If you are trying to figure out how to evict someone not on the lease in California, the honest answer is that the
problem is not the person. It is your paperwork. An unlawful detainer judgment reaches the people named in it.
Adults living in the unit who were never named are a separate question, and California has a specific procedure
for handling them. Miss it and your lockout can be stopped on the day it is scheduled.
This is general information, not legal advice.
Why the notice does not solve it
Most owners assume they have handled unnamed occupants because they wrote and all occupants on the three
day notice. Keep doing that. It is a good habit. It is not the protection people think it is.
Code of Civil Procedure section 1161 requires the notice go to the tenant, and if there is a subtenant in actual
occupation of the premises, also to the subtenant. A subtenant holds under your tenant through an
arrangement. An adult child, a partner, or a friend who moved in and never signed anything is not a subtenant.
That person is an occupant, and the notice statute does not reach them.
Section 1162 governs service of the notice and authorizes three methods attempted in order: personal delivery,
then substituted service on a competent adult at the residence with a mailed copy, then posting and mailing as a
last resort. Serve it correctly. Just understand that serving notice does not make anyone a party to your lawsuit.
The document that does the work
The mechanism is a Prejudgment Claim of Right to Possession, Judicial Council form CP10.5, authorized by Code
of Civil Procedure section 415.46. It is served alongside the summons and complaint, not with the notice.
Three requirements trip up self-managing owners. First, you cannot serve it. Section 415.46 requires a marshal,
a sheriff, or a registered process server. Not you, not an employee, not a friend.
Second, the server has to ask. The statute requires a reasonably diligent effort to ask the person being served
whether other adults occupy the premises. If other adult occupants are identified, each is served with the claim
attached to a copy of the summons and complaint.
Third, there is a fallback for the common case. If nobody is disclosed, or the tenant was served by substituted
service, the server posts the claim attached to a copy of the summons and complaint in a conspicuous place at
the property, affixed so it is not readily removable, and mails a copy addressed to all occupants. You never
needed the names. You needed the procedure.
One more step gets skipped even by careful owners. The proof of service filed with the court must state that
service was made under this section. Without that statement you did the work and cannot prove it.
The ten day clock
Once served, an unnamed occupant has ten days from the date of service shown on the return of service to file
the claim with the court. Weekends count inside that window. Other judicial holidays do not. If day ten falls on a
Saturday or Sunday, it extends to the next court day.
If they file, they are added as a defendant in your existing case and must answer within five days. Your case
survives. It simply has one more party. If they do not file, they can be evicted along with the people you named.
The rule that makes it worth doing
Here is the centerpiece. Section 415.46 provides that where the owner has directed and obtained service of a
prejudgment claim of right to possession in accordance with that section, no occupant of the premises, whether
or not that occupant is named in the judgment for possession, may object to enforcement of that judgment.
No occupant. Named or not. That is what the procedure buys you: a judgment that reaches everyone in the unit,
with nobody left who can stand in front of it on lockout day.
The rule traces to Arrieta v. Mahon (1982) 31 Cal.3d 381, a California Supreme Court decision holding that
evicting adults who were never named in the writ violates due process. The Legislature responded with the
prejudgment claim procedure.
What skipping it costs
The figures below are illustrative, not a quote for any specific case.
Assume a unit renting at two thousand dollars a month, roughly sixty six dollars a day. If the prejudgment claim
was never served, an unnamed occupant who lived there on the filing date can file a claim of right to possession
at any time after the writ is posted, up to and including the moment the levying officer returns to carry out the
eviction. That filing stops the lockout.
Then you wait. If the claimant deposits fifteen days of rent, the hearing is set not less than five and not more
than fifteen days out. If they file only the fee or a fee waiver, the hearing is set on the fifth day. That is five to
fifteen days of dead time, roughly three hundred to a thousand dollars of rent at the rate above, before anyone
evaluates the claim. If the claim holds up, the court treats the complaint as amended to add the claimant, who
then has five days to answer, and you are litigating again.
