Proper Plaintiff 1.

.10 In a UD case in accordance with CCP367, every action must be prosecuted in the na me of the real party in interest; CCP1161(1) only proper plaintiff may bring the action and CC2322 an agent cannot sue in their own name. CC 2322 states an agent, such as the property manager, cannot sue in his or her own name even if the age nt has been given a power of attorney. This is reiterated in the California Judg es Bench Guide section 31.13. It seems such an issue would be best raised on dem urrer - {the person who filed the pleading does not have the legal capacity to s ue [CCP 1165, 430.10(b)]}, Only the proper plaintiff, the landlord or successor in estate to the landlord ( see CCP 1161(1)), may bring action. See CCp 1165, 369. An agent, such as the pro perty manager, cannot sue in his or her own name (see CC 2322) even if the agent has been given power of attorney (see Drake v Superior Court (1994) 21 CA4th 18 26, 1831, 26 CR2d 829). The UD complaint must state the plaintiffs capacity and standing to sue, or the c omplaint is subject to a special demurrer. [CCP 1165, 430.10(b).] Because pleading rules require that the plaintiff has the right to possession (i.e., is the real party in interest), only the owner or the successor in estate to the owner is a proper plaintiff to bring the action. [CCP 1165, 367.] However, a property management company with a written agreement that includes an assignment of the right to possession may sue in its own name for possession wi thout joining the owner. [See CCP 369(a)(3); National Reserve Co. of Am. v Metrop olitan Trust (1941) 17 C2d 827, 831.] However under CCP 369(a)(3), a person with whom a contract is made for benefit o f another may sue without joining as a party the person for whose benefit the ac tion is prosecuted. Therefore, a management company that has a written agreement with the owner to sign the lease, collect the rent, maintain the property, and sue for possession may probably sue without joining the owner. Corporations, unincorporated associations, and partnerships must be represented in court by licensed attorneys and may not appear through nonattorney agents or as self-represented litigants. [See Merco Constr. Engrs, Inc. v Municipal Court ( 1978) 21 C3d 724, 730731; or appear in pro per (Say & Say, Inc. v Ebershoff (1993 ) 20 CA4th 1759, 1767; Albion River Watershed Protection Assn v Department of For estry & Fire Protection (1993) 20 CA4th 34, 37.] Similarly, trustees of trusts a nd holders of a power of attorney must appear through attorneys. [See Ziegler v Nickel (1998) 64 CA4th 545, 548549; Drake v Superior Court (1994) 21 CA4th 1826, 1831.] An unincorporated association must also be represented in court by a licensed a ttorney. See Albion River Watershed Protection Assn n v Department of Forestry & Fire Protection (1993) 20 CA4th 34, 37, 24 Cr2d 341. See also Bus & P C 6125 re quiring active State Bar membership as a prerequisite to the practice of law in California. Only the real party in interest may appear in pro per. Generally, the judge shou ld not permit a property manager, a representative of the management company, or even the spouse or relative of the owner who is not an attorney, to appear pro per. The problem may be dual of not having the real party in interest and of hav ing a nonattorney appear for a business entity. However, if the management compa ny has entered into the lease in its own name and has right to possession under the management agreement, it may have right to bring the action in its own name. 31.12 There must be a landlord/ tenant relationship between the plaintiff and the def endant. See Marvell v Marina Pizzeria (1984) 155 CA3d Supp 1, 5, 7-22, 202 CR 81

8. The purchaser of property is not a lessor or the successor in interest of the lessor when the seller has reserved lessor s rights as a part of the sale. Comm onwealth mem., Inc v Telephase Soc y of Am. (1976) 63 CA3d 867, 871, 134 CR 58. Judicial Tip: Simply being the resident manager or mangement commpany for the la ndlord, or holding a written power of attorney, does not give an agent authority to sue in his or her own name or to make appearances in court for the pro per p lantiff. Judges should not sanction the unauthorized practice of law by allowing a nonattorney family member or apartment manager to appear on behalf of the pro per plantiff. 2. Title at Issue 4.11 A tenant may raise the question of title to the property as an affirmative defen se to a UD action following a landlords quiet title action against the tenant. [S ee Greenhut v Wooden (1982) 129 CA3d 64, 6970.] A title defense is also available in a CCP 1161a UD action (eviction following the sale of property). The issue be fore a UD judge, however, is limited to determining who is the owner of record. A UD action generally is an unsuitable forum for trying complicated ownership is sues because of its summary nature. [See Mehr v Superior Court (1983) 139 CA3d 1 044, 1049.] Unlawful Detainer proceedings are summary proceedings. As such, the court is no t equipped to handle lengthy disputes over title and ownership. As a result, Ca lifornia case law suggests that unlawful detainer courts cannot deal with title disputes. This does not mean, however, that title is presumed to be proper wit h the plaintiff who brings an unlawful detainer action to recover possession. I ndeed, the Plaitniff must still show that it is the real party in interest (has standing to pursue the unlawful detainer) by demonstrating it has a right to pos ssession. The general Civil Code provisions related to proper parties in proceedings fully apply to unlawful detainers. CCP 1165. The plaintiff must be the real party in interest with respect to the claim sued upon. CCP 367, Dino v. Pelayo (2006) 14 5 CA4th 347, 353. The real party in interest is the person who holds title to t he claim or property involved. Gantman v. United Pac. Ins. Co. (1991). In unla wful detainer actions the plaintiffs right to possession is what qualifies the pl aintiff as the real party in interest. CCP 367, 1166(a)(2). While it may be true that title disputes cannot be litigated in summary unlawful detainer proceedings. Matters that cannot be raised by cross-complaint can, h owever, be pursued in an independent civil action. And where an unlawful detain er defendants civil suit raises title issues, the court may either stay the unlaw ful detainer action or order it consolidated with the general jurisdiction matte r. Wilson v. Gentile (1992) 8 CA4th 759, 761. A stay of the unlawful detainer action is appropriate because if the tenant prevails on the claim of title it w ill defeat the landlords right to recover possession of the premises. Id. at 761 . Accordingly, where landlord and tenant are litigating title in an independen t civil action and an unlawful detainer is simultaneously pending between them, the trial court has power to stay the unlawful detainer action. Asuncion v. Sup er. Ct. (1980) 108 CA3d 141. Indeed, the Court of Appeals, in Asuncion held tha t it may stay an unlawful detainer proceeding pending the resolution of the inde pendent title action. The court held that it can: Stay the eviction proceedings until trial of the fraud action, based on the auth ority of Code of Civil Procedure 526 which permits a preliminary injunction to p reserve the status quo on such grounds as irreparable injury, multiplicity of ac tions, or unconscionable relative hardship. Id. at 146; citing Continental Bakin g Co. v. Katz (1968) 68 Cal. 2d 512, 528. 3. Demurrer 6.01 A tenant has the right to demur to an unlawful detainer (UD) complaint. [See CCP

1170.] A demurrer must be filed within 5 days after service of the summons. [See CCP 1167, 1167.3, 1170.] The statutes governing UD actions do not provide for a shortened period of notic e of hearing on a demurrer (as is the case for both a motion to quash and a summ ary judgment motion). Therefore the notice must specify a hearing date that [see CCP 1005(b); CRC 3.1320(c)(d)]: Conforms with CCP 1005served and filed at least 16 court days before the hearing date, with 5 calendar days added if the places of mailing and destination addres s are both in California; and Is not more than 35 days after filing or on the first available date thereaf ter. However, for good cause you may order the hearing held on an earlier (or later) date and may prescribe appropriate notice. [See CRC 3.1320(d).] After you rule on the demurrer, the parties have only 5 calendar days, rather th an the usual 10 days, to answer or amend. [See CCP 1167.3; CRC 3.1320(g).] The ti me within which an answer must be filed runs from the date on which notice of th e courts decision on the demurrer is served, unless the defendant waives notice i n open court and the waiver is entered in the minutes. [See CCP 472b, 1019.5.] If the defendant fails to answer, you may enter a default. [See CCP 586(a)(2).]