California Legal Brief

The Rule of Gerard v. Cuevas is that a trial court cannot retroactively shorten a notice period under Code of Civil Procedure section 1987 to 91 minutes and then impose a terminating sanction when the defendant fails to appear, under circumstances where the original notice was untimely served and the court had not previously ordered shortened time.

Appeal from judgment after prove-up hearing in Superior Court, County of Los Angeles.

Defendant Appellant was Janet Cuevas — the residential tenant who was sued for unlawful detainer for failure to pay rent.

Plaintiff Respondent was John J. Gerard, Jr., as Trustee of the Gerard Revocable Marital Trust Agreement — the landlord who served the 3-day notice and sought possession of the premises.

The suit sounded in unlawful detainer for failure to pay rent. [No cross-claims described.]

The key substantive facts leading to the suit were that defendant leased a single-family residence in Covina for $3,600 per month under a written lease that converted to month-to-month tenancy. On April 26, 2024, defendant was served with a three-day notice to pay past-due rent of $6,890 or quit. Defendant failed to pay the unpaid rent and continued in possession after expiration of the notice period.

The procedural result leading to the Appeal: The trial court struck defendant's answer and entered default judgment in favor of plaintiff, ruling that defendant failed to comply with a notice to appear at trial served only four days before trial commenced, after the court retroactively shortened the statutory 10-day notice period to require defendant's appearance with only 91 minutes' notice.

The key question(s) on Appeal: 1. Whether the trial court abused its discretion by retroactively shortening the notice period under section 1987 to 91 minutes without good cause. 2. Whether striking the answer as a terminating sanction was an abuse of discretion and unauthorized under section 1987.

The Appellate Court held that the trial court abused its discretion by failing to prescribe a shorter time before demanding compliance with an untimely notice to appear, and by issuing a terminating sanction that deprived defendant of her constitutional right to jury trial, where defendant had not been subpoenaed, the notice was served only 3 days before trial without court order shortening time, and no lesser sanctions were attempted.

The case is inapplicable when the defendant has engaged in a pattern of willful misconduct or abuse, when proper notice periods are followed with court orders shortening time made prospectively rather than retroactively, when defendants are properly subpoenaed, or when lesser sanctions have been tried and failed.

The case leaves open what constitutes "good cause" for shortening notice periods under section 1987 beyond the 91-minute timeframe found abusive here, and whether other terminating sanctions might be available under the court's inherent authority in cases involving more egregious misconduct patterns.