case managementand high-level legal services at reasonable prices. The partnership was formed in 2009to provide first-rate legal talent while leveraging the agility and cost-efficiencies of aboutique firm. Deep with large firm experience, our team can respond quickly to clientneeds and provide sophisticated legal services on a personal level.

Our clients include some of the nation’s premiere businesses, including Fortune 100and Fortune 500 companies in entertainment, real estate, insurance and the medicaland automotive industries. Specialties include product liability and commercial litigation,regulatory compliance and product recall counseling, mass tort litigation and riskmanagement, landlord tenant litigation, employment litigation, real estate and mediaand government relations.

Hewitt Wolensky builds long-term client relationships based on honesty, integrity andexcellence. We offer forward-looking strategies, nuanced legal advice and an energeticteam of attorneys working efficiently to deliver results.

G. Emmett Raitt, Jr.’s practice includes real estate, business, employment andinsurance litigation, with an emphasis on commercial and industrial landlord-tenantmatters, including lease drafting and negotiation, breach of lease actions, unlawfuldetainer (eviction) actions, ADA litigation, and other landlord-tenant disputes, construc-tion litigation, partnership and corporate disputes, real estate broker negligence andbreach of fiduciary duty claims. During his 35 years in practice, Emmett has tried morethan 20 civil jury trials, and hundreds of court trials. He frequently serves as a Tempo-rary Judge in the Orange County Superior Court, and is actively involved in presidingover mediations and arbitrations involving business and real estate disputes. Emmettalso has significant appellate experience, successfully acting as lead appellate counselon numerous cases.

Emmett can be reached at [email protected] and on his direct line [(949)854-8380].


PROPERTY MANAGER'SUNLAWFUL DETAINER

HANDBOOK

1 INTRODUCTION

For many property managers, sending a matter "to legal" is the equivalent oflaunching it into a black hole. You often don't know what will happen, and moreimportantly, you don't know what should happen. This Handbook is designed to answersome of those questions. In particular, this Handbook will attempt to:

1.1 Explain what happens in the legal process when the landlord attempts toreacquire property after a tenant defaults.

1.2 Provide suggestions as to what a property manager should do when a tenant"goes bad"

1.3 Provide suggestions as to what a property manager should not do when atenant "goes bad"

1.4 Provide suggestions as to what information a property manager shouldobtain to improve the chances of collecting against a defaulting tenant.

1.5 Explain how a tenant's bankruptcy affects the process.

This Handbook is intended as a practical summary of the unlawful detainerprocess; however, because each case and each tenant is different, the recommendationsmade may not apply to all cases, and the form documents which accompany it should notbe used without first consulting with your counsel.

2 FUNDAMENTAL DUTIES OF THE PROPERTY MANAGER

2.1 THE PROPERTY MANAGER MUST HAVE A CLEAR UNDERSTANDINGOF THE OWNER'S GOALS AND INTENTIONS WITH REGARD TO THEPROPERTY

(a) Property management is a service business, and the needs anddesires of the owner should be the manager's primary focus.

(b) The failure to communicate and understand those needs is a primarycause of friction between the owner and manager.

(i) If the owner wants tenants aggressively pursued, the managershould know that and follow the desires of the owner.

(ii) If the owner, for business reasons, prefers having non-payingtenants in the center so that it will look busy, that is what themanager should do.

2.2 THE PROPERTY MANAGER MUST COMMUNICATE WITH THE TENANTAND THE OWNER


2.3 THE PROPERTY MANAGER MUST DOCUMENT HIS OR HER FILE

(a) Many problems are created when the tenant claims the tenant wastold something by the manager, and there is nothing in the file torefute it.

(i) If the tenant has requested a modification to the lease, confirmit in writing, and confirm the landlord’s position in writing.

(ii) If you agree to defer payments, confirm it in writing.

(iii) If the tenant claims the tenant was given assurances regardinghis lease which are not contained in the lease and the tenantis wrong, document that in writing.

(b) If the lease has been personally guaranteed, ensure that the guaran-tor is aware of the modification and has consented to it in writing.

(i) Unless the guaranty has been properly drafted, a modificationof the underlying agreement can act to release the guarantor.

(ii) Even if you believe the guaranty is adequate, have the guaran-tor approve any modification to the lease or its terms.

3 MONETARY DEFAULTS

3.1 Occurs when the tenant fails to pay:

(a) Base Rent.

(b) Percentage Rent.

3.2 Recovery of monetary defaults in an unlawful detainer action other than baserent and percentage rent depends upon the existence of an "additional rent"provision in the lease.

(a) If a commercial lease identifies other monetary charges incurredunder the lease as "additional rent", those charges can be included ina Notice to Pay Rent or Quit and recovered in an eviction proceeding.Canal-Randolph Anaheim, Inc. vs. Moore, 78 Cal. App. 3d 477(1978).

(i) Thus CAM charges, late charges, etc., can be recovered in aNotice to Pay Rent or Quit.

(ii) No need to send separate Notice to Perform Covenant or Quit.

(b) However, if there is no provision for "additional rent" under thecommercial lease, any monetary defaults other than base rent andpercentage rent must be contained in a Notice to Perform Covenantor Quit.


3.3 Late Charges.

(a) Generally proper if not construed as a penalty.

(b) In a commercial lease, a late charge clause is valid "...unless the partyseeking to invalidate the provision establishes that the provision wasunreasonable under the circumstances existing at the time thecontract was made." [Civil Code §1671(b)].

(c) In a residential lease, the provision is void "... except that the partiesto such a contract may agree therein upon an amount which shall bepresumed to be the amount of damage sustained by a breach thereof,when, from the nature of the case, it would be impracticable orextremely difficult to fix the actual damage." [Civil Code §1671(d)].

4 NON-MONETARY DEFAULTS

4.1 A non-monetary default is any breach of the lease by a tenant other than thefailure to pay rent.

4.2 Examples:

(a) Violation of the use restriction.

(b) Unauthorized sublease or assignment [FORMS, p. 45].

(i) If the lease is signed after 1983:

a. A lease executed after 1983 can absolutely prohibit anytransfer, with or without consent [Civil Code §1995.230];

b. If the lease does permit sublease or assignment:

i. It can also set forth express standards or condi-tions for such transfer [Civil Code §1995.260],

ii. However, if the lease does not set forth expressstandards or conditions, a "reasonableness"condition will be implied.

iii. The tenant has the burden of proof to establishthat the landlord acted “unreasonably” by deny-ing the transfer [Civil Code §1995.260].

(ii) For the lease is executed prior to 1983, and requires landlordto consent to any sublease or assignment, but gives nostandard, consent may be unreasonably withheld.

(c) The tenant’s failure to maintain or repair the premises.

(d) The tenant’s failure to reimburse the security deposit in the event thelandlord is required to use all or a portion of it during the term of thetenancy.


4.3 Default will not lie for a "trivial" breach.

(a) Example: Unlawful detainer action will not lie against a tenant wholeased property to operate a dry cleaning business but then com-menced a shoe and hand bag repair service [Fragomeno vs.Insurance Company of the West, 207 Cal. App. 822 (1989).

(b) A breach will not be considered "trivial" if the breach is intentional.

5 HOLDOVERS

5.1 Occurs when the tenant stays in possession after the lease term expires.

(a) Many commercial leases contain a holdover provision increasing therent in the event the tenant holds over.

(b) Danger: Accepting rent after the lease term expires creates a newmonth-to-month tenancy and requires notice prior to eviction.

5.2 Although no notice is required prior to beginning the unlawful detainerproceeding if the lease term has expired [Code Civ. Proc. 1161(1)], betterpractice is to send tenant notice so that there is no confusion, and tenantcannot claim the tenant was misled [FORMS, p. 37].

6 WHAT SHOULD THE PROPERTY MANAGER DO WHEN A TENANT GOESBAD?

6.1 CONTACT THE OWNER to find out what it wants you to do.

6.2 Talk to the tenant. Remind them of their obligation under the lease, and findout what the problem is.

6.3 Send letters to the tenant to either:

(a) confirm the payment agreement reached during your discussion; or

(b) to informally demand performance [FORMS, p. 27].

6.4 Send statutory eviction notices only when you are prepared to go forwardwith the eviction.

(a) Tenants will react as they have been trained to react.

(b) If the tenant does not comply with the notice, and you fail to followthrough on it, the tenant will learn that it need not take your noticesseriously – and will convey that to other tenants.

7 NOTICE TO PAY RENT OR QUIT [FORMS, p. 31]

7.1 Statutory time period: three days [Code Civ. Proc. §1161(2)].

7.2 The statutory time period is often modified in a commercial lease to threebusiness days, five days, ten days or even to delete the notice requiremententirely. However, even if the lease provides for no notice, three days


statutory notice must be given before proceeding with an unlawful detaineraction.

7.3 When should the notice be served?

(a) The best time to serve the Notice to Pay Rent or Quit is immediatelyafter rent falls due, or at the latest, immediately after the "graceperiod" expires.

(i) Generally there is no “grace period” in a commercial lease; rentis due when rent is due.

(ii) There is no requirement that the landlord wait until the latecharge accrues before serving the Notice.

(iii) Serving the notice shortly after the rent becomes due is goodtraining for the tenant. It lets the tenant know that the landlordexpects rental payments to be made in full and on time.

(iv) Early service of the Notice Improves the chances of getting therent paid.

(b) Waiting to serve the Notice until the end of the month is never a goodidea.

(i) Daily damages for the unlawful detention of the premises(which are not considered rent) do not begin to accrue untilafter the Notice expires.

(ii) Rather than serving the Notice at the end of the month, thelandlord is better off waiting until early in the following month toserve the Notice so that it covers both months.

(c) The worst time is three or four months after the default. By then thetenant is in such a hole that it is often too late for the tenant torecover.

7.4 What must be included in the notice to pay rent or quit?

(a) The Notice must include:

(i) The amount due, which can include:

a. Estimated unpaid base rent.

b. An estimation of percentage rent, if applicable.

c. Other monetary defaults (i.e., CAM charges, insurancereimbursements, late fees, etc.) if the commercial leasedefines them as “additional rent”.

(ii) One of the following:

a. The name, telephone number, and address of the


person to whom the rent payment must be made, “...and, if payment may be made personally, the usualdays and hours that person will be available to receivethe payment....”; or

b. The number of an account in a financial institution intowhich the rental payment may be made, and the nameand street address of the institution (provided that theinstitution is located within five miles of the rentalproperty); or

c. If an electronic funds transfer procedure has beenpreviously established, that payment may be madepursuant to that procedure. Code of Civil Procedure §1161(2)

(b) Caution: The Notice can only include rent that came due during theprior year. Code of Civil Procedure § 1161(2).

(i) The Notice cannot include unpaid rent or other charges that goback more than a year.

(ii) Although inclusion of unpaid rent going back more than oneyear will not invalidate the Notice, the landlord will not be ableto collect unpaid rent over a year old in the subsequentunlawful detainer action. Levitz Furniture Co. v. WingtipCommunications (2001) 86 Cal. App. 4th 1035, 1040-1041.

(iii) Unpaid rent over a year old can only be collected in a separatecivil suit for breach of lease.

7.5 The Notice should make it clear that the amount demanded is an estimate –even if you are absolutely certain that the amounts stated are accurate.

(a) Understating the rent due is never fatal to an eviction actionCavanaugh vs. High (1960) 182 Cal. App. 2d 714.

(b) Overstating the amount of rent due in a residential lease invalidatesthe Notice and is an absolute defense to the subsequent unlawfuldetainer action. Ernst Enterprises, Inc., vs. Sun Valley Gasoline,Inc., (1983) 139 Cal. App. 3d 355.

(c) For a commercial lease, Code of Civil Procedure §1161.1 providesthat if the amount stated in the notice is clearly identified as anestimate, the eviction can proceed even if the amount claimed is notin fact correct if the amount claimed in the notice was “reasonablyestimated”.

(i) What constitutes a "reasonable estimate"?

a. Subsection 1161.1(e) creates a presumption that anestimate is reasonable if it "...was no more than 20%more or less than the amount determined [upon the trialor other judicial determination] to be due."


b. However, if the rent due is contingent upon informationprimarily within the knowledge of one party to the lease(such as the income generated by the tenant’s businessin order to determine percentage rent) and that informa-tion has not been furnished to, or has not accuratelybeen furnished to, the other party, the court shallconsider that fact in determining the reasonableness ofthe amount of rent claimed in the Notice or tendered bythe tenant.

(ii) Another potential problem exists because §1161.1(a) alsoprovides that: "If (1) upon receipt of such a notice claiming anamount identified by the notice as an estimate, the tenanttenders to the landlord within the time for payment required bythe notice, the amount which the tenant has reasonablyestimated to be due and (2) if at trial it is determined that theamount of rent then due is the amount tendered by the tenantor a lesser amount, the tenant shall be deemed the prevailingparty for all purposes." [Emphasis added.]

a. The landlord thus has a difficult decision to make whena tenant tenders less than the amount demanded in thenotice.

i. In an unlawful detainer action the tenant will befound the prevailing party if it is later determinedat trial that the amount tendered by the tenantwas correct, or exceeded the amount due,without regard to whether the landlord acceptedor rejected the tender,

ii. In that event the tenant will be able to recover itscosts of suit and, under the standard lease,reasonable attorneys fees as well.

b. Therefore, the landlord must always carefully evaluateany tender made by the tenant before going forwardwith the action for unlawful detainer.

8 NOTICE TO PERFORM COVENANT OR QUIT [FORMS, p. 33]

8.1 Statutory time period: three days. Code Civ. Proc. §1161(3).

8.2 Often changed in a commercial lease to five, ten or even 30 calendar daysor business days.

8.3 Applies to non-monetary defaults, as well as to monetary defaults (other thanbase rent) when the lease does not contain an "additional rent" provision.

9 SERVICE OF NOTICES

9.1 How must the Notice be served?

(a) There are three statutory methods of service:


(i) Personal service -- handing the notice to the tenant personally.

(ii) Substituted service -- handing the notice to a responsibleperson at the tenant’s business and then mailing the Notice tothe tenant at the premises. There is no requirement that thelandlord exercise “due diligence” to serve the tenant personallybefore accomplishing substituted service. Nourafchan v.Miner (1985) 169 Cal. App. 3d 746, 751.

(iii) "Nail and mail" -- affixing the Notice to the premises and thenmailing it to the tenant at the premises. "Nail and mail" is onlyappropriate if the landlord has used due diligence to personallyserve or effect a substituted service of the Notice, and thoseefforts have been unsuccessful.

(b) The method of service of notices can be, and often is, changed In acommercial lease.

(i) For example, a commercial lease often permits service ofNotices by certified mail, registered mail, or even regular mail,or other means. All are valid – and must be followed – ifrequired by the terms of the lease.

(ii) It is imperative that the property manager review the leasebefore serving the Notice to make sure that it is served in themanner required by the lease, since the commercial leasetakes priority over the statutory methods. [Culver CenterPartners East #1, L.P. vs. Baja Fresh Westlake Village, Inc.(2010) 185 Cal. App. 4th 744, 749-750.]

(iii) A commercial lease may also authorize service of a Notice bye-mail or other electronic means. However, in order to beenforceable, the lease must specify a particular e-mail addressor fax number at which electronic service may be made.[Culver Center Partners East #1, L.P. vs. Baja FreshWestlake Village, Inc. (2010) 185 Cal. App. 4th 744.]

(c) Tenant's actual receipt of notice is not required, as long as the Noticeis properly served.

(d) Notice should name, and be served on, the tenant along with allknown subtenants and “all other occupants”.

(i) if the tenant is using a fictitious business name, include thefictitious business name in the notice, i.e., “Bob Jones, individ-ually and dba Bob’s Donuts”.

(ii) It is important to review the terms of the lease, and in particularany specially-prepared addenda or amendments, to determinewhether the lease requires that the Notice be served on anyother party.

a. Many franchisors require that Notice also be served ontheir corporate headquarters or corporate counsel in the


event the franchisee defaults on its obligations underthe lease.

b. If the tenant is a subsidiary of a larger organization,Notice may also need to be served on the organization’sprimary business location.

c. Failure to serve all those persons or entities that thelease requires be served with the Notice will invalidatethe Notice.

(e) There is no requirement of "due diligence" before resorting tosubstituted service or "nail and mail". Nourafchan vs. Miner (1985)169 Cal. App. 3d 746, 750.

9.2 When is the Notice effective?

(a) If the Notice is personally served or served by substituted service, theNotice is effective on the day served and expires the first working dayafter the expiration of the Notice period. Lamanna vs. Vognar (1993)17 Cal. App.4th Supp. 4.

(b) Service by "nail and mail" is also effective on the day the Notice ismailed, even if the tenant does not receive it until later. Walters vs.Meyers (1990) 226 Cal. App. 3d Supp. 15, 20.

10 TENANT PAYS!

10.1 Full payment: another problem solved!

10.2 Partial payment.

(a) In a residential lease, the landlord's acceptance of a payment lessthan the amount demanded in the Notice amounts to a waiver of theprior breach and invalidates the Notice to pay rent or quit. Jones v.Maria (1920) 48 Cal. App. 171, 173.

(i) The same result might apply even if the tender was made andaccepted after the unlawful detainer action was commenced.

(ii) The issue, however, was always one of fact -- whether thelandlord intended to waive the tenant's breach by its accep-tance of the deficient rental payment.

(b) In a commercial lease, Code Civ. Proc. §1161.1(b) now provides thatthe landlord may serve the Notice, accept a tender of less than theamount of rent claimed, and still "...commence and pursue an actionunder this chapter to recover the difference between the amountdemanded in that notice and the payment actually received, and thisshall be specified in the complaint.”"

(i) Section 1161.1(c) also allows the landlord to accept a partialpayment after the action is commenced without waiving any ofthe landlord’s rights to proceed with the unlawful detainer


action.

a. At trial, the landlord can amend its complaint to reflectthe partial payment without prior leave of court, withoutthe need for any subsequent pleading by the tenant,and without delaying the unlawful detainer action.

b. However, this applies only if the landlord provides actualnotice to the tenant that acceptance of the partial rentpayment does not constitute a waiver of any rights,including any right the landlord may have to recoverpossession of the premises.

(ii) Thus the property manager should always advise the tenant inwriting when a partial payment is received that it does notconstitute a waiver of landlord's right to proceed with theunlawful detainer action, unless the landlord in fact intends notto proceed with that action.

11 TENANT VACATES

11.1 If the tenant turns in the keys, send a letter confirming the abandonment[FORMS, p. 29, 41].

11.2 If tenant does not turn in the keys, the better practice is to send a Notice ofBelief of Abandonment [FORMS, p. 35].

(a) It is Important to serve the Notice of Belief of Abandonment to all lastknown addresses of the tenant (including the premises), as well as onall those whom the landlord reasonably believes may have an interestin the personal property.

(b) The No Notice of Belief of Abandonment is effective:

(i) 15 days after personal service; or

(ii) 18 days after service by mail.

(c) The Notice of Belief of Abandonment can only be served if:

(i) Landlord believes the tenant has abandoned the premises; and

(ii) Rent has been unpaid for more than 14 days.

12 TENANT FAILS TO PAY OR VACATE

12.1 Contact counsel to prepare unlawful detainer action.

(a) Unless instructed to the contrary by the landlord, do not delay ingetting the action started.

(i) A delay will convince the tenant that you're not serious.

(ii) A delay will adversely affect measure and amount of damages


the landlord may eventually recover.

(b) Information to provide counsel:

(i) The lease and all amendments.

(ii) The Notice and proof of service.

(iii) All correspondence relating to the default(s)

(iv) Ledger/account information.

(v) Tenant identifying information.

a. The following information regarding the tenant greatlyincreases your chances of recovery:

i. Social Security Number.

ii. Driver's license number.

iii. Residence address.

iv. Bank Account information.

b. How do you get it?

i. This information should be part of your pre-leasescreening.

ii. If not, ask the tenant to provide the informationas part of a "tenant census report".

13 UNLAWFUL DETAINER ACTION

13.1 The object of the unlawful detainer action is to recover possession of thepremises. Rent, although important, is considered secondary to possession.

13.2 In addition to possession, the landlord can recover:

(a) Past due rent as stated in the Notice.

(b) Damages:

(i) Daily rental value of the premises from the time the Noticeexpires until time of judgment. This is not considered “rent”,but damages for the unlawful detention of the premises. Adlervs. Elphick (1986) 184 Cal. App. 3d 642, 649; Haig vs.Hogan (1947) 82 Cal. App. 2d 876, 878.

(ii) A statutory penalty of up to $600.00 “if malice is shown” [Codeof Civil Procedure § 1174].

(c) Attorney's fees and costs, if the written lease so provides.


13.3 The complaint must always be verified, that is, signed under oath by thelandlord, its authorized agent or the attorney (if the landlord resides outsideof the county in which the attorney maintains his or her office).

13.4 Interim relief is available:

(a) Appointment of a receiver to take control of the tenant’s property[Code Civ. Proc. §546(6)].

(b) An attachment, which creates a lien against the tenant’s real orpersonal property to assure that the landlord will actually get paid.

14 SERVICE OF THE UNLAWFUL DETAINER COMPLAINT

14.1 The Tenant must respond within 5 days from service.

14.2 Types of service:

(a) Personal service is effective immediately, and the tenant has five daysthereafter to respond.

(b) Substituted service is effective after 10 days. As a result the tenanthas fifteen days from substituted service to respond.

(c) "Nail and mail".

(i) Unlike “nail and mail” of the Notice, “nail and mail” of thesummons and complaint can only be accomplished with courtapproval, and then only if the landlord establishes an inabilityto serve the complaint by any other method.

(ii) Effective 10 days after posting and mailing.

TENANT'S RESPONSE

15 NO RESPONSE

15.1 A Request to Enter Default should be prepared and filed as soon as possibleafter the tenant’s response was due.

(a) May be filed the day after the answer was due.

(b) What can you seek?

(i) Writ of possession only.

a. When only possession is sought, the default can beentered quickly.

b. Requesting rent and damages at the same time slowsthings up.

(ii) Writ of possession, plus accrued rent, damages, attorneys feesand costs.


a. Requesting damages will significantly delay issuance ofthe writ and recovery of possession.

b. Better practice is to seek judgment for possession only,and then seek entry of judgment for monetary damageslater.

16 SETTLEMENT

16.1 Can happen at any time -- even up to the day of the lockout.

16.2 Possible methods:

(a) Continued Possession Agreement [FORMS, p. 29, 41]

(i) For use when the tenant:

a. Has already defaulted;

b. Desires to remain in the premises;

c. The tenant desires to cure the default over time; and

d. The landlord is willing to let the tenant do so.

(ii) Should be prepared and/or reviewed by counsel before using.

(b) Deferred Rental Agreement [FORMS, p. 43]

(i) For use when tenant:

a. Is not in default but can no longer pay his rent;

b. Landlord and tenant both want the tenant to remain inthe premises; and

c. The landlord is willing to accept reduced rent over time.

(ii) Should be prepared and/or reviewed by counsel before using.

(c) Promissory note [FORMS, p. 51]

(i) Dangerous because you cannot evict the tenant based on afailure to pay the amounts called for in the promissory note;your only remedy is a regular civil action.

(ii) Not recommended if the tenant remains in possession of thePremises, because the same result can be obtained usingother methods.


(d) Stipulation for Entry of Judgment

(i) A very effective settlement method, since it provides fro theentry of judgment against the tenant if the tenant fails to makethe payments required under the agreement after the landlordserves the tenant with a Notice of Default under the terms ofthe Stipulation.

(ii) The Stipulation for Entry of Judgment can only be used:

a. If the action is already on file; and

b. The tenant has appeared in the action, or gives thelandlord an answer to be filed, along with the filing fee.

(e) Confession of Judgment is rarely, if ever, used because it requirescounsel for the tenant to make certain representations that counselnormally will not make.

17 MOTION TO QUASH AND OTHER MOTIONS

17.1 Motions are usually filed as a delaying tactic in order to give the tenant moretime to vacate, and are often set for hearing much farther out than they arerequired to be. This requires additional work by counsel for the landlord tokeep the unlawful detainer on track.

17.2 Typical Motions:

(a) Motion to Quash Service of Summons

(i) Attacks service of the complaint on the grounds that:

a. Service was improper because it was served in amanner not authorized by the lease, or not served in amanner required by the lease; or

b. Materially defective form of summons, i.e., a regular 30day civil summons was used rather than the special 5day unlawful detainer summons; or

c. The claim is not in fact for unlawful detainer becausethe underlying notice was improper, i.e., a three daynotice was served when the lease requires a five daynotice.

(ii) Motion must be heard between 3 and 7 days after it is filed.

a. If the motion is denied, the tenant's answer is due 5days after service of notice of ruling.

b. If the motion is granted, the complaint, and possibly theunderlying notice, must be re-served.


(b) Demurrer.

(i) Rarely seen -- even rarer to see it properly used in an unlawfuldetainer action.

(ii) In unlawful detainer action, demurrer only attacks the subjectmatter jurisdiction of court.

a. In a regular civil action, a demurrer normally attacks thevalidity of cause of action.

b. Not so in unlawful detainer work -- that is done throughthe motion to quash.

(c) Motion to strike – generally used when the verification is missing orimproper.

18 ANSWER

18.1 If the tenant answers, he or she can raise any number of affirmativedefenses.

18.2 Proper defenses in a commercial lease action include:

(a) Waiver, change or cancellation of the Notice.

(b) That the Notice was served to discriminate against the tenant inviolation of the Constitution of the United States or California.

(c) The landlord accepted rent from the tenant for a period of time afterthe Notice expired.

18.3 What is not a proper defense to a commercial unlawful detainer action.

(a) Breach of the implied covenant of habitability is not a defense to acommercial detainer complaint. Muro v. Superior Court (1986) 184Cal. App. 3d 1089, 1098.

(b) Failure of the landlord to meet its repair obligations under the lease isnot a defense to a commercial unlawful detainer action. Schulmanv. Vera (1980) 108 Cal. App. 3d 552, 558.

(c) As a result, the tenant cannot defend a commercial unlawful detaineraction by contending that it was not obligated to pay its rent becauseit was required to make repairs that the landlord should have madeunder the lease.

19 PROCEEDING TO TRIAL

19.1 Once the tenant has answered, a Memorandum to Set Case for Trial shouldbe filed immediately.

(a) The Memorandum advises the court that the matter can be set fortrial.


(b) The trial must occur within 20 days of the filing of the Memorandumto Set.

19.2 Discovery can be conducted.

(a) The responding party (whether tenant or landlord) must respond to thediscovery within five days.

(b) Forms for discovery, including form interrogatories specificallydesigned for use in unlawful detainer actions, are provided by theJudicial Council.

(c) However, because discovery will almost always delay the landlord’srecovery of possession, and will rarely, if ever, provide the landlordwith any information the landlord does not already have, is rarelyuseful or necessary.

19.3 The landlord should consider authorizing a Motion for Summary Judgment.

(a) The motion can be heard on 5 days notice on written declaration.

(b) Advantages:

(i) If successful, avoids trial.

(ii) Determines action fast.

(iii) Usually successful.

19.4 Trial.

(a) Trial must occur within 20 days after the Memorandum to Set is filed.

(b) Live testimony is required.

(c) A jury trial is possible unless jury has been waived in the lease.

19.5 Judgment is normally obtained for:

(a) Possession.

(b) Rent.

(c) Damages.

(d) Attorneys fees and costs.

20 ENFORCEMENT OF JUDGMENT

20.1 An Application for Writ of Possession should be submitted to the court, alongwith the Writ of Possession and the Sheriff’s Instructions, as soon as possibleafter judgment is obtained.

20.2 The Writ of Possession is usually issued and served by the Sheriff 5 to 10


days after the default is entered or the judgment obtained.

(a) Once issued, the Writ is then posted on the premises by the Sheriff.

(b) The lock out occurs (or should occur) 5 days later.

20.3 After possession is obtained, the landlord can have judgment entered on thedefault, and/or have a writ of execution and abstract of judgment issued onthe money judgment.

20.4 Caution: If the landlord allows the tenant to remain on the premises afterjudgment is entered and possession returned to the landlord, the landlordmay be liable to anyone injured on the premises, since the landlord then hasan enhanced duty to inspect. Stone vs. Center Trust Retail Properties,Inc. (2008) 163 Cal. App. 4th 608, 613-614.

21 DISPOSING OF THE TENANT'S PROPERTY

21.1 After the landlord obtains possession (whether by eviction, the tenant’sabandonment, or the tenant’s return of the keys), the landlord must inventorythe tenant's personal property, and properly dispose of it.

21.2 If the tenant was evicted by the Sheriff, the eviction notice contained therequired language concerning the disposition of the tenant's personalproperty, and no further notice from the landlord is required.

21.3 If the tenant abandoned the premises prior to the eviction, the landlord mustprepare a Notice of Right to Reclaim Abandoned Personal Property [FORMS,p. ?].

(a) The Notice must be prepared after the landlord recovers possession,and must list the personal property remaining on the premises.

(b) The inventory should be attached to the Notice.

(c) The Notice is effective:

(i) 15 days after personal service; or

(ii) 18 days after service by mail.

(d) If not reclaimed, landlord must dispose of the personal property in themanner required by the code. The proper method depends onwhether the tenancy was residential or commercial

(i) In a residential tenancy:

a. If the value of all of the personal property is under $300,it can be disposed of by the landlord in any manner thelandlord sees fit.

b. If the value of all the personal property is over $300, thepersonal property must be auctioned off and the pro-ceeds delivered to the County after deduction of the


reasonable storage costs and costs of sale.

(ii) In a commercial tenancy:

a. If the value of all of the personal property is under $750or $1 per square foot of the premises, whichever islower, the personal property can be retained by thelandlord or disposed of in any manner it sees fit.

b. If the value of all the personal property is over $750 or$1 per square foot of the premises, whichever is lower,the personal property must be sold at public sale bycompetitive bidding in the manner described in CivilCode §1993.07 and the proceeds delivered to theCounty after deduction of the reasonable storage costsand costs of sale.

22 DISPOSITION OF TENANT'S SECURITY DEPOSIT

22.1 Any security deposit paid by the tenant can only be used “... to remedy tenantdefaults in the payment of rent, to repair damages to the premises caused bythe tenant, or to clean the premises upon termination of the tenancy....” CivilCode §1950.7(c).

22.2 How – and when – the deposit must be returned to the tenant after thelandlord recovers possession of the premises depends on the provisionscontained in the commercial lease, the amount of the deposit, and the usethe landlord intends to make of the security deposit.

(a) If the amount of the security deposit “... equals no more than onemonth's rent plus a deposit amount clearly described as the paymentof the last month's rent...”, and the landlord’s claim against thesecurity deposit is only for a default in the payment of rent (i.e., not forrepairs or cleaning), then the balance of the deposit after deduction ofpast-due rent must be returned to the tenant “... at a time as may bemutually agreed upon by landlord and tenant, but in no event laterthan 30 days from the date the landlord receives possession ofthe premises.” Civil Code §1950.7(c)(1); emphasis added.

(b) If the amount of the security deposit “... exceeds the amount of onemonth's rent plus a deposit amount clearly described as the paymentof the last month's rent...”, and the landlord’s claim against thesecurity deposit is only for a default in the payment of rent (i.e., not forrepairs or cleaning), “... then any remaining portion of the payment ordeposit in excess of an amount equal to one month's rent shall bereturned to the tenant no later than two weeks after the date thelandlord receives possession of the premises, with the remainderto be returned or accounted for within 30 days from the date thelandlord receives possession of the premises. Civil Code§1950.7(c)(2); emphasis added.

(c) Without regard to the amount of the deposit, if the landlord’s claim “...includes amounts reasonably necessary to repair damages to thepremises caused by the tenant or to clean the premises, then any


remaining portion of the payment or deposit shall be returned to thetenant at a time as may be mutually agreed upon by landlord andtenant, but in no event later than 30 days from the date the landlordreceives possession of the premises.” Civil Code §1950.7(c)(3).

22.3 No part of the security deposit may be retained by the landlord to compen-sate the landlord for anticipated future lost rent caused by the tenant’svacation of the premises. 250 L.L.C. vs. PhotoPoint Corp. (2005) 131 Cal.App. 4th 703.

23 BANKRUPTCY

23.1 Despite what the lease says, the filing of bankruptcy does not terminate thelease, nor does it deprive the tenant of right to possession. [11 USC§365(e)].

23.2 Types of bankruptcies:

(a) Chapter 7 is a liquidating bankruptcy that may be invoked by individu-als, corporations or partnerships. The purpose is to appoint a trusteeto collect all of the debtor’s assets, liquidate them, and use theproceeds to pay the claims of unsecured creditors.

(b) Chapter 13 is a wage earner plan available to individuals only. Thepurpose is for the debtor to present a plan to creditors to pay them aportion of their debts over a brief period of time.

(c) Chapter 11 is a reorganization in which the bankrupt intends toemerge with its debts rearranged and a new business plan. It isavailable to individuals, partnerships or corporations.

23.3 Automatic stay [11 USC 365]

(a) Filing of bankruptcy by the debtor automatically stays any actionagainst the tenant to enforce the unexpired lease or repossess thepremises.

(b) Effect:

(i) Stops the unlawful detainer action in its tracks until relief fromthe stay is obtained.

(ii) The landlord cannot offset the security deposit against unpaidrent while the bankruptcy is pending.

(iii) Violation of stay can result in the landlord’s liability to thetenant for damages, including costs and attorney’s fees.

(c) Exceptions:

(i) There is no stay as to an expired commercial lease.

(ii) In a residential lease, there is no stay if the unlawful detainerjudgment was obtained prior to filing [In re Smith, 105 BR 50,


53 (BK CD CA 1989)]; This, however, is not true as to commer-cial leases [In re Acorn Investments, 8 BR 506 (BK SD CA1981)].

23.4 Trustee's Right to Assume or Reject the Lease.

(a) The trustee in bankruptcy may exercise its right to assume or rejectthe lease at any time within 60 Days of the filing of the bankruptcy.

(b) The time period may be extended by motion or stipulation and courtorder.

(c) A terminated Lease cannot be assumed.

(i) The lease is terminated if the notice to pay rent or quit re-quested termination; and

(ii) The bankruptcy petition was filed after the Notice expired,without regard to whether the landlord actually obtained ajudgment for unlawful detainer prior to the filing of the bank-ruptcy [In re Windmill Farms, Inc., 841 F.2d 1467 (9th Cir.1988).]

(d) If the lease is rejected, the landlord is entitled to immediate posses-sion.

(e) If the lease is assumed:

(i) The lease is in full force.

(ii) Post-petition rent must be paid timely, or relief from the staycan be granted.

(iii) Pre-petition rent is an unsecured claim.

(f) Note, however, that even if the lease is assumed initially by thetrustee, the plan filed by the debtor in a Chapter 11 or Chapter 13 mayspecify that the lease will be deemed rejected.

23.5 Motion for Relief from Automatic Stay.

(a) Can be filed at any time.

(b) The Motion will be granted if:

(i) The landlord is not "adequately protected", i.e., paid; or

(ii) The debtor has no equity in the premises and the premises isnot necessary for the tenant’s effective reorganization.

a. As a result, relief from the automatic stay is much morelikely to be granted in a liquidating Chapter 7 bankruptcythan in a Chapter 11 or 13 reorganization bankruptcy.


b. Relief is rarely granted in Chapter 11 or Chapter 13prior to the time the trustee makes a determinationabout whether to assume or reject the lease, unless thelease cannot be assumed by the trustee as a result ofits termination prior to the filing of the bankruptcy.

(c) If the Motion for Relief is granted, the bankruptcy court loses control,and the unlawful detainer action can proceed in state court.

23.6 Landlord’s claim in the bankruptcy court.

(a) As long as the tenant-bankrupt is using the premises during thependency of the bankruptcy, the landlord is entitled to file a priorityclaim for administrative rent.

(b) Limitations on Landlord's right to damages in the bankruptcy preced-ing:

(i) The landlord cannot claim the full amount of future rent in thebankruptcy proceeding.

(ii) Instead, the landlord is limited to:

a. Unpaid rent; plus

b. Future rent, without acceleration, for the greater of oneyear, or 15%, but not more than three years, of theremaining term, following the earlier of:

i. the date the bankruptcy petition was filed, or

ii. the date the landlord recovered possession ofthe premises. 11 USCS § 502(b)(6).


UNLAWFUL DETAINER FACT SHEET

Tenant(s) Name(s): ______________________________________________

______________________________________________

Property Address: ____________________________________________

Landlord's Name: ____________________________________________

Landlord's Capacity: ____ Corporation ____ Limited Partnership

____ General Partnership ____ Individual

State in which Landlord formed: _____ California

_____ Other: ___________________

Lease Date: ________________ Commencement Date: ______________

Copy of Lease included? ______ Yes ______ No

All amendments or addenda to Lease included? ______ Yes

Lease previously assigned? ______ Yes ______ No

Assignments included? ______ Yes ______ No

Paragraph ____ of Lease calls for _____ three _____ five ____ other: __________ daysNotice of default in payment of rent.

Notice to Pay Rent or Quit served on ____________________

Copy of Notice included? ______ Yes ______ No

Copy of Tenants' Lease Application included? ____ Yes _____ No

If not, does a Lease Application exist? ______ Yes ______ No

©2011 Hewitt Wolensky LLP Landlord-Tenant Forms CONSULT WITH COUNSEL BEFORE USING23

Tenant(s) principal officers, agents or representatives:

1. Name: ______________________________

Social Security Number: _____________________

Driver's License Number: _____________________

Last known address: _______________________________________

2. Name: ______________________________




3. Name: ______________________________





UNLAWFUL DETAINER STATUS

Project: ____________________ Estimated Cost: _____________

Tenant: ____________________ Approved by _________________

Address: ____________________ Approved on: ________________

____________________ BK filed ____ Claim Filed ___

P. Mgr. ____________________ Amount of Claim _____________

Responsible Attorney: _____________ Revised Amount ______________

ACTION DATE COMMENTS

Notice Served:

Personal ______________ ____________________________

Certified Mail ______________ ____________________________

Reg. Mail ______________ ____________________________

Notice Expired: ______________ ____________________________

File Delivered: ______________ ____________________________

Complaint Received: ______________ ____________________________

Complaint Approved: ______________ ____________________________

Complaint Filed: ______________ ____________________________

Complaint Served: ______________ ____________________________

Response Filed: ______________ ____________________________

Default Requested: ______________ ____________________________

Default Entered: ______________ ____________________________

Default Judgment

(Possession Only): ______________ ____________________________


Writ of Possession: ______________ ____________________________

Judgment Entered: ______________ ____________________________

Writ Issued: ______________ ____________________________

Writ Posted: ______________ ____________________________

Trial Date: ______________ ____________________________

Eviction Completed: ______________ ____________________________

Asset Rpt. Ordered: ______________ ____________________________

Asset Rpt. Reviewed: ______________ ____________________________

File Closed: ______________ ____________________________

File Converted: ______________ ____________________________

GENERAL COMMENTS: _________________________________________________

_______________________________________________________________________

_______________________________________________________________________


FORM LETTER - NONPAYMENT OF RENT

(Date)

(Tenant's Name)

(Tenant's Address)

Re: (Address of Premises)

Dear (Tenant's Name):

(Landlord's Name) has not received your rent payment for the month of(Month and Year) in the sum of (Amount of Delinquent Rent). Please send that paymentto our office by (Deadline Date). If you fail to do so, we will take whatever action isnecessary to protect our interest including, but not limited to, serving a notice to pay rentor quit and filing a lawsuit to recover possession of the premises, rent, attorneys fees andcosts.

If you have paid the amount demanded, please disregard this notice, and wethank you for your payment.

Please call me if you have any questions.

Very truly yours,

(Landlord's Name)

By: (Property Management Company)

By:_______________________________ (Property Manager's Name) Its: (Title)


FORM LETTER UNDERPAYMENT OF RENT DEMANDED IN NOTICE

(Date)

(Tenant's Name)(Tenant's Address)



This will acknowledge delivery of the following checks to (Landlord's name):

(Itemize date and amounts of checks received)

Pursuant to the provisions of Code of Civil Procedure Section 1161.1, thereceipt of these amounts shall not affect the right of (Landlord's name) to proceed with anaction for unlawful detainer in the event the remaining amounts set forth in the Notice toPay Rent or Quit served on your client on (Date notice served) are not in fact received by(Landlord's name) on or before (Date notice expires).

Please give this matter your prompt attention.

(Landlord's Name)




FORM LETTER -- ABANDONMENT

(Date)

(Tenant's Name)(Tenant's Address)



This letter confirms our understanding regarding the lease dated (Date ofLease) ("the Lease") between (Landlord's Name) ("Landlord") and (Tenant's Name)("Tenant") covering certain real property commonly known as (Address of Property) ("theSubject Property"):

1. Tenant has vacated the Subject Property with no intent of retakingpossession or of claiming a right to possess the Subject Property at a later date.

2. Tenant has returned a key and possession of the Subject Property toLandlord.

3. Landlord intends to market and attempt to relet the Subject Property,and will use its best efforts to do so.

4. Landlord's acceptance of the key and possession of the SubjectProperty and its efforts to market and relet the Subject Property shall not constitute asurrender, lease termination or waiver of Landlord's right to hold Tenants and any otherappropriate party liable for all past, present and/or future obligations arising under theLease.

If you do not intend to abandon and vacate the Subject Property, pleasecontact me by 5:00 p.m. on (Deadline Date). If I do not hear from you by that time anddate, I will assume that the content of this letter is accurate and will proceed accordingly.

Please call me if you have any questions.

Very truly yours,

(Landlord's Name)




NOTICE OF NSF CHECK

TO: (Tenant's Name)

(Tenant's Address)

(Landlord) is the payee of a check you wrote for $(Amount of check) a copyof which is enclosed. The check was not paid because no such account exists or therewere insufficient funds in your account. If you fail to pay the full amount of the check incash within 30 days after this Notice is mailed, you could be sued and held responsible topay at least all of the following, pursuant to Civil Code Section 1719:

1. The amount of the check.

2. Damages of at least $100.00 or, if higher, three times the amount ofthe check up to $1,500.00.

3. The cost of mailing this Notice.

4. Attorneys fees and court costs under the terms of your lease.

Please direct your cash, cashier's check or money order to (Landlord's nameand address).

Dated: (Date) (Landlord's Name)




NOTICE TO PAY RENT OR QUIT

TO: (Tenant's Name)

(Tenant's Address)

SUBJECT: (Address of Leased Premises)

AND TO ALL OTHER TENANTS IN POSSESSION

NOTICE IS HEREBY GIVEN that, pursuant to the Lease by which you holdpossession of the above described premises, there is now due and payable unpaid rent forsaid premises in the estimated sum of (Amount of Delinquent Rent), consisting of thoseamounts outlined below [or in Exhibit "A" attached hereto].

WITHIN [Required notice period] DAYS after service of this Notice on you,you are required to pay said rent in full to Landlord at ____________________________,between the hours of 8:30 a.m. and 5:30 p.m. Monday through Friday, or to deliver uppossession of said premises to your Landlord, or legal proceedings will be commencedagainst you to recover possession of the premises and statutory damages of up to $600.00for the unlawful detention of said premises.

Under Code of Civil Procedure § 1161.1(b), Landlord will accept any partialpayments made by you after service of this notice and, without any further notice to you,may commence and pursue an action to recover the difference between the amountdemanded in this notice and the payment actually received. Under Code of Civil Procedure§ 1161.1(c), Landlord will accept any partial payments made by you after the actionreferred to in the prior sentence is commenced without waiver of any rights of the Landlord,including any right the Landlord may have to recover possession of the property, andwithout delaying the matter from proceeding.

YOU ARE FURTHER NOTIFIED that in the event of your failure to performunder the terms of this Notice, your Landlord hereby declares a forfeiture of the lease.




AMOUNTS:

Penal Code Section 594 reads: "Any person or persons who willfully or maliciouslydestroys and damages any real or personal property not their own will be punished by fineor imprisonment or both."


PROOF OF SERVICE NOTICE TO PAY RENT OR QUIT

I, (Declarant's Name), declare:

1. I am a citizen of the United States and a resident of the County of

(Name of County); I am and at all times herein mentioned was over the age of eighteen

years; my business address is (Business Address).

2. I served the within Notice to Pay Rent or Quit in the manner indicated

below:

( ) By delivering a copy to the tenant personally on______________________________.

( ) The tenant being absent from his place of residence and from hisusual place of business, by leaving a copy with some person ofsuitable age and discretion on ____________________________ andthereafter sending a copy through the mail addressed to the tenant athis place of residence on ____________________________.

( ) If such place of residence and business cannot be ascertained, or aperson of suitable age or discretion there cannot be found, then byaffixing a copy in a conspicuous place on the property on____________________________ and also delivering a copy to aperson there residing, if such person can be found; and thereaftersending a copy through the mail addressed to the tenant at the placewhere the property is situated on ______ _________.

3. The property is located at (Address of Leased Premises).

I declare under penalty of perjury that the foregoing is true and correct and

that this declaration was executed on (Date), at (City), California.

_______________________________

(Declarant's Name)


NOTICE TO PERFORM COVENANT OR QUIT

TO: (Tenant's Name)(Tenant's Address)


SUBJECT: (Address of Leased Premises)

NOTICE IS HEREBY GIVEN that Paragraph (Number) of the Lease dated(Lease Date), by which (Tenant's Name) holds possession of the above describedpremises requires you to perform the following covenant or condition, which you have failedto perform to date:

"(Quote Text From Applicable Paragraph)"

WITHIN [Required notice period] DAYS after service of this Notice on you,you are required to perform said covenant or condition in full or to deliver up possessionof said premises to your Lessor or legal proceedings will be commenced against you torecover possession of the premises and to recover statutory damages of up to $600.00 forthe unlawful detention of said premises.

YOU ARE FURTHER NOTIFIED that in the event of your failure to performsaid covenant or condition as hereinabove set forth or deliver up possession, Lessorhereby declares a forfeiture of the Lease.






PROOF OF SERVICE NOTICE TO PERFORM COVENANT OR QUIT





2. I served the within Notice to Perform Covenant or Quit in the manner

indicated below:


( ) The tenant being absent from his place of residence and from hisusual place of business, by leaving a copy with some person ofsuitable age and discretion on ____________________________ andthereafter sending a copy through the mail addressed to the tenant athis place of residence on _____________

_______________.

( ) If such place of residence and business cannot be ascertained, or aperson of suitable age or discretion there cannot be found, then byaffixing a copy in a conspicuous place on the property on_______________________________ and also delivering a copy toa person there residing, if such person can be found; and thereaftersending a copy through the mail addressed to the tenant at the placewhere the property is situated on _________ ______.




_______________________________

(Declarant's name)


NOTICE OF BELIEF OF ABANDONMENT

TO: (Tenant's Name)(Tenant's Address)

Re: (Address of Leased Premises)


This notice is given pursuant to Section 1951.3 of the Civil Code concerningthe real property leased by you at (Address of Leased Premises). The rent on this propertyhas been due and unpaid for 14 consecutive days and the lessor/landlord believes that youhave abandoned the property.

The real property will be deemed abandoned within the meaning of Section1951.2 of the Civil Code and your lease will terminate on (15 Days After Notice IsPersonally Delivered or 18 Days After Notice Is Deposited In The Mail), unless before suchdate the undersigned receives at the address indicated below a written notice from youstating both of the following:

1. Your intent not to abandon the real property.

2. An address at which you may be served by certified mail in any actionfor unlawful detainer of the real property.

You are required to pay the rent due and unpaid on this real property asrequired by the lease, and your failure to do so can lead to a court proceeding against you.



By:_______________________________

(Property Manager's Name)

Its: (Title)


PROOF OF SERVICE NOTICE OF BELIEF OF ABANDONMENT



Orange; I am and at all times herein mentioned was over the age of eighteen years; my

business address is (Business Address).

2. On (Date of Service), I served the within NOTICE OF BELIEF OF

ABANDONMENT on (Tenant's Name) by placing a true and correct copy thereof enclosed

in a sealed envelope with postage thereon fully prepaid for first-class mail in the United

States Post Office mail box at (City of Mailing), California, addressed to: (Tenant's Name

and Address of Leased Premises); (Tenant's Name and Any Other Address of Tenant).



_______________________________

(Declarant's name)


NOTICE OF TERMINATION OF TENANCY

TO: (Tenant's Name)

(Tenant's Address)

SUBJECT: (Property Address)

NOTICE IS HEREBY GIVEN that under the terms of your lease your tenancyof the above-referenced premises terminates on (Date lease expires), and that you mustvacate the premises on or before that date or you will be guilty of an unlawful detention ofthe premises. This notice is given pursuant to the provisions of Section 1946 of theCalifornia Civil Code.

If you fail to deliver up possession pursuant to the terms of this notice, legalproceedings will be commenced against you to recover possession and to recover ajudgment for actual damages for each day you hold possession beyond (Date leaseexpires), and statutory damages of up to $600.00.



_______________________________

By: (Name)

Its: (Title)



PROOF OF SERVICE NOTICE OF TERMINATION OF TENANCY





2. I served the within NOTICE OF TERMINATION OF TENANCY in the

manner indicated below:


( ) The tenant being absent from his place of residence and from hisusual place of business, by leaving a copy with some person ofsuitable age and discretion on ____________________________ andthereafter sending a copy through the mail addressed to the tenant athis place of residence on _____________

_______________.

( ) If such place of residence and business cannot be ascertained, or aperson of suitable age or discretion there cannot be found, then byaffixing a copy in a conspicuous place on the property on_______________________________ and also delivering a copy toa person there residing, if such person can be found; and thereaftersending a copy through the mail addressed to the tenant at the placewhere the property is situated on _________ ______.




_______________________________

(Declarant's name)


NOTICE OF RIGHT TO RECLAIM ABANDONED PERSONAL PROPERTY

TO: (Tenant's Name)

(Tenant's Address)

When you vacated the premises at (Address of Leased Premises) thefollowing personal property remained: See Exhibit "A" attached hereto.

You may claim this property at (Address Where Property May Be Claimed)

Unless you pay the reasonable cost of storage for all the above-describedproperty, and take possession of the property which you claim, not later than [Insert date15 days from personal service or 18 days from date of letter], this property may bedisposed of pursuant to Civil Code Section 1993.07.

EITHER

If you fail to reclaim the property, it will be sold at a public sale after noticeof sale has been given by publication. You have the right to bid on the property at thissale. After the property is sold and the cost of storage, advertising, and sale is de-ducted, the remaining money will be paid over to the county. You may claim theremaining money at any time within one year after the county receives the money.

OR

Because you were a commercial tenant and this property is believed to beworth less than the lesser of seven hundred fifty dollars ($750), or one dollar ($1) persquare foot of the premises you occupied, it may be kept, sold, or destroyed withoutfurther notice if you fail to reclaim it within the time indicated above.



_______________________________ By: (Name) Its: (Title)


PROOF OF SERVICE

NOTICE OF RIGHT TO RECLAIM ABANDONED PERSONAL PROPERTY



Orange; I am and at all times herein mentioned was over the age of eighteen years; my

business address is (Business Address).

2. On (Date of Service), I served the within NOTICE OF RIGHT TO

RECLAIM ABANDONED PERSONAL PROPERTY on (Tenant's Name) by placing a

true and correct copy thereof enclosed in a sealed envelope with postage thereon fully

prepaid for first-class mail in the United States Post Office mail box at (City of Mailing),

California, addressed to: (Tenant's Name and Address of Leased Premises); (Tenant's

Name and Any Other Address of Tenant).



_______________________________(Declarant's name)


CONTINUED POSSESSION AGREEMENT

THIS CONTINUED POSSESSION AGREEMENT ("Agreement") isentered into as of ____________________, 19____, by and between (Landlord's name)("Landlord") and (Tenant's name) ("Tenant") based on the following facts:

B. Tenant occupies that certain real property commonly known as (Propertyaddress) ("the Premises") under a written lease with Landlord dated (Lease date) ("theLease").

C. Tenant has failed to pay Landlord rent and other charges due under theLease in the total sum of $(Amount of default) ("the Default Amount"), and is in defaultunder the Lease.

D. Tenant desires to remain in the Premises and attempt to cure suchdefault, and Landlord is willing to allow Tenant to remain in possession of the Premiseson the terms set forth herein.

Based on the foregoing, Landlord and Tenant agree as follows:

1. Tenant acknowledges and agrees that as of the date of thisAgreement Tenant owes Landlord the Default Amount without offset or deduction.

2. Tenant agrees to pay Landlord the Default Amount in the amountsand on the terms set forth in Exhibit "A" to this Agreement.

3. Landlord agrees that Landlord will not declare Tenant in defaultunder the Lease, nor will Landlord commence unlawful detainer or eviction proceedingsagainst Tenant, as long as Tenant:

a. makes all payments due Landlord under the terms of thisAgreement;

b. makes all payments due Landlord under the Lease whichaccrue after the date of this Agreement; and

c. performs all other covenants and conditions required ofTenant under the terms of the Lease.

4. The failure of Tenant to make any payment due under this Agree-ment or the Lease as and when due, or any action by Tenant which would constitute anevent of default under the terms of the Lease, shall constitute a default under thisAgreement. In such event this Agreement will be of no further force or effect, andLandlord shall be entitled to exercise all of its remedies under the Lease, including itsright to recover possession of the Premises.

5. Nothing contained in this Agreement shall constitute an amend-ment, novation, accord and satisfaction or other modification of any of the terms of theLease, nor shall it constitute a waiver of any of Landlord's rights or remedies under theLease, including, but not limited to, Landlord's right to recover possession of the


Premises through an unlawful detainer action.

WHEREFORE Landlord and Tenant have executed this Agreement as ofthe date first above written.

______________________________ _____________________________

LANDLORD TENANT

AGREEMENT OF GUARANTOR

I, the undersigned, acknowledge that I have executed a written Guaranty("the Guaranty") of the Lease referenced in Paragraph "A" above, and that I am theguarantor of such Lease; that the Guaranty remains in full force and effect; that I haveread the foregoing Agreement and understand its content; that I agree that each andevery term of the Guaranty which I have signed shall be applicable to this Agreement;and I acknowledge that my agreement to be bound to the terms of this Agreement is amaterial inducement to the Landlord's execution of this Agreement.

Dated: _______________ ______________________________

GUARANTOR

______________________________

GUARANTOR


DEFERRED RENTAL AGREEMENT

THIS DEFERRED RENTAL AGREEMENT ("Agreement") is entered intoas of (Agreement date), by and between (Landlord's name) ("Landlord") and (Tenant'sname) ("Tenant") based on the following facts:

A. Tenant occupies that certain real property commonly known as (PropertyAddress) ("the Premises") under a written lease with Landlord dated (Lease date) ("theLease").

B. Tenant has advised Landlord of Tenant's inability to pay rent and othercharges due under the Lease.

C. Tenant desires to pay rent in an amount less than that called for under theLease and remain in the Premises, and Landlord is willing to accept such lower rent andallow Tenant to remain in possession of the Premises on the terms set forth herein.

Based on the foregoing, Landlord and Tenant agree as follows:

1. Tenant agrees to pay Landlord the amounts set forth in Exhibit "A"to this Agreement on the dates and terms set forth therein, and that Tenant will com-mence payment of the full rent and other charges due under the Lease with the rentalpayment that falls due on (Date full rental payments are to begin)

2. Landlord agrees that Landlord will not declare Tenant in defaultunder the Lease, nor will Landlord commence unlawful detainer or eviction proceedingsagainst Tenant, as long as Tenant makes all payments due Landlord under the terms ofthis Agreement and performs all other covenants and conditions required of Tenantunder the terms of the Lease.

3. The failure of Tenant to make any payment due under this Agree-ment as and when due, or any action by Tenant which would constitute an event ofdefault under the terms of the Lease, shall constitute a default under this Agreement. Insuch event this Agreement will be of no further force or effect, any deferred rentpayments shall become immediately due and payable, and Landlord shall be entitled toexercise all of its remedies under the Lease, including its right to recover possession ofthe Premises.

4. Nothing contained in this Agreement shall constitute an amend-ment, novation, accord and satisfaction or other modification of any of the terms of theLease, nor shall it constitute a waiver of any of Landlord's rights or remedies under theLease, including, but not limited to, Landlord's right to recover possession of thePremises through an unlawful detainer action in the event Tenant defaults under theterms of this Agreement or the Lease.

WHEREFORE Landlord and Tenant have executed this Agreement as of


the date first above written.

______________________________ _____________________________

LANDLORD TENANT


I, the undersigned, acknowledge that I have executed a written Guaranty("the Guaranty") of the Lease referenced in Paragraph "A" above, and that I am theguarantor of such Lease; that the Guaranty remains in full force and effect; that I haveread the foregoing Agreement and understand its content; that I agree that each andevery term of the Guaranty which I have signed shall be applicable to this Agreement;and I acknowledge that my agreement to be bound to the terms of this Agreement is amaterial inducement to the Landlord's execution of this Agreement.

Dated: _______________ ______________________________

GUARANTOR

______________________________

GUARANTOR


ASSIGNMENT OF LEASE

This Assignment of Lease ("Assignment") is made as of (Agreement date)by and between (Old Tenant's name) ("Assignor") and (New Tenant's name) ("As-signee"), based on the following facts:

RECITALS

A. (Landlord's name), as Landlord, and Assignor as Tenant, executed alease dated (Lease date) whereby Assignor leased certain real property identified as(Property address) from Landlord on the terms and conditions set forth in the writtenLease, a true and correct of which is attached hereto as Exhibit "A" and incorporatedherein by reference ("the Lease").

B. Assignor now desires to assign the Lease to Assignee, and Assigneedesires to accept the assignment thereof.

NOW, THEREFORE, Assignor and Assignee agree as follows:

1. For value received, receipt of which is hereby acknowledged, andthe agreement of Assignee, hereinafter set forth, Assignor hereby assigns and transfersto Assignee all of his right, title and interest in and to the Lease, and Assignee herebyagrees to and does accept the assignment.

2. Assignee expressly assumes and agrees to keep, perform, andfulfil all terms, covenants, conditions, and obligations required to be kept, performed andfulfilled by Assignor as Tenant under the Lease, including the making of all paymentsdue to or payable on behalf of Landlord under the Lease when due and payable.

Executed at (City), California, as of the date first above written.

ASSIGNOR: ASSIGNEE:

By: ____________________ By: ____________________

CONSENT OF LANDLORD

The undersigned is the Landlord under the Lease described in theforegoing assignment. Landlord hereby consents to the assignment of the Lease toAssignee on the express condition that both Assignor and Assignee shall be and remainjointly and severally liable for the prompt payment of any and all rent or other paymentsrequired under the terms of the Lease and for the performance of all obligations of theTenant under the Lease, and provided further that there shall be no further assignmentof the Lease without the prior written consent of the Landlord.

LANDLORD:

By: ____________________


I, the undersigned, acknowledge that I have executed a written Guaranty("the Guaranty") of the Lease referenced in Paragraph "A" above, and that I am theguarantor of such Lease; that the Guaranty remains in full force and effect; that I have


read the foregoing Assignment of Lease and understand its content; that I agree thateach and every term of the Guaranty which I have signed shall be applicable to theobligations of the Assignor under this Assignment; and I acknowledge that my agree-ment to be bound to the obligations of the Assignor under the terms of this Assignmentis a material inducement to the Landlord's execution of this Assignment.

Dated: _______________ ______________________________

GUARANTOR

______________________________

GUARANTOR


CONSENT TO SUBLEASE

This Consent to Sublease ("Consent") is made as of (Agreement date), byand between (Landlord's name) ("Landlord"), (Tenant's name) ("Tenant") and (Subten-ant's name) ("Subtenant") based on the following facts:

A. On (Lease date), Landlord leased that certain premises commonly knownas (Property address) ("the Premises") to Tenant under a written lease, a true andcorrect copy of which is attached hereto as Exhibit "A" and incorporated herein byreference ("the Master Lease") on the terms and conditions set forth therein.

B. Under the terms of the Lease, Landlord must consent to the subleasing ofall or any portion of the Premises by the Tenant.

C. Tenant and Subtenant have entered into a written Sublease, a true andcorrect copy of which is attached hereto as Exhibit "B" and incorporated herein byreference ("the Sublease"), whereby Subtenant will sublease a portion of the Premises("the Sublet Space") from Tenant on the terms and conditions set forth in the Sublease,and Tenant and Subtenant have asked Landlord to consent to the Sublease.

NOW, THEREFORE, Landlord, Tenant and Subtenant agree as follows:

1. Landlord hereby consents to the Tenant's subletting of the SubletSpace to the Subtenant on the terms and conditions set forth in the Sublease.

2. Nothing contained in this Consent shall be construed to modify,waive or effect any of the provisions, covenants or conditions in the Master Lease, anyof the Tenants obligations under the Master Lease or any rights or remedies of Landlordunder the Master Lease or otherwise, nor shall this consent be deemed to enlarge orincrease Landlord's obligations or Tenant's rights under the Master Lease or otherwise.

3. Nothing contained in this Consent shall constitute a waiver byLandlord of any of its rights under the Master Lease as to the Lessee or under theSublease as to the Sublessee, and this Consent shall not in any affect any obligationsof the Tenant under the Master Lease for the payment of rent, additional rent, or othercharges due thereunder.

4. Nothing contained in this Consent shall operate as a consent to,approval of or ratification by the Landlord of any of the provisions of the Sublease or asa representation or warranty by Landlord, and Landlord shall not be bound or estoppedin any way by the provisions of this Sublease.

5. Nothing contained in this Consent shall be construed to waive anypresent or future breach or default on the part of Tenant under the Master Lease.

WHEREFORE, the parties have executed this Consent as of the day and


date first above mentioned.

TENANT: SUBTENANT:

By: ____________________ By: _____________________

LANDLORD:

By: ____________________


I, the undersigned, acknowledge that I have executed a written Guaranty("the Guaranty") of the Lease referenced in Paragraph "A" above, and that I am theguarantor of such Lease; that the Guaranty remains in full force and effect; that I haveread the foregoing Consent to Sublease and understand its content; that I agree thateach and every term of the Guaranty which I have signed shall be applicable to theobligations of the Tenant under this Consent to Sublease; and I acknowledge that myagreement to be bound to the obligations of the Tenant under the terms of this Consentto Sublease is a material inducement to the Landlord's execution of this Consent toSublease.

Dated: _______________ ______________________________

GUARANTOR

______________________________

GUARANTOR


LANDLORD'S SUBORDINATION AGREEMENT

This Landlord's Subordination Agreement ("Agreement") is made as of(Agreement date), by and between (Landlord's name) ("Landlord"), (Tenant's name)("Tenant") and (Equipment Lessor's name) ("Secured Party"), with reference to thefollowing facts:

RECITALS

A. Landlord is the owner of certain real property located at (Property ad-dress) (the "Premises").

B. Tenant leases the Premises from Landlord pursuant to a written lease("the Lease").

C. Tenant has or will enter into an equipment lease/promissory note ("theObligation") in which Secured Party is the lessor/secured party, and Tenant is theLessee/Debtor. The Obligation covers the personal property identified in Exhibit "A"attached hereto and incorporated herein by reference ("the Personal Property").

D. Tenant and Secured Party have requested Landlord to consent to theObligation on the Personal Property and Landlord has agreed to so consent.

NOW THEREFORE, in order to induce Secured Party to finance thePersonal Property for Tenant and in consideration of other good and valuable consider-ation, receipt of which is hereby acknowledged, Landlord agrees as follows:

1. Landlord hereby consents to the Obligation on the PersonalProperty and agrees to subordinate all of the right, title, claim and lien of the Landlord,whether now held or hereafter acquired, in or to the Personal Property to the interest ofthe Secured Party in the Personal Property; provided, however, that said consent andsubordination shall be ineffective to the extent that Tenant has an equity in interest inthe Personal Property.

2. Landlord agrees that the Personal Property is and shall remainpersonal property regardless of whether or by what means it is or may become attachedor affixed to the Premises.

3. Landlord and Tenant will permit the Secured Party to enter onto thePremises for the purpose of exercising any right it may have under the terms of theObligation or otherwise including, without limitation, the right to remove the PersonalProperty; provided, however, that if Secured Party, in removing the Personal Property,damages any improvements on the Premises, the Secured Party will, at its soleexpense, cause the same to be repaired and restored. The Secured Party shall havethe right to enter onto the Premises and take possession of the Inventory after havinggiven a five (5) day prior written notice thereof to Landlord.

4. This Consent is only a waiver of lien rights and shall not be deemedor construed to be a consent to anything else including, but not limited to, structuralchanges on the Premises in which Tenant is located.

5. This Subordination of Inventory Note shall be binding upon theheirs, successors and assigns of Landlord and shall be effective so long as the Obliga-tion remains in full force and effect.


6. If Secured Party fails to remove the Personal Property from thePremises within ten (10) days after receipt of written notice from Landlord that Tenant isin default under the Lease, then this Agreement shall automatically become null andvoid. Secured Party agrees to remove the Personal Property, and Tenant agrees tosuch removal, even though Tenant may not be in default in its obligations to SecuredParty.

IN WITNESS WHEREOF, the undersigned have executed this Landlord'sConsent to Equipment Note as of (Agreement Date).

_________________________

LANDLORD

_________________________

TENANT

_________________________

SECURED PARTY

_________________________

_________________________


PROMISSORY NOTE

$(Note Amount) (City), California (Note date)

I, (Tenant's name) ("Maker"), promise to pay (Landlord's name) ("Holder"),at (Address at which payments are to be made), or at such other address as may bedesignated by Holder, the principal sum of (Note amount), plus interest thereon at therate of (Percentage interest rate), with payments to be made in equal monthly install-ments of (Monthly installment amount) commencing on (Date payments begin) andcontinuing until (Date payments end), at which time the entire balance of principal andinterest shall be due and payable.

This Note shall become immediately due and payable, without demand ornotice, upon default in payment or performance of this Note, and in the event of adefault in payment or performance of this Note, interest shall accrue on any outstandingprincipal balance at the highest legal rate until paid.

Maker and each endorser agree that if any legal action is necessary toenforce or collect this Note or any other obligations for non-payment at maturity, theprevailing party shall be entitled to reasonable attorneys fees in addition to any otherrelief to which the party may be entitled.

______________________________Maker

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