Why Are “Unlawful Detainers” Summary Proceedings?

“Eviction” is a civil remedy to restore real property to a person with the actual right of possession. “Unlawful detainers” are a unique type of civil lawsuit, which take their name from a set of statutes – called the “unlawful detainer statues” – which California implemented to provide a speedy method to restore such possession.

Unlawful detainers are referred to as “summary proceedings” because they dictate a faster timeline for nearly all pre-trial litigation. California designed unlawful detainer proceedings to move quickly, promising a speedy solution for those who qualified, and dismissed those who didn’t. For instance, a defendant must respond to a complaint within 5 days after service, instead of the usual 30 days. Similarly, discovery responses are due in 5 days instead of 30. Moreover, while unlawful detainers are also often pled in “limited civil jurisdiction” (for smaller amounts in controversy), they are expressly exempt from limited jurisdiction “economic litigation” rules, curtailing an expansive discovery plan and limiting exotic law and motion procedures.

Further, while general civil lawsuits can plead any number of claims against a particular defendant, unlawful detainer lawsuits may only proceed on a summary basis if they are limited to claims for unlawful detainer. Case law began to recognize remedies for defendants – to terminate the action at an early stage – if the complaint was not limited in this way. For example, unlawful detainers are generally based upon the proper service of a legally sufficient notice to quit. Without proper service of the notice (or the notice itself), you might be pleading something, but it isn’t an unlawful detainer. Defendants in this case can therefore attack the unlawful detainer complaint by way of a “motion to quash service (of the five-day summons)”, reasoning that the case might proceed if the landlord could amend for, e.g., breach of the contractual obligation to pay rent; but since a notice was not served, service of the five-day unlawful detainer summons couldn’t confer jurisdiction over the defendant.

On the other hand, a plaintiff who properly creates and pleads their unlawful detainer case is entitled to all its benefits (simplified scope, faster discovery, sooner trial). But this can be illusory. Paradoxically, while unlawful detainers are supposed to be “single issue” cases, the procedural summary nuance invites unusually large numbers of substantive defenses and collateral attacks. And, since possession of real property is intertwined with policy and politics, governments have used exogenous tools to slow – or frustrate – the speedy remedy. Of course, many will recall the literal “closing of the court doors” in mid-2020, followed by the elimination of rent default as a basis for eviction. But San Francisco sponsors an evergreen delay in the form of 2018’s Proposition F – or the “no tenant eviction without representation act”. Noble though its purpose may be, it mostly takes the form of emboldening tenants via free attorneys and promises of eviction delays and payouts, to hold over in violation of law on principle – as this achieves San Francisco’s goal of minimizing/warding off the displacement of tenants from rent-controlled housing.

The “summary proceeding” was enacted in the mid-19th century. It’s changed a lot since, and while its procedures still promote expediency in theory, the contemporary practitioner must be mindful of advancing its cause in the current context. It starts with a commitment to excellence in work product – a notice to quit that will survive challenge. It proceeds through a diligent and dispassionate response to pleading challenges and abusive discovery practices. It thoughtfully evaluates the risk of trial and the reward of moderate settlement payments as the tactical approach to litigation expense. And, when necessary, it reduces a trial on the merits to the minimal number of issues, to avoid “kitchen sink” defenses, and to achieve the underlying goal of the statutes: a summary resolution.

The attorneys at Zacks & Freedman, PC can assist you with your unlawful detainer matters. Contact us to request a consultation.