Prejudgment claim for possession

Kimball,Tirey&St.JohnLLP 


Prejudgment Claims: What are they and when should they be used? 

Ted Kimball, Esq. 

Revised October 2016 

When an unlawful detainer lawsuit is filed in California, every adult residing in a property has the 
right to be heard in court. This is true even if the person is not a named resident, is not an 
authorized occupant, and even if the person is unknown to the landlord. 

If an adult residing the premises was not named in the unlawful detainer lawsuit, that person 
can delay the lockout by filing a “third party claim of right to possession,” otherwise known as an 
Arrieta Claim, right before the lockout, causing a delay of at least two weeks. 

A last minute third party claim can be avoided by serving a “prejudgment claim of right of 
possession” form. It is served when the unlawful detainer complaint is served. A prejudgment 
claim of right of possession form alerts all unnamed occupants of the property that an eviction 
action has been filed, and that they have the right to be heard and to defend against the 
eviction. An unnamed occupant who wants to fight the eviction must complete the prejudgment 
claim form and file it with the court. Unnamed occupants rarely file a prejudgment claim form 
because if they do, they will automatically be named as an additional defendant in the unlawful 
detainer lawsuit. If a prejudgment claim of possession has been served, and the unnamed 
occupants do not complete and file the prejudgment claim form with the court, the unnamed 
occupants lose their rights in the property and their right to try to assert any tenancy rights (such 
as an Arrieta Claim mentioned above) prior to the lockout. 

If a prejudgment claim form is not served, and if an unknown occupant files a last minute third 
party claim right of possession, the lockout will not occur as scheduled. Instead, the court will 
set a hearing to determine whether the claimant should have been named as a party to the 
unlawful detainer action. 

At the hearing, if the claimant is found to be legitimate, the court could require the landlord to 
start over again with the eviction process, requiring the claimant be named as an additional 
defendant. If the claim is denied, the Sheriff will continue with the lockout. 

Filing a prejudgment claim can delay the eviction process by up to 5 days, but only if all of the 
named defendants are personally served with the complaint. This is because prejudgment 
claimants have ten days to respond, whereas personally served named defendants only have 
five days to respond. A prejudgment claim will not delay the eviction process if one or more of 
the named defendants cannot be personally served, and are instead served by subservice, or 
posting and mailing. 

A prejudgment claim should be seriously considered if there is any suspicion of unauthorized 
occupants. A lot of guest activity and/or unknown people seen in the unit are some indications 
that there may be unauthorized people living in the unit. A prejudgment claim should also be 
filed in post foreclosure eviction cases, when the new owner will probably not know who is 
residing in the property or in cases where there is no onsite management staff (such as single 

.
family homes or condominiums) where the chances of an unauthorized or unknown occupant 
are even greater. 

Due to the potential issues associated with not filing a prejudgment claim, many of our clients 
have requested that their cases be designated “automatic prejudgment claim” which means a 
prejudgment claim is served with all of their eviction cases. If you have any questions about 
whether your cases are already designated as “auto prejudgment claim” or if you would like your 
eviction cases to be designated “auto prejudgment claim,” please contact any KTS employee for 
assistance. 

Kimball, Tirey & St. John LLP is a full service real estate law firm representing residential and commercial 
property owners and managers. This article is for general information purposes only. Laws may have 
changed since this article was published. Before acting, be sure to receive legal advice from our office. If 
you have questions, please contact your local KTS office. For contact information, please visit our 
website: www.kts-law.com. For past Legal Alerts, Questions & Answers, and Legal Articles, please 
consult the resource section of our website. 

© 2016 Kimball, Tirey and St. John LLP