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.

Posted in Evictions | Tagged , , , , , , , , , , , , | Comments Off on Did your Tenant Demand a Jury Trial in a California Unlawful Detainer Eviction Case?

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.

Posted in Evictions | Tagged , , , , , , | Comments Off on California Unlawful Detainer Default Judgment for Money – CCP 585(b)

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.

Posted in Evictions | Tagged , , , , , , , , | Comments Off on Tenant Filed a Frivolous Demurrer to Delay an Eviction – Help!

CCP 1179a – Unlawful Detainer Actions Receive Precedence Over Other Actions

 

California Code of Civil Procedure 1179a, also known as CCP 1179a, gives precedence to unlawful detainer eviction cases over other civil actions. The exact wording of CCP 1179a states:

In all proceedings brought to recover the possession of real property pursuant to the provisions of this chapter all courts, wherein such actions are or may hereafter be pending, shall give such actions precedence over all other civil actions therein, except actions to which special precedence is given by law, in the matter of the setting the same for hearing or trial, and in hearing the same, to the end that all such actions shall be quickly heard and determined.

In normal language, what this means is that eviction (unlawful detainer) cases receive priority and preference in the courts. Instead of taking a year or more to resolve as many civil cases normally take, as a result of CCP 1179a, an unlawful detainer case can be resolved in 1-3 months on average, even if the defendant/tenant fights the case.

“As part of the general statutory plan to provide for speedy disposition of unlawful detainer actions, the trial thereof is entitled to unqualified preference in trial setting.” Mobil Oil Corp. v. Superior Court (1978, Cal App 2d Dist) 79 Cal App 3d 486.

Court priority in an unlawful detainer case will only occur so long as possession is still in issue. This means, if the defendant/tenant moves out during the pending unlawful detainer case, then, if the plaintiff/landlord wanted to pursue the case, the unlawful detainer action would be converted to a normal civil case and would no longer receive priority on the court’s calendar.

Read David Piotrowski’s “Landlord Best Practices and Eviction Overview” book. If you need help with an eviction, contact us today. We only represent landlords in eviction cases. Also, be sure to check out our reviews! We look forward to helping you. We offer a free consultation for landlords on most cases.

Posted in Evictions, Los Angeles Estate Planning | Tagged , , | Comments Off on CCP 1179a – Unlawful Detainer Actions Receive Precedence Over Other Actions

Basic Eviction Overview and Outline for California Unlawful Detainers

 

The general process and overview of a California unlawful detainer (eviction) case is as follows:

  1. Prepare and serve a termination notice on the tenant (for example, a 3 day, 30 day, or 60 day notice of termination)
  2. Prepare, file and serve the unlawful detainer summons, complaint, and supporting documents on the tenant
  3. Serve a “prejudgment claim of right to possession” on all unnamed occupants per California Code of Civil Procedure 415.46
  4. Wait the required time period to see if the tenant responds. If the tenant does not respond, request a default and judgment. If the tenant responds, proceed to the next step. The most common tenant response is the filing of an Answer (the tenant could also file a demurrer, motion to strike, or another document)
  5. If the tenant filed an Answer, the next step for the landlord is to file a request for trial and wait for a trial date
  6. Attend the trial and present your case
  7. Assuming the landlord wins the case, apply for a Writ of Possession with the court
  8. Once the Writ of Possession is issued by the court, submit the original Writ, along with sheriff instructions, to the correct sheriff branch
  9. Wait for the sheriff to schedule the lockout. Plan to meet the sheriff at the rental unit at the designated date and time to regain possession of the property and change the locks

These general rules do not apply in all cases, and there are additional and different steps that apply in some cases. Landlords should consult with their attorney to determine the proper steps for their individual unlawful detainer eviction case in California.

Read David Piotrowski’s “Landlord Best Practices and Eviction Overview” book. If you need help with an eviction, contact us today. We only represent landlords in eviction cases. Also, be sure to check out our reviews! We look forward to helping you. We offer a free consultation for landlords on most cases.

Posted in Evictions | Tagged , , , , | Comments Off on Basic Eviction Overview and Outline for California Unlawful Detainers