Relearning How to Count to Five: Changes in How to Calculate Days in Unlawful Detainer Actions

By Michael G. Olinik

On September 1, 2019, AB 2343 went into effect and changed what days are calculated for certain three-day notices and for calculating the time to respond to a summons and complaint for any unlawful detainer action. AB 2343 amended Cal. Code Civ. P. § 1161 and Cal. Code Civ. P. § 1167.  The purpose of the law is to give tenants additional time to cure breaches of the lease in order to prevent unlawful detainers and to give all unlawful detainer defendants additional time to respond to complaints.

Prior to September 1, 2019, every calendar day was counted towards all notices or the time to respond to a lawsuit, but if the last day was a weekend or a holiday, the notice would expire or the time to respond would run at the end of the next business day.  The new law, which only applies to three day notices to pay rent or quit (§ 1161(2)), three day notices to perform covenant or quit (§ 1161(3)), and the time to respond to an unlawful detainer summons and complaint (§ 1167), now excludes all weekends and judicial holidays when calculating these time periods.  The Court has created a new unlawful detainer summons, California Court Form SUM-130, to reflect the new law.

The effect of this law varies depending on when a notice or complaint is served. A three-day notice served on a Sunday or Monday of a week with no holidays will still expire in three days and an unlawful detainer may be filed by the end of the week. A notice that is served on the Friday before a Monday holiday, however, would not expire until the following Thursday.  For responding to the summons and complaint, all defendants will now have at least seven days to respond, with possible additional time depending on holidays. A response to a summons and complaint personally served on the Friday before Thanksgiving would be required until the Tuesday after Thanksgiving – 11 days.

The law, however, did not change all the unlawful detainer deadlines.  The new language was not inserted into subsection dealing with three-day notices to quit without opportunity to cure.  Cal. Code Civ. P. § 1161(4).  The new language was not inserted into the post-foreclosure and other similar unlawful detainer actions.  Cal. Code Civ. P. § 1161a.  The new law does not affect tenancies at will.  Cal. Civ. Code § 789.  The new law does not affect 30/60 day termination notices.  Cal. Civ. Code § 1946, 1946.1.  There are still shortened times for discovery.  Cal. Code Civ. P. §§ 2030.020(c); 2031.020(c) 2033.020(c); 2025.270(b).  The time for the cut-off for discovery remains five days before trial.  Cal. Code Civ. P. § 2024.040(b)(1).  The five days’ notice for summary judgment and discovery motions have not changed.  Cal. Code Civ. P. §§ 1170.7, 1170.8.  Most importantly for plaintiffs, the right to a trial within 20 days of the case being at issue has not changed.  Cal. Code Civ. P. § 1170.5(a).

Finally, the law does not address the days before service is complete when service is made by other than personal service. When service is completed by substitute service or by “nail and mail,” a certain amount of days must elapse before service is deemed complete. The statute does not address how to count those days. Calendaring these time periods may be tricky, as some of the days may be counted as calendar days, and other days may have to exclude weekends and judicial holidays. An appellate decision may one day clarify the calculations, but for now, be sure to calendar all judicial holidays so you do not accidentally file a complaint or request default too early. Now, a day may not be “a day” in the world of unlawful detainers.   

Michael G. Olinik is founder of The Law Office of Michael G. Olinik.