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.
