Unlawful Detainer
What You Can Expect At An Unlawful Detainer Trial
Posted by: Kenny Tan
June 27, 2011
at an unlawful detainer trial.
(If you're represented by an attorney, your attorney would've hopefully briefed you on what to expect at trial.)
When the trial date is set and if it's a court and not jury trial, you should show up at the place and time as given by the notice sent by the court.
Usually there's a calendar posted either in the hallway or on the department's door. Read it and find out what number your case has been assigned on the list. Walk up to the department clerk and tell her or him your number and she would check you in. Take your seat and wait for the judge to take the bench and call your case. The wait could be 15 to 20 minutes or an hour depending on the number of cases on calendar and what number you have.
Usually the judge or the clerk will make the roll call and find out who is and isn't here. Every one will take an oath agreeing to tell the truth. Just sit in the crowd and wait for your case is called.
When your case is called, if the you're the landlord and the tenant no-shows, you can proceed by default prove-up. You'll still have to present your evidence but it's simply abbreviated. If you're represented by an attorney, usually he or she will make an offer of proof - he or she will simply your expected testimony will be if called to testify. When he or she completes making the offer of proof, you'll be asked, "if you're called to testify, is that your testimony?, and you'll say "Yes.". That's the end of it.
If the case is contested, the court will take testimony from both sides. The landlord will present his case and the court will allow the tenant to ask the landlord questions. Then the tenant may present his evidence if she wishes. In the end, the court will make a render a judgment, whether for plaintiff or defendant.
The trial usually lasts less than 30 minutes, more probably between 10 to 15 minutes.
About The Author: The Law Offices of Kenny Tan is an eviction attorney who routinely represents clients at unlawful detainer trials in all of California
How Important Is It To Have A Registered Process Server Serve The 3-Day Notice On Your Tenants In An Eviction Lawsuit?
Posted by: Kenny Tan
June 12, 2011
Does the law require you to hire a registered process server to serve the 3-Day notice? No it doesn't. Even the landlord himself may serve the 3-Day Notice on the tenant if he knows what to do.
So..... Why then a registered process server? Because having a registered process server serve a 3-Day notice has its advantages. It's well worth it for the $60-75 that you pay them to do it.
For one thing, service Is presumed to be valid if a properly executed proof of service is signed by the registered process server. Recently, the California Second Appellate District so held. (see Palm Property Investments, LLC v. Yadegar (May 2011) In that case, the landlord presented at trial a proof of service by the registered process server but didn't call him to testify, after the landlord rested, the tenant moved for judgment arguing that the landlord failed to meet his burden of proof that the 3-Day Notice To Pay Rent Or Quit had been properly served - and therefore the unlawful detainer was not valid. The Court of Appeal reversed the trial court. So we now know for sure that if you represent the landlord, you don't have to call - and pay- the registered process server to attend trial. All you need to do is to have a proof of service signed by him admitted into evidence. That can be easily done as long as you lay proper foundation for business records exception.Also, A Proof of Service by a registered process server is given more weight than a self-serving testimony by the tenant. You'll find that most judges tend to believe the proof of service over the live testimony of the tenant. A tenant just can't say," I wasn't served" and expect the judge to believe him. Not even jury will believe the words of the tenant over that a neutral.
Now, if it is the landlord himself that's served the 3-Day Notice, then it is a more difficult decision for the trial court as both parties are biased in their testimony and motivated to lie.
There's much point in asking a friend to serve 3-Day notice because (1) he may not necessarily be unbiased because he's your friend and the court may not find him to be completely impartial, and (2) you can't rely on the proof of service signed by him and not call him to testify.
The bottom line - Is it worth saving that $60-75? What about the inconvenience to your witnesses to have to attend trial? Also what if you or they would have to be out of town and can't attend trial and trial would have to be continued for that reason.
What Can You Do To Keep Possession Of The Property After Losing In An Unlawful Detainer Trial?
Posted by: Kenny Tan
May 29, 2011
Whether you're a tenant or an owner whose home has just been foreclosed by the lender, if you've been representing yourself and are not aware of your options, there are two laws you may avail yourself of to keep possession - Code of Civil Procedure 1176 and 1179.
If you believe the trial court has made a reversible error in awarding judgment to the plaintiff (landlord/lender), you can file a notice of appeal to challenge that judgment. But filing that appeal alone will not stay the enforcement of judgment. If you do nothing else, the writ for possession can be issued and Sheriff can go out there quicker than you'll know to post the notice to vacate.
Whatever options you elect, unless you race to the court tostart the process before the notice to vacate is posted, you're too late and there's nothing the court can do to keep you in house even if there was an error.
It's hard to say how quickly the Sheriff will go out there to post the notice to vacate. In theory, the plaintiff can get the writ issued the same day the judgment is entered, bring the writ to the Sheriff's office the same day, and Sheriff can go out there to post it the next day. But I've never seen it done that swiftly. The quickest I've seen is 5 days from the day the judgment is entered but there's no guarantee. Also, if you don't know how to do this yourself, you're going to need to hire an attorney to do it for you and he needs time to write the papers.
Do yourself a favor. If you want to do this, go see and retain an attorney RIGHT AWAY to file the necessary paperwork for the appeal and CCP 1176 motion if you don't qualify for CCP 1179 (as is the case if it's a foreclosure UD case) or the CCP 1179 motion if you're a tenant getting evicted for non-payment of rent.
For either option, you must demonstrate extreme hardship if you lose possession of the property, you will need someone to write for you a very persuasive hardship declaration. It really varies from one judge to another how much hardship is enough, it's decided on a case by case basis. Even if you can convince the judge that you'd suffer extreme hardship, the judge is required by law to condition your keeping possession of the property upon your payment of reasonable monthly rental into the court until the appeal is decided if you file a 1176 motion. In the case of CCP 1179, the judge will essentially reinstate the lease (and avoid forfeiture) as if there had been no eviction but you must pay back all the arrears plus fees and costs.
As you can see, it can be done but not easy. You have to decide what's more important to you.
In the case of 1176 order, if you win the appeal and judgment is reversed, the rental you've deposited into the court goes back to you and the UD case continues from where it was left off. In other words, plaintiff doesn't get the rental unless you lose the appeal.
After Foreclosure: If You're Going To Serve The 3/60/90-Day Notice To Evict, Should You Wait Out The Full 90 Days Before You File UD?
Posted by: Kenny Tan
May 10, 2011
As an investor, most of the time you're clueless as to the actual number and status of the occupants that are still living on the premises. It's important to know that information because it affects the type of eviction notice you need to serve before you can go to court to file your unlawful detainer.
State law requires service of a 3-day notice to vacate for prior owners, 30-day notice for tenants or residents who's lived there for less than a year, and 60-day for a year or longer. The federal law under the Protecting Tenants After Foreclosure Act requires a minimum of 90 days' notice for bona fide tenants - tenants who have valid leases and pay fair market rent. Of course, the federal law preempts the state law.
Therefore, unless you're sure about who live there, the safest thing to do is to assume all 4 categories of occupants exist and serve a combined 3/30/60/90-Day notice (You don't have to serve 4 separate notices as long as you explain on the notice how each of these 4 periods of termination apply to each category of occupants so the recipients know how much time they have to vacate the premises).
After you've served the notice, should you wait the full 90 days - or the minimum 3 days, before you file your unlawful detainer.
Filing An Unlawful Detainer After 3 Days May Save You 87 Days... But What Are The Risks?
One of the risks is that you may have at least one person who's either a tenant at will or bona fide tenant living there and your unlawful detainer may be subject to dismissal because it was filed prematurely.
However, if you have no idea who's living there and have already found a buyer for your property, it might be worth the risk to file the unlawful detainer after 3 days and take a chance that no one comes forward to answer the unlawful detainer complaint in which case you may go by default judgment and recover possession of the property in as soon as 3 weeks from filing.
Also, even if an occupant files for bankruptcy, the bankruptcy may stay the litigation but may not toll the running of the 90-day notice because the notice had been given.
Occasionally you may come across impostors who don't have any standing to file a claim for possession but will do so for delays. These impostors may or may not dare to show up for trial. So if they no-show, you are going to prevail at trial anyway. Moreover, even if they show up, upon cross-examination, you may be able to prove that they're mere impostors, for instance they don't even any proof of living at the property despite their claims. For example, you would want to ask for utility bills under their names and to see their driver's licenses.
In order to justify the risks, you need to act swiftly in your unlawful detainer so that if you have to refile your unlawful detainer because it is dismissed the delays are not significant. In some situations, it may be worth it to move forward before the full 90 days.
How you make the decisions depends on who you are and your situations. Refling your unlawful detainer may cost you a little bit of extra time and perhaps several hundred dollars but may save you thousands if you're able to flip your property a lot sooner than 120 days or longer!
Landlords: What Should You Do When The Tenant Files For Bankruptcy After UD Judgment And Sheriff Scheduled a Lockout?
Posted by: Kenny Tan
July 18, 2010
You invested in a single family home. You rented it to a tenant for income. Its value has declined since you bought it. It is now upside down. The economy is bad and you're having a difficult time keeping up with the mortgage because you have 5 other properties that you've invested in that all had mortgages to take care of. So you decided to short sell this property. Luckily you're able to find a buyer to purchase it on a short sale which the lenders have approved. But you have just a little problem you have care of and your misery would be over --and so you thought.
Everyone is impatient and wanting to close the escrow the next day! Lender wants to get this acid asset off their portfolio. Buyer's closing escrow on a house they're moving out of into your house. You want to avoid paying one extra mortgage payment. You hired the cheapest eviction service you could find on the internet. You found one and thank your lucky star that your eviction service got you a default judgment for possession. Your eviction service informed you that sheriff had scheduled a lockout date. You made plan to have a locksmith show up at the time of lockout.
Then came the bad news. Bankruptcy. Your eviction service informed you that your tenant filed for bankruptcy one day before the lockout date. You ask: What happens next?Can I still evict the tenant?
Your eviction service told you there may be an automatic stay because of the bankruptcy which eviction must come to a stop -- for now. You ask: Do I need to wait until the bankruptcy is discharged or dismissed? Is there a legal procedure I can undertake to lift the automatic stay?
Your eviction service then told you that you can file a motion for relief from the automatic stay and said that would take a month. But you can't wait a month! So is there anything else you can do?
Yes, there is. California is a state that allows eviction to be completed in this situation notwithstanding the filing of bankruptcy. See CCP 715.050. But is there a preemption problem since state law is in conflict with federal law? There might be. But thus far, no federal appellate courts or the US Supreme court has taken up this issue. So it is uncertain at this point. What should you do? Should you call off the eviction? What if the sheriff has received notice from your tenant about the bankruptcy and is not inclined to go out there unless he receives an instruction to evict notwithstanding the bankruptcy (which they will follow as long as they receive instruction from you). But if you're concerned about the consequences of the violation of automatic stay. How severe is it? You don't know what to do. It's a dilemma, isn't it?.
So Much For Right To Discovery In Unlawful Detainer
Posted by: Kenny Tan
July 08, 2010
Things happen quickly in unlawful detainer action. While CCP provides for right to discovery in a UD action, you have to be diligent to protect that right.
Unlike a civil case, everything is on a fast-track in UD. Trial must be set within 20 days of the first filing of request for trial setting. Jury fees must be posted no later than 5 days before trial. You practically have to serve written discovery as soon as the case is issue. No time to waste. You can't even afford to give any extension without risking not getting your responses in time to prepare for trial. Court furlough and holidays make things worse. You don't have the luxury of service by mail. Everything has to be served in person to make sure you have sufficient time to file your motion to compel.
Judges appear surprised to see discovery motions filed in UD. Some aren't sure how best to rule on them. Some even make bad or wrong rulings just because they aren't accustomed to seeing them.
Gotta be diligent if you want to protect that right. And hope that you have the right judge to hear your motion and protect that right if the other side tries to deprive you of it.
When Is It A Good Idea To File An MSJ In A Unlawful Detainer Action?
Posted by: Kenny Tan
July 06, 2010
A motion for summary judgment requires a mere 5-day notice in a UD case. If successful, it eliminates a trial altogether, saving money and time, and certainly opportunity costs to the landlord. A landlord would rather not attend the trial at trial. Things may go wrong at trial. A simple technical defect on the 3-day notice, for instance, can cause the case to be dismissed and the landlord would have to start process all over again. It is a wonderful result to have not only for the happy client, but also for the attorney.
But how frequently does it get granted in a UD case? Actually more often than you think. But not every case is amenable for a summary judgment. Of course, there will always be judges who won't give you summary judgment even when there are no genuine triable issues.
How do you decide? Well, you should know your judge and opponent before you decide to spend the money and take a chance. There's not much downside to it except several hundred dollars for filing fees and attorney's fime to prepare the motion and attend the hearing.
