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§ 415.46 Prejudgment claim of right to possession

Codes > California Code of Civil Procedure > Part 2 > Title 5 > 415.46

§ 415.46. Prejudgment claim of right to possession

    (a) In addition to the service of a summons and complaint in an action for unlawful detainer upon a tenant and subtenant, if any, as prescribed by this article, a prejudgment claim of right to possession may also be served on any person who appears to be or who may claim to have occupied the premises at the time of the filing of the action. Service upon occupants shall be made pursuant to subdivision (c) by serving a copy of a prejudgment claim of right to possession, as specified in subdivision (f), attached to a copy of the summons and complaint at the same time service is made upon the tenant and subtenant, if any.

    (b) Service of the prejudgment claim of right to possession in this manner shall be effected by a marshal, sheriff, or registered process server.

    (c) When serving the summons and complaint upon a tenant and subtenant, if any, the marshal, sheriff, or registered process server shall make a reasonably diligent effort to ascertain whether there are other adult occupants of the premises who are not named in the summons and complaint by inquiring of the person or persons who are being personally served, or any person of suitable age and discretion who appears to reside upon the premises, whether there are other occupants of the premises.

    If the identity of such an occupant is disclosed to the officer or process server and the occupant is present at the premises, the officer or process server shall serve that occupant with a copy of the prejudgment claim of right to possession attached to a copy of the summons and complaint. If personal service cannot be made upon that occupant at that time, service may be effected by (1) leaving a copy of a prejudgment claim of right to possession attached to a copy of the summons and complaint addressed to that occupant with a person of suitable age and discretion at the premises, (2) affixing the same so that it is not readily removable in a conspicuous place on the premises in a manner most likely to give actual notice to that occupant, and (3) sending the same addressed to that occupant by first-class mail.

    In addition to the service on an identified occupant, or if no occupant is disclosed to the officer or process server, or if substituted service is made upon the tenant and subtenant, if any, the officer or process server shall serve a prejudgment claim of right to possession for all other persons who may claim to occupy the premises at the time of the filing of the action by (1) leaving a copy of a prejudgment claim of right to possession attached to a copy of the summons and complaint at the premises at the same time service is made upon the tenant and subtenant, if any, (2) affixing the same so that it is not readily removable in a conspicuous place on the premises so that it is likely to give actual notice to an occupant, and (3) sending the same addressed to “all occupants in care of the named tenant” to the premises by first-class mail.

    The person serving process shall state the date of service on the prejudgment claim of right to possession form. However, the absence of the date of service on the prejudgment claim of right to possession does not invalidate the claim.

    (d) Proof of service under this section shall be filed with the court and shall include a statement that service was made pursuant to this section. Service on occupants in accordance with this section shall not alter or affect service upon the tenant or subtenant, if any.

    (e) If an owner or his or her agent has directed and obtained service of a prejudgment claim of right to possession in accordance with this section, no occupant of the premises, whether or not such occupant is named in the judgment for possession, may object to the enforcement of that judgment as prescribed in Section 1174.3.

    (f) The prejudgment claim of right to possession shall be made on the following form:

    NOTICE

    EVERYONE WHO LIVES IN THIS RENTAL UNIT MAY BE EVICTED BY COURT ORDER. READ THIS FORM IF YOU
LIVE HERE AND YOUR NAME IS NOT ON THE ATTACHED SUMMONS AND COMPLAINT.

    If you live here and you do not complete and submit this form within 10 days of the date of service shown on this form, you will be evicted without further hearing by the court along with the persons named in the summons and complaint.

    If you file this form, your claim will be determined in the eviction action against the persons named in the complaint.

    If you do not file this form, you will be evicted without further hearing.

    CLAIMANT OR CLAIMANT'S                                                          TELEPHONE NO. FOR                  COURT USE ONLY

    ATTORNEY

    (Name and Address):

    ATTORNEY FOR (Name):

    NAME OF COURT:

    STREET ADDRESS:

    MAILING ADDRESS:

    CITY AND ZIP CODE:

    BRANCH NAME:

    PLAINTIFF:

    DEFENDANT:

    PREJUDGMENT CLAIM OF RIGHT

    TO POSSESSION
                                                                                                                                                            CASE NUMBER:

                                                                                                                                           DATE OF SERVICE:

                                                                                                                                           (Date that form is served or

                                                                                                                                           delivered, posted and mailed by

                                                                                                                                            the officer or process server)

    Complete this form only if ALL of these statements are true:

    1. You are NOT named in the accompanying Summons and Complaint.

    2. You occupied the subject premises on or before the date the unlawful detainer (eviction) complaint was filed.

    (The date is in the accompanying Summons and Complaint.)

    3. You still occupy the subject premises.

    PREJUDGMENT CLAIM OF RIGHT TO POSSESSION

    I DECLARE THE FOLLOWING UNDER PENALTY OF PERJURY:

    1. My name is (specify):

    2. I reside at (street address, unit no., city and ZIP code):

    3. The address of “the premises” subject to this claim is (address):

    4. On (insert date): ____________________________, the landlord or the landlord's authorized agent filed a complaint to recover possession of the premises. (This date is in the accompanying Summons and Complaint.)

    5. I occupied the premises on the date the complaint was filed (the date in item 4). I have continued to occupy the premises ever since.

    6. I was at least 18 years of age on the date the complaint was filed (the date in item 4).

    7. I claim a right to possession of the premises because I occupied the premises on the date the complaint was filed (the date in item 4).

    8. I was not named in the Summons and Complaint.

    9. I understand that if I make this claim of possession, I will be added as a defendant to the unlawful detainer (eviction) action.

    10. (Filing fee) I understand that I must go to the court and pay a filing fee of $__________ or file with the court “Application for Waiver of Court Fees and Costs.” I understand that if I don't pay the filing fee or file the form for waiver of court fees within 10 days from the date of service on the form (excluding court holidays), I will not be entitled to make a claim of right to possession. I also understand that I will have 5 days (excluding court holidays) to file a response to the Summons and Complaint after I file this claim of possession.

    NOTICE: If you fail to file this claim, you will be evicted without further hearing.

    PREJUDGMENT CLAIM OF RIGHT TO POSSESSION

    11. Rental agreement. I have (check all that apply to you):

        a. [ ] an oral rental agreement with the landlord.

        b. [ ] a written rental agreement with the landlord.

        c. [ ] an oral rental agreement with a person other than the landlord.

        d. [ ] a written rental agreement with a person other than the landlord.

        e. [ ] other (explain):

    I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

    WARNING: Perjury is a felony punishable by imprisonment in the state prison.

    Date:

                                                                                  ______________________________________

    (TYPE OR PRINT NAME)                                                                          (SIGNATURE OF CLAIMANT)

    NOTICE: If you file this claim to possession, the unlawful detainer action against you will be determined at trial. At trial, you may be found liable for rent, costs, and, in some cases, treble damages.

    PREJUDGMENT CLAIM OF RIGHT TO POSSESSION

NOTICE TO OCCUPANTS

    YOU MUST ACT AT ONCE IF ALL THE FOLLOWING ARE TRUE:

    (1) You are not named in the accompanying Summons and Complaint.

    (2) You occupied the premises on or before the date the unlawful detainer (eviction) complaint was filed.

    (3) You still occupy the premises.

    You can complete and SUBMIT THIS CLAIM FORM within 10 days from the date of service (on the form) at the court where the unlawful detainer (eviction) complaint was filed.

    If you do not complete and submit this form (and pay a filing fee or file the form for proceeding in forma pauperis if you cannot pay the fee), YOU WILL BE EVICTED.

    After this form is properly filed, you will be added as a defendant in the unlawful detainer (eviction) action and your right to occupy the premises will be decided by the court. If you do not file this claim, you will be evicted without a hearing.

PREJUDGMENT CLAIM OF RIGHT TO POSSESSION