Purpose and Scope

Section 415.46 provides that an owner of property may serve a prejudgment claim of right to possession form on a tenant as part of an unlawful detainer action. Once the tenant is served with the claim form, section 1174.25, subdivision (a)(1), provides the tenant “may file a claim as prescribed in Section 415.46, with the court within 10 days of the date of service of the prejudgment claim of right to possession [form] as shown on the return of service.... Filing the prejudgment claim of right to possession shall constitute a general appearance....”

Subdivision (b) of section 1174.25 provides further, “At the time of filing, the claimant shall be added as a defendant in the action for unlawful detainer and the clerk shall notify the plaintiff that the claimant has been added as a defendant in the action by mailing a copy of the claim filed with the court to the plaintiff with a notation so indicating. The claimant shall answer or otherwise respond to the summons and complaint within five days... after filing the prejudgment claim of possession. Thereafter, the name of the claimant shall be added to any pleading, filing or form filed in the action for unlawful detainer.”

Procedural Process

“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.” (Civ. Code, Sec. 415.46(a).)

“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 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, 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 sending the same addressed to ‘all occupants in care of the named tenant’ to the premises by first-class mail.” (Civ. Code, Sec. 415.46(c)(3).)

Response of Occupants

Occupants of the premises not named in the unlawful detainer action or in the writ of possession (and never served with a prejudgment claim of right to possession by the landlord, pursuant to Civ. Code, Sec.415.46) may contest enforcement of the writ of possession if they claim a right to possession predating the commencement of the unlawful detainer action. Civ. Code, Sec. 715.020(d) and 1174.3(a). To object to enforcement of the writ of possession, the occupants must file with the levying officer a “claim of right to possession.” Civ. Code, Sec. 1174.3(a) and (h). The claim may be filed with the levying officer at any time after service or posting of the writ of possession, but no later than the time at which the levying officer returns to effect actual eviction under the writ (i.e., the sixth day after service of the writ). Civ. Code, Sec.1174.3(a). If a timely claim of right to possession is made, the levying officer must deliver the claim to the court and obtain a hearing date to determine the validity of the claim. Civ. Code, Sec. 1174.3(b). The levying officer must then notify the claimant and the landlord of the date of the hearing. Civ. Code, Sec. 1174.3(c).