However, if the litigant filing the eviction action fails to file a prejudgment claim to right of possession, and an unnamed tenant does file a prejudgment claim, then the eviction will be delayed in order for a hearing to take place to determine if the unnamed tenant should have been included as a defendant in the original eviction action. At Underwood Law Firm, our attorneys are more than familiar with prejudgment claims to right of possession.
Code of Civil Procedure 415.46
The requirements for a prejudgment claim to right of possession are codified in Code of Civil Procedure section 415.46. Under section 415.46, services of process of a prejudgment claim to right of possession must be effected by a marshal, sheriff, or registered process server. (CCP § 415.46.)
Under section 415.46, subdivision (c)(1), when a marshal, sheriff, or registered process server is serving the summon and complaint of an unlawful detainer action, they must also make a “reasonably diligent effort” to ask the person being personally served if there are other adult occupants occupying the premises. (CCP § 415.46 (c)(1).) If it becomes clear that there are other adult occupants occupying the premises, then the marshal, sheriff, or registered process server must serve the prejudgment claim to right of possession upon that occupant. (CCP § 415.46 (c)(2).)
If the officer or process server is unable to identify any adult occupants occupying the premises, then they must serve all persons claiming to occupy the premises at the time the eviction action is initiated by leaving a copy of the prejudgment claim to right of possession with the summons and complaint in a conspicuous place on the premises. (CCP § 415.46 (c)(3).) The server must also mail the prejudgment claim to right of possession with the summons and complaint to the premises via first class mail. (CCP § 415.46 (c)(3).)
Arrieta v. Mahon (1982) 31 Cal.3d 381
The case of Arrieta v. Mahon marked the start of the prejudgment claim to right of possession in California.
In Arrieta, the plaintiff brought an action against the Los Angeles County Marshal’s Office after she was evicted from her apartment without any notice of said eviction. On March 21, 1979, the Los Angeles County Marshal left a notice at the apartment of the plaintiff, Sarah Arietta, ordering Ernesto Falcon to leave the premises or be forcibly evicted. (Arrieta, 31 Cal.3d 381, 384.) Falcon was living with Arietta and her children at the apartment for a little over a year until he moved to Mexico in the fall of 1978. (Id.) Falcon also helped Arietta find the apartment and made the first month’s rent payment and key deposit. (Id.) However, Arietta made all of the foregoing rental payments. (Id.) At the time, the policy of the Los Angeles County Marshal’s Office was to evict the tenant and all other occupants on the premise when enforcing a Writ of Execution against a tenant. (Arrieta, 31 Cal.3d 381, 385.) Arietta and her family members living in the apartment were never served with any papers or notices relating to the unlawful detainer action against Falcon until the writ of execution and notice to vacate was posted on the door of Arietta’s apartment on March 21. (Arrieta, 31 Cal.3d 381, 384.)
In turn, Arietta brought forth an action for declaratory and injunctive relief, claiming that the Los Angeles County Marshal’s Office policy was a violation of her rights to procedural due process to be free from unreasonable searches and seizures. (Arrieta, 31 Cal.3d 381, 385.) The trial court granted declaratory relief, barring the Marshal’s Officer from evicting any adult person not named in the writ of execution who entered the premises before the unlawful detainer action commenced and claimed a right to possession. (Arrieta, 31 Cal.3d 381, 386.)
The Supreme Court held “(1) eviction of persons from their homes pursuant to writ of execution issued against another or persons who are unnamed in writ or accompanying papers is contrary to due process; (2) inclusion in notice to vacate of language advising those who claim right to possession occurring before commencement of unlawful detainer action, or who claim to have been in possession of the premises on the date of filing action and who is not named in the writ, to contact marshal’s office, followed by the procedure prescribed for the marshal, satisfies due process requirements by providing individuals unnamed in writ with notice and an opportunity to be heard.” (Arrieta, 31 Cal.3d 381, 389-390.)
As a result of the Supreme Court’s holding, the California legislature enacted statutory procedures for a prejudgment claim to right of possession, codified in Code of Civil Procedure section 415.46. (George v. County of San Luis Obispo (2000) 78 Cal.App.4th 1048, 1054, 93 Cal.Rptr.2d 595.)
How Can the Attorneys at the Underwood Law Firm Assist You?
The prejudgment claim to right of possession allows a litigant initiating an unlawful detainer action to give notice of the action to all unnamed tenants occupying the premises subject to the unlawful detainer action. The prejudgment claim to right of possession acts as a safeguard to the due process rights of unnamed tenants. Therefore, the procedures for services of the process of a prejudgment claim to right of possession are complex because, without such procedures, there is a risk of violation of a person’s due process rights.
As each case is unique, litigants would be well-served to seek experienced counsel familiar with the ins and outs of the prejudgment claim to right of possession and the law surrounding it. At Underwood Law, our knowledgeable attorneys are here to help. If you believe you need to file a prejudgment claim to right of possession, are worried about a prejudgment claim to right of possession filed against you, or if you just have questions, please do not hesitate to contact our office.
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