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However, in an appeal from the default judgment, the tenant can
argue that the unlawful detainer complaint failed to state a cause
of action because it did not attach a valid notice to quit. (See Kim
v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282 [“On
appeal from the default judgment, ‘[a]n objection that the
complaint failed to state facts sufficient to constitute a cause of
action may be considered.’”]; see also City of Alameda v. Sheehan
(2024) 105 Cal.App.5th 68, 75 (Sheehan) [service of a valid three-
day notice to pay rent or quit is a prerequisite to an action for
unlawful detainer].) But as discussed, a possession-only
judgment is not appealable where the landlord’s claims for
damages have not been resolved. Therefore, the only avenue of
relief available to a tenant in this situation is to file a petition for
writ of mandate in the appellate division of the superior court (or
in the court of appeal for an unlimited civil case).
Cepeda at oral argument expressed his concern that a
petition for a writ of mandate is not an effective remedy because
review of writ petitions is discretionary and writ petitions are
rarely granted. Cepeda is correct that most petitions for writ of
mandate are denied. (See Omaha Indemnity Co. v. Superior
Court (1989) 209 Cal.App.3d 1266, 1271 [“Approximately
90 percent of petitions seeking extraordinary relief are denied.”].)
However, as the Supreme Court explained in Powers v. City of
Richmond (1995) 10 Cal.4th 85, 113 (Powers), the argument that
appellate review by filing an extraordinary writ petition “is
inherently less effective than a remedy by direct appeal because
issuance of the extraordinary writs is discretionary whereas
direct appeal guarantees a decision on the merits . . . betrays a
serious misunderstanding of the discretionary character of
extraordinary writs.”