Unlawful Detainer (Eviction) Training

May 2009

 

 

Hot Topics in Unlawful Detainer1. Foreclosure: Large and small scale2. Section 8 Issues3. Self-Representation (Plaintiff’s And Defendants)4. Loan Modification

Example: Lancaster has highest foreclosure rate in Los Angeles County currently at 3.94% (LA County average is 2.00%

How does this affect Self-Help: May 2007 average of 5 UD litigants per day, December 2008 average of 8 per day, March 2009 average 12 per day

Eviction Proceeding to TrialComplaint Filed by Plaintiff(s)

Complaint Served on Defendant(s)Defendant(s) Respond

Plaintiff requests U.D. Trial date (pro per litigants usually miss this)Clerk sends out trial date to all parties

Parties proceed to trial

Judge rules for Plaintiff: Plaintiff obtains Writ of Execution, Takes instructions to Sheriff.

Sheriff posts Notice to Vacate (min. 5 days) and returns with locksmith for lockout

Judge rules for Defendant: Judge will make ruling on how much money is due, Plaintiff prepares and serves new notice on

Defendant, if Defendant pays within time period fine if not new UD Complaint is filed by Plaintiff—Tenants may be confused the second UD explain that they can come back with new UD as new answer will

be necessary

Eviction proceeding by DefaultPlaintiff files Unlawful Detainer Complaint

Plaintiff has Defendant Served

Defendant fails to answer within 5 days

Plaintiff enters Request for Default, Default, Writ of Possesion and Sheriffs Instructions with the Clerk

Clerk enters the default and transmits Sheriffs Instructions and Writ to Sheriff

Sheriff Serves 5 day Notice to Vacate

Sheriff returns with locksmith for lockout

Walking the line between advice and information

1. Keep litigant involved with the paperwork. If possible have litigant read the Complaint and circle/mark things they disagree with.

2. If litigant is unable to read/understand the Complaint go through the Complaint with the litigant using open ended questions (i.e. is this the correct address for the property vs. they put the incorrect address in here)

3. Make sure the litigant understands what their defenses are and can verbalize them (i.e. there are problems with habitability and what are they?)

4. We can explain what the Court is asking for but cannot tell a litigant “you cannot” do something. (Even if what litigant wants to do is incorrect).

How is the 3 day notice served?How is the 3 day notice served?CCP 1162CCP 1162

• 3 options

• A. Service on Defendant personally

• B. Service on a family member/person of suitable age and mailing to Defendant

• C. Posting on Defendant’s Door and mailing to Defendant

• Landlords often fail to do the step of mailing the Notice as well

Analyzing the UD ComplaintAnalyzing the UD Complaint

• Who is the Plaintiff? Seeing more and more Plaintiffs who are no longer the owner trying to sue for UD (i.e. no longer appropriate party after they lose the home trying to get “cash for keys”)

• Everything in the Complaint is supposed to be done without mistakes: This is the tradeoff for preferences in trial setting (i.e. 21 day rule). Defects can be fatal for Plaintiff depending on the bench officer.

• Lease Agreement Attached is it the same as what Defendant signed?

Not uncommon for there to be “two leases” that don’t match. Judges Not uncommon for there to be “two leases” that don’t match. Judges don’t like it if the Plaintiff is changing the original lease to better support don’t like it if the Plaintiff is changing the original lease to better support

the current Complaintthe current Complaint

• 3 day notice Expiration Date: A frequent mistake is that Plaintiffs will put in that the 3 day notice expired on the same date it was served this is impossible.

• Was the 3 day or other Notice served as Indicated in the Complaint

• Daily rate: No basis for calculation normal calculation methods are base rent/30 days=daily rate or base rent x 12 months/365 days = daily rate.

• Verification? Is it signed? If Plaintiff has not signed defense and if Plaintiff’s attorney has signed is there language in the verification stating “Plaintiff could not be found in the County.” If not it’s a defense and if Defendant can prove Plaintiff was in the County on that date it’s a defense CCP1166 & CCP466

• (Ex. Landlord lives in Los Angeles came out to fix Defendant’s heater on 01/01/09 and signs off on work order for handyman. Attorney files UD Complaint with Verification saying Plaintiff could not be found in the County)

Prejudgment Claim of Right to Prejudgment Claim of Right to PossessionPossession

• Served with the Complaint. It is the legal right of a tenant to assert a right to defend the UD action

• This is a right however it is not required (Many tenants are being told by the owner, process server, real estate agent that they MUST add themselves to the action when this is false. Plaintiffs and other Defendants may be interested in obtaining as many Defendants as possible to “Spread the cost out”).

• Doing the form adds them as a full Defendant

Prejudgment continued.Prejudgment continued.

• Prejudgment Claims must be filed within 10 days of the date of service.

• Once the prejudgment is filed there are 5 additional days for Defendant to answer

• 10 days + 5 days = 15 days

• Make sure litigants understand they are adding themselves as full Defendants to those originally named

Preparing the AnswerPreparing the Answer

• Have litigant read through the Complaint and mark areas of disagreement. If Plaintiff is unable to read or understand the Complaint help them through using open ended questions.

• Remember that a well-prepared Answer is basically a “blue-print” to the Plaintiff how to prepare a good Complaint. It is possible the current UD will be dismissed and refiled.

Basic ConsiderationsBasic Considerations

• Habitability? Standard 3(j) Attachment

• Has the Tenant Made Repairs and Properly Deducted from Rent which the Landlord refused to apply towards the rent?

• Has the Landlord accepted late rent in the past? Not available where landlord has served tenant with a notice that the intend to enforce no late payment provisions

DiscriminationDiscrimination

• What is discrimination• Race, Religion, Familial Status, Health Status. Litigant was

successful in a Prior UD against the Same Plaintiff. Litigant was successful in a Civil Suit Against the Plaintiff.

• Classic Example: I’m a tenant who slips and falls on rotten wood on a staircase in my apartment complex. I sue the owner in a Civil Case and recover $50,000.00. As soon as I am successful I am served with a 30 day notice to terminate tenancy.

• Another common Example: Ethnic makeup of my apartment complex is 30% African American, 50% Hispanic, 18% Caucasian and 2% Asian. A Korean landlord comes in and starts evicting African American and Hispanic Tenants. Within 4 months the ethnic make-up of the building is now 40% Asian.

What is Not DiscriminationWhat is Not Discrimination

• My landlord “doesn’t like me”

• I don’t get along with my landlord’s best friend

Remember Discrimination in terms of UD is much more limited than the general usage of the term

Was the notice properWas the notice properCCP 1161CCP 1161

• Was the type of notice proper? How long had the tenant been living there (30 day vs. 60 day notice) (90 days for Sec. 8)

• Was the notice filled out properly

• Was a proof of service done?

Special CircumstancesSpecial Circumstances

• Section 8

• Tenants in an Owner foreclosure (CCP 1161 and Civ. Code 2924.8)

• Mobile Homes (CCP 798)• Rent Control where available. 41 California cities/counties

have some form of rent control.

• Domestic Violence

UD TrialUD Trial

• What does the UD Plaintiff have to prove?The existence of a Contract, That Plaintiff sought to terminate it and

that the tenant is in possession (keys). For monetary damages additional elements on the prove-up

We always let litigants know that they are free to go and watch a UD trial so they can better understand the procedure

If the Defendant WINS: Judge makes a ruling as to the amount due, Plaintiff serves Defendant with new 3 day notice, if the Defendant pays within the time period fine if not new UD filed and process starts over

Trial ContinuedTrial Continued

• If the litigant LOSES at trial: Plaintiff must get a Writ of Possession issued, Clerk issues notice along with Sheriff’s Instructions to the Sheriff. Sheriff will post Notice to Vacate for 5 days. The Sheriff than sets a date for lockout and the Plaintiff must then arrange for a locksmith to be present at lock out to change the locks.

StipulationsStipulations

• If the parties agree (usually to a move-out date, amount of money to pay,etc…) they can sign a stipulation and have the Judge enter it

• If both parties uphold their “end of the deal” no further action

• If Defendant does not move or does not pay the Plaintiff has the Writ entered immediately

After JudgmentAfter Judgment

• Satisfaction of Judgment

• For a litigant who has lost in Court it is possible for a Litigant to pay off the balance due and have the Plaintiff sign a Satisfaction of Judgment.

• May be helpful in trying to rent an apartment when Eviction shows up on the credit and the Defendant can show they have a Satisfaction of Judgment.

Federal ProtectionFederal Protection

• Beyond the scope of what we do at Self-Help but may have resources that we can give Litigants to pursue on their own

• Bankruptcy

• Loan Modification through Federal Programs