CCP 1174.2 – Substantial Breach of the Warranty of Habitability in California

 

California Code of Civil Procedure 1174.2 discusses the substantial breach of the warranty of habitability in California. Oftentimes, a tenant will raise “breach of the warranty of habitability” as a defense to an unlawful detainer action. If the tenant raises the warranty of habitability as a defense to an unlawful detainer, the court will need to determine whether or not there is a breach and if if the breach is substantial.

If the court finds a substantial breach of the warranty of habitability under CCP 1174.2, the court “(1) shall determine the reasonable rental value of the premises in its untenantable state to the date of trial, (2) shall deny possession to the landlord and adjudge the tenant to be the prevailing party, conditioned upon the payment by the tenant of the rent that has accrued to the date of the trial as adjusted pursuant to this subdivision within a reasonable period of time not exceeding five days, from the date of the court’s judgment or, if service of the court’s judgment is made by mail, the payment shall be made within the time set forth in Section 1013, (3) may order the landlord to make repairs and correct the conditions which constitute a breach of the landlord’s obligations, (4) shall order that the monthly rent be limited to the reasonable rental value of the premises as determined pursuant to this subdivision until repairs are completed, and (5) shall award the tenant costs and attorneys’ fees if provided by, and pursuant to, any statute or the contract of the parties. CCP 1174.2(a).

Alternatively, if the court finds no substantial breach of the warranty of habitability, then the tenant does not win based on habitability and judgment would be in the favor of the landlord. CCP 1174.2(b).

Substantial breach means the failure of the landlord to comply with applicable building and housing code standards which materially affect health and safety. CCP 1174.2(c).

What does all of this mean in simple terms? Basically, if a landlord is found to have substantially breached the warranty of habitability, the court may order the landlord to make repairs to the property. The court may order the tenant to pay a reduced rental rate less than the contract rate, until the breach is fixed. Normally the court gives the tenant 5 days to pay the reduced rate. If the tenant does NOT pay the reduced rate within 5 days, then judgment for the landlord. But if the tenant pays within the 5 days, then the court will generally award possession to the tenant.

The Law Office of David Piotrowski has a long history of success in winning eviction trials on behalf of the landlord. If you need help with an eviction in Southern California, contact us today. We represent landlords in eviction cases.

Be sure to check out our reviews! We look forward to serving you. We offer a free consultation on most cases.

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What Is the Next Step After Receiving an Unlawful Detainer Judgment for Possession of the Property in California?

 

What is the next step for landlords/plaintiffs after receiving an unlawful detainer judgment for possession of the property in California?

First off, congratulations on obtaining a judgment for possession of your rental property! This is a big step and you’re almost done with the unlawful detainer eviction process. Once you are awarded judgment for possession of your property, but before you can actually change the locks, there are still a few more steps that you must do in order to actually get possession back.

First, you want to apply for a “Writ of Possession” with the court. Depending on which court your case is located at, there is a good chance that you will need to file both a “Writ Application” and the “Writ of Possession.” These are two separate forms. You will also need to pay a filing fee to to court.

Once the court issues the Writ of Possession, you will need to take the original along with copies and fully completed sheriff instructions to the correct sheriff serving branch, along with the sheriff’s fee to execute on your Writ of Possession. The sheriff will process the Writ of Possession and will post a 5 day notice on the door to the property.

The sheriff will then schedule a date and time for the actual lockout and notify the landlord or the landlord’s attorney. The sheriff will NOT notify the tenant, and the tenant should NOT be informed of the actual date and time of the lockout for safety reasons. The sheriff lockout date will likely NOT be exactly 5 days after the sheriff posts the 5 day notice.

The landlord will meet the sheriff at the property at the designated date and time. It is the landlord’s responsibility to provide access to the property. The sheriff will not force his way in to the property. So, if the landlord does not have a key or believes the tenant may have changed the locks, the landlord should schedule a locksmith to meet at the property at the same time. The sheriff will enter the property and remove any remaining tenants.

Once the sheriff process has been completed, the landlord should immediately change the locks. This is the time when lawful possession returns to the landlord.

There is an additional process needed if the tenant leaves any personal property behind after the lockout takes place. This is the the topic of another blog post.

The Law Office of David Piotrowski has a long history of success in winning eviction trials on behalf of the landlord. If you need help with an eviction in Southern California, contact us today. We represent landlords in eviction cases, and we can help with the Writ of Possession process as well.

Be sure to check out our reviews! We look forward to serving you. We offer a free consultation on most cases.

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Did your Tenant Demand a Jury Trial in a California Unlawful Detainer Eviction Case?

 

Did your Tenant Demand a Jury Trial in a California Unlawful Detainer Eviction Case? Unfortunately, if your tenant meets certain requirements, they will have the right to a jury trial, even if your rental agreement says otherwise!

Section 16 of Article 1 of the California Constitution states that the right to a jury trial shall be preserved to the parties inviolate. The party demanding a jury trial in the unlawful detainer eviction case must deposit with the court a fee of $150. This fee can be waived if the party qualifies for a fee waiver.

California Code of Civil Procedure 631(f) describes circumstances in which a party will have waived their right to a jury trial. These include:

  1. By failing to appear at the trial.
  2. By written consent filed with the clerk or judge.
  3. By oral consent, in open court, entered in the minutes.
  4. By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation.
  5. By failing to pay the fee on time.

There are several aggressive tenant law firms in California, especially in Los Angeles county and the bay area that will automatically demand a jury trial and will file and serve their jury demand at the beginning of the case, at the same time they file their Answer. This is unfortunate for California landlords, but it is something the aggressive tenant law firm will do in almost every single unlawful detainer case because they know a jury trial will cost the landlord a lot of money and there is uncertainty that goes with a big trial. These tenant firms hope that the looming jury trial will cause a better settlement, meaning more money paid to the tenant to get them to move out. Interestingly, when these tenant firms demand a jury trial, they often couple it with a settlement offer of several thousand dollars, even when the tenant owes the landlord thousands of dollars in past-due rent.

The Law Office of David Piotrowski has success in winning eviction jury trials on behalf of the landlord. If you need help with an eviction in Southern California, contact us today. We represent landlords in eviction cases, including jury trials. Don’t try to handle a jury trial yourself as a landlord. They are not easy.

Be sure to check out our reviews! We look forward to serving you. We offer a free consultation on most cases.

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California Unlawful Detainer Default Judgment for Money – CCP 585(b)

 

After obtaining a default judgment for possession of the property in an unlawful detainer case in California, landlords may wish to attempt to obtain a default judgment for money as well, which may include, for example, the unpaid rent. I discuss default judgments for money in an earlier post, as well as outline the difficulty in actually getting the tenant to pay the landlord, even with a money judgment in place. This article will expand on the discussion of obtaining a money judgment by default against a tenant.

Before going further, it is important to emphasize again that the landlord’s first goal is to obtain possession of the property as quickly as possible. Each day that the tenant remains in the property is more lost rent/income to the landlord. Once the landlord has possession, and assuming the tenant has not responded to the case, the landlord can then try to get a default money judgment by utilizing California Code of Civil Procedure 585(b).

Landlords who want a default money judgment in an unlawful detainer case must provide proof of the claims in a default hearing under CCP 585(b). In proving damages, the landlord needs to establish a “prima facie” case to obtain judgment. The preferred way to go about proving the landlord’s case in these circumstances is through the use of declarations rather than personal testimony. Declarations under this scenario are permitted by CCP 585(d). Declarations are the preferred method because they are usually faster than scheduling a court day.

The following information should be included in the landlord’s declaration:

  • The property address
  • Date when the notice to quit were served and date when the notice expired
  • Date the unlawful detainer complaint was filed
  • Date when the complaint was served
  • Fact that 5 days have expired since the unlawful detainer was served on the tenant (longer time is required if sub-served or if served by posting and mailing)
  • The amount of unpaid rent since the date the tenancy was terminated
  • The fair rental value of the tenancy at a daily rate and a calculation of holdover damages
  • Any costs incurred in bringing the unlawful detainer action to court
  • Any other pertinent or relevant information
  • The rental agreement, notice to quit, and proof of service of the notice are normally attached to the declaration
ccp 585(d)

ccp 585(d), ccp 585(b)

If the landlord has already obtained a default judgment for possession of the property, it may be a good time to get a default judgment for money as well. Contact the Law Office of David Piotrowski to assist you in requesting a money judgment under CCP 585(b) and CCP 585(d).

Once you obtain a money judgment against the tenant, it will then be time to try collecting on your unlawful detainer judgment.

The Law Office of David Piotrowski represents landlords throughout southern California and can assist with a tenant eviction.

Read Attorney Piotrowski’s “Landlord Best Practices and Eviction Overview” book.

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Tenant Filed a Frivolous Demurrer to Delay an Eviction – Help!

 

Tenants in California will sometimes file a frivolous demurrer to delay an eviction. Unfortunately, there is no way to have the demurrer stricken simply because it is frivolous. The demurrer will still need to be opposed in court. This will involve a written opposition to the demurrer and a court appearance.

One of the main reasons why tenants file demurrers in California unlawful detainer cases, even if it clear that the demurrer is frivolous, is to “buy extra time.” Tenants frequently set the hearing on the demurrer at the courthouse for about a month in the future. This gives the tenant an extra month living at the property while not paying rent to the landlord.

What’s a landlord to do if a tenant files a demurrer in an unlawful detainer? Fight back! A landlord can try to speed up the hearing on the demurrer and have the demurrer decided by the court within a few days rather than a month. The landlord still needs to oppose the demurrer motion, but may be able to substantially cut down on the delay by speeding up the demurrer hearing.

There may also be sanctions per California Civil Code 128.7 against a party who files a frivolous demurrer. When the party or attorney signs the demurrer, he or she is certifying the following:

  • The pleading is not presented primarily for an improper purpose;
  • Allegations and other factual contentions have evidentiary support;
  • Denials of factual contentions have evidentiary support; and
  • Claims, defenses and other contentions are warranted by existing law or by a nonfrivolous argument for extension, modification, or reversal of existing law or establishment of new law.

A violation of these rules may subject the party to sanctions.

Want more information on unlawful detainer demurrers? Read these articles:

The Law Office of David Piotrowski represents landlords throughout southern California and can assist with a tenant eviction.

Read Attorney Piotrowski’s “Landlord Best Practices and Eviction Overview” book.

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