Evictions Landlord Tenant Blog

Motion to quash service of summons in California

Motion to quash service of summons in California

California Code of Civil Procedure § 418.10 states that a defendant may file a Motion to Quash Service of Summons on the ground of lack of jurisdiction of the Court over him or her. The main grounds used are that the service on the defendant was defective as the Court does not acquire jurisdiction over a defendant unless proper service of the Summons and Complaint has been made.  This is so even though the defendant may be a resident of California.

A Motion to Quash Service is a “special appearance” meaning that it does not admit the Court’s jurisdiction over the defendant.

The law in California is well settled that once a defendant files a motion to quash service that the plaintiff has the burden of proving that the service was valid.

Once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court’s jurisdiction over the defendant. Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.

And the Courts in the State of California have ruled that a defendant is under no duty to respond to a defectively served summons until a plaintiff shows that service is valid.

And a defendant is under no duty to respond to a defectively served summons and may stand mute until a plaintiff makes a showing of the validity of the service to the satisfaction of the court. Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 111.

This is particularly so when the defendant was served by “substituted service” as the statutes allowing such service are strictly construed..

Statutory provisions for substituted service must be strictly complied with, and statutory conditions upon which such service depends will be strictly construed. Sanford v. Smith (1970) 11 Cal.App.3d 991, 998.

And the substituted service must be made at the address where the defendant currently lives, even service made at a close relative’s house can be ineffective.

Substituted service to estranged wife’s parents’ address in action against husband and wife for breach of restaurant equipment lease was ineffective despite parents’ address appearing on her driver’s license where wife had established separate legal household. Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416-1417, See also Bolkiah v. Superior Court, supra at 999.

And in an Unlawful Detainer action a Motion to Quash Service may still be filed even though the defendant may actually have notice of the lawsuit!

Even when the defendant tenants (and/or subtenants) actually received summons and complaint and otherwise have actual notice of the lawsuit, a motion to quash will lie if process was not served in a statutorily-authorized manner. Schering Corp. v. Super.Ct. (Ingraham) (1975) 52 Cal. App. 3d 737, 741.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.

Affirmative defenses to California unlawful detainers (evictions) , part one

Affirmative defenses to California unlawful detainers (evictions) , part one

There are numerous affirmative defenses available to a tenant to an unlawful detainer (eviction) proceeding in California.  But one of the first things that any tenant served with a three (3) day notice to pay rent or quit should do is closely examine the notice.  The notice must contain the following information:

1.  The exact amount of rent due.  If the amount is overstated the notice is fatally defective and will not support an eviction proceeding.  See Ernst Enter., Inc. v Sun Valley Gasoline, Inc. (1983) 139 Cal.App.3d 355, 359.  This does not apply to commercial tenancies.  But even with a commercial tenancy, a demand that exceeds 20 percent of the amount due is defective and will not support a UD judgment. See WDT-Winchester v Nilsson (1994) 27 CA4th 516, 534.

2.  It must not be served until after the stated amount of rent becomes due.  In other words it cannot be served on the date the rent is due.  See Lydon v Beach (1928) 89 CA 69, 74.

3.  It must have the entire street address of the premises, must have the name, address and phone number of the person to pay the rent to, as well as the days of the week and hours in which the rent may be paid.  If it does not state these items the notice is defective.

If the three day notice is defective the best course of action is probably to wait until an eviction proceeding is filed and then either use the defective notice as an affirmative defense in the answer, or file a demurrer to the complaint.

The landlord must wait the entire three days to allow the tenant to comply with the notice.  If the last day to comply is a Saturday, Sunday or Court holiday the tenant has until the end of the next business day to comply with the notice.

Once the tenant has been served with the Summons and Complaint they have five (5) calendar days to respond.  Court holidays are not counted in calculating the five days, and if the last day to respond is a Saturday, Sunday or Court holiday the tenant has until the end of the next business day to file a response with the Court.

The tenant may file the following pleadings in response to the eviction Complaint.

1.  An Answer.  The Judicial Council form Answer may be used, and must be verified as well;

2.  A Demurrer; and

3.  A Motion to quash service of the summons, or to stay or dismiss the action.

If an Answer is used affirmative defenses may be asserted including the following:

Breach of the implied warranty of habitability:

Every residential rental agreement has an implied warranty of habitability that is independent of the tenant’s obligation to pay rent.  See Green v Superior Court (1974) 10 Cal. 3d 616, 631 632; Fairchild v Park (2001) 90 Cal.App.4th 919, 927, 928.

This means that a landlord of residential premises must put the premises in a condition fit for human occupancy and must repair all subsequent dilapidations that render the premises untenantable.  The landlord’s duty to the tenant to provide habitable premises is nonwaivable.

A breach of the warranty of habitability is available as an affirmative defense for a tenant in a UD action for nonpayment of rent.  But it is not available in a UD action based on a 30-day notice to quit. Green v Superior Court, supra, 10 Cal.3d at 631; Knight v Hallsthammar (1981) 29 Cal.3d 46, 57.

Waiver of the three day notice to pay rent or quit:
 
 If the landlord waived, changed, or canceled a notice to quit, the tenant has an affirmative defense to a subsequent UD action.  For example, if the landlord accepts a partial payment of back rent after serving the tenant with a 3-day notice to quit, he or she may have waived the original notice. See EDC Assoc. Ltd. v Gutierrez (1984) 153 Cal.App 3d 167, 170.
Retaliatory eviction:
 
Residential landlords must not take any of the following actions in retaliation for the tenant’s exercising his or her legal rights:

A. Increasing rent,

B. Decreasing services, or

C. Causing a tenant to quit the rental property involuntarily.

A tenant may not waive his or her rights under the law.

A tenant has a valid affirmative defense if he or she can show that the landlord retaliated against him or her in violation of Civil Code § 1942.5.

In addition, both residential and commercial tenants have a common-law affirmative defense for retaliatory actions by the landlord.  See Barela v Superior Court (Valdez) (1981) 30 Cal. 3d 244, 251;

If the tenant proves retaliation by a preponderance of the evidence, he or she is entitled to a judgment of possession.  See S.P. Growers Ass’n v Rodriguez (1976) 17 Cal. 3d 719, 724.

The claimed retaliatory action must have occurred within 180 days of the tenant’s lawful exercise of rights.  Furthermore, the statutory defense may be used only once in a 12-month period.  No limit applies to the common-law defense of retaliatory eviction.  See Glaser v Meyers (1982) 137 Cal.App. 3d 770, 774.

A tenant who successfully defends a UD action on the ground of retaliatory eviction is entitled to recover both actual and punitive damages in addition to retaining possession of the property.

Landlord’s breach of the rental agreement:
 
 If the landlord materially breaches an express covenant in the rental agreement, the tenant has a valid defense to an unlawful detainer based on nonpayment of rent.  The tenant’s obligation to pay rent and the landlord’s obligations under the agreement are dependent covenants.  See Green v Superior Court (1974) 10 Cal. 3d 616, 634.
 
Breach of local licensing regulations:

When local licensing requirements are intended primarily for public protection, contracts within their purview that are executed between unlicensed persons are unenforceable as a matter of public policy.  See Espinoza v Calva (2008) 169 Cal.App. 4th 1393, 1400.

What this means is that if a landlord fails to obtain a certificate of occupancy for his or her rental units before entering into a rental agreement with a tenant, the rental agreement is unenforceable.  The tenant thus has a defense to an eviction based upon nonpayment of rent.  But this does not mean the tenant is entitled a judgment for possession, the defense only operates to bar the landlord’s recovery of rent based on the unenforceable agreement.  See Espinoza v Calva, supra at 1400.

Discrimination:

 If the landlord has discriminated against the tenant in violation of the laws or of the federal or state Constitutions, the tenant may assert discrimination as an affirmative defense against a UD action.  See Department of Fair Employment & Housing v Superior Court (2002) 99 Cal.App 4th 896, 899–902; Smith v Fair Employment & Housing Comm’n (1996) 12 Cal.4th 1143, 1155–1161, 1176, 1179; Marina Point, Ltd. v Wolfson (1982) 30 Cal. 3d 721, 724–726.
The use of affirmative defenses by a tenant in their answer to an eviction lawsuit is crucial as it is the only way that the tenant can have the Court hear their side of the story.

 

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in civil litigation in California Courts.  Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.

Affirmative defenses to unlawful detainers (evictions) in California

Affirmative defenses to unlawful detainers (evictions) in California

In part one of this blog post, several affirmative defenses were listed that may be used by a defendant in an unlawful detainer (eviction) proceeding.  This blog post lists the remaining affirmative defenses.

 Repair and deduct:
 
If a rental unit is dilapidated to the point of not being habitable, the tenant has the right to make repairs and deduct the costs from the rent or to vacate the premises without being liable for further rent, if the tenant

A.  Gives written or oral notice of the problem, and

B.  Waits a reasonable period of time for the landlord to make the repair.

Thirty days is presumed a reasonable time period, but a shorter notice period is acceptable when the circumstances justify it.  Repair-and-deduct rights may be exercised only twice in any 12-month period.  Additionally, repair costs may not exceed one month’s rent.

A residential tenant may successfully defend a UD action for nonpayment of rent on the ground that he or she properly invoked the repair-and-deduct remedy but the landlord failed to give proper credit.

Title at Issue:

 

 

A tenant may raise the question of title to the property as an affirmative defense to a UD action following a landlord’s quiet title action against the tenant. See Greenhut v Wooden (1982) 129 Cal. App. 3d 64, 69–70.  A title defense is also available in an eviction following the sale of property in a foreclosure.

The issue before a UD judge, however, is limited to determining who is the owner of record.  A UD action generally is an unsuitable forum for trying complicated ownership issues because of its summary nature.  See Mehr v Superior Court (1983) 139 Cal.App. 3d 1044, 1049.

Constructive Eviction:
 

 

The concept of a “constructive eviction” exists under the principle of a breach of the covenant of quiet enjoyment that is implied in every rental agreement.  A tenant may assert this ground as an affirmative defense when the landlord’s actions or omissions so interfere with the tenant’s right to “peaceful and beneficial possession” of the rental unit that the unit or a portion of it becomes uninhabitable.  Examples include:

A.  Extreme rain damage to one or more rooms of a unit caused by a leaky roof that the landlord refused to repair;

B.  Excessively noisy renovations at the premises at unreasonable hours; and

C.  Persistent harassment of the tenant by the landlord.

See Stoiber v Honeychuck (1980) 101 Cal.App 3d 903, 925–926; Clark v Spiegel (1971) 22 Cal..App 3d 74, 79–80.

Unlawful Influence to Vacate:
 

 

A tenant may affirmatively defend against a UD action on the ground that the landlord unlawfully influenced the tenant to vacate. A landlord may not engage in certain conduct with the purpose of influencing a tenant to vacate a rental unit. The conduct includes

A.  Theft or extortion in violation of applicable law.

B.  Willful threats, menacing conduct, or the use or threatened use of force (that would create an apprehension of harm in a reasonable person) that interferes with the tenant’s quiet enjoyment of the premises, in violation of Civil Code § 1927.

C.  A significant and intentional violation of Civil Code § 1954, which governs the circumstances under which a landlord may enter the rental unit.

Other Defenses:
 

 

Other defenses that may be applicable in certain cases include:

A.  Overpayment of rent, entitling the tenant to an offset.  See Minelian v Manzella (1989) 215 CA3d 457, 463 465;

B.  Tenant’s timely cure of a breach or lack of opportunity to cure a breach pursuant to a 3-day notice.  See Feder v Wreden Packing & Provision Co. (1928) 89 Cal.App. 665, 672;

C.  Landlord’s refusal to accept a timely tender of rent.  See Strom v Union Oil Co. (1948) 88 Cal.App 2d 78, 81;

D.  Breach of only an implied covenant by the tenant.  See Keating v Preston(1940) 42 Cal.App. 2d 110, 118 119;

E.  Landlord’s violation of the Subdivision Map Act. See Adler v Elphick(1986) 184 Cal.App 3d 642, 645 646;

F.  Landlord’s failure to install and maintain locks;

G.  Landlord’s failure to give the tenant required notice of demolition; and

H.  Landlord’s demanding “key money” to initiate or renew a commercial lease.

The use of affirmative defenses by a tenant in their answer to an eviction lawsuit is crucial as it is the only way that the tenant can have the Court hear their side of the story.  If the affirmative defenses are not listed in the answer it is extremely unlikely that a Judge would allow their use at trial.

 

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in civil litigation in California Courts. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.

The Protecting Tenants at Foreclosure Act of 2009

The Protecting Tenants at Foreclosure Act of 2009

The Protecting Tenants at Foreclosure Act of 2009

With the bursting of the housing bubble, many properties have gone into foreclosure all over the United States.  And many tenants have been shocked to discover that the property they have been renting and living in has been foreclosed on and they are expected to move out very quickly. The general rule in many states, including California was that after the foreclosure sale any lease entered into between the previous owner and another person was extinguished.  Eviction proceedings could be commenced very soon after the foreclosure sale.

However, a new federal law took effect recently that has changed all of that. Tenants who signed a lease with the previous owner of a property that has been foreclosed on now have the right under this new law in most cases to remain in the property until the remaining term of their lease.  And even tenants who do not have a lease with the previous owner are still entitled to a 90 day notice to vacate if they are considered a bona-fide tenant under the law.

The new law is called the Protecting Tenants at Foreclosure Act of 2009, Public Law 111-22, Title VII signed by President Barack Obama and effective May 20, 2009, and titled The Protecting Tenants at Foreclosure Act of 2009, Section 702 states that,

“(a) In General- In the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of this title, any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to–
(1) the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice; and
(2) the rights of any bona fide tenant, as of the date of such notice of foreclosure–
(A) under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease, except that a successor in interest may terminate a lease effective on the date of sale of the unit to a purchaser who will occupy the unit as a primary residence, subject to the receipt by the tenant of the 90 day notice under paragraph (1); or (B) without a lease or with a lease terminable at will under State law, subject to the receipt by the tenant of the 90 day notice under subsection (1), except that nothing under this section shall affect the requirements for termination of any Federal- or State-subsidized tenancy or of any State or local law that provides longer time periods or other additional protections for tenants.

(b) BONA FIDE LEASE OR TENANCY.—For purposes of this section, a lease or tenancy shall be considered bona fide only if— (1) the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant; (2) the lease or tenancy was the result of an arms-length transaction; and (3) the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit’s rent is reduced or subsidized due to a Federal, State, or local subsidy.”

Thus a tenant who entered into a lease with the previous owner before the notice of foreclosure has the right to remain until the end of their lease. The only exception is if the purchaser at the foreclosure sale intends to occupy the property as a primary residence, and even then a 90-day notice must be given.  And if a State or local law provides for a longer notice period then the tenant is entitled to the longer notice period.

However, the law provides a tenant must meet certain conditions to be considered a bona-fide tenant.  For instance, neither the previous owner or his spouse or child are bona-fide tenants, the lease must be the result of an arms-length transaction, and the rental amount must not be substantially less than fair mark rent for the property, unless the rent is reduced or subsidized due to a Federal, State or local subsidy.

UPDATE:

The provisions have now been extended until December 31, 2014.  See below.

Section 1484 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, approved July 21, 2010) amended PTFA, and extended the PTFA protections to December 31, 2014. Section 1484 of the Dodd-Frank Wall Street Reform and Consumer Protection Act also defined when “date of notice of foreclosure” occurs. Section 1484 provides in relevant part as follows: “the date of a notice of foreclosure shall be deemed to be the date on which complete title to a property is transferred to a successor entity or person as a result of an order of a court or pursuant to provisions in a mortgage, deed of trust, or security deed.

This new law provides a powerful tool for tenants caught up in the foreclosure crisis.  It allows them time to find another suitable place to live. And since Federal law supersedes State law no State Court can enter a Judgment in violation of Federal law.

In fact the author very recently prepared an ex-parte application for a Southern California law firm on behalf of their clients, a couple who were scheduled to be evicted on a Friday, the ex-parte application was presented to a California judge on Thursday afternoon, the day before the scheduled lockout.  The ex-parte application cited The Protecting Tenants at Foreclosure Act of 2009 and its provisions.  The ex-parte application was approved and the eviction was canceled.

 

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in civil litigation in California Courts.  Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.

Demurrer to Unlawful Detainer (eviction) complaint in California

Demurrer to Unlawful Detainer (eviction) complaint in California

A defendant in an unlawful detainer (eviction) proceeding in California may file a demurrer to the complaint. See Code of Civil Procedure § 1170. The notice period for a demurrer is not set forth in the unlawful detainer statutes, Sections 1159 through 1179a of the Code of Civil Procedure.

However, Section 1177 provides that all provisions of law contained in Part 2 of the Code of Civil Procedure (the ones applicable to regular civil actions) are otherwise generally applicable to unlawful detainer actions, unless other procedures are specified in the unlawful detainer statutes.

Since the unlawful detainer statutes do not provide for the timing of a hearing on a demurrer, the timing for demurrers is governed by Code of Civil Procedure § 1005, which requires 16 court days notice of the hearing on the demurrer, plus five calendar days for notice by mailing. Court days means Monday through Friday, except for Court holidays. A defendant who wishes to file a demurrer should contact the Court clerk and obtain a hearing date 4-5 weeks from the date of filing, not later than thirty five (35) calendar days, or the earliest date the Court clerk has available.

One of the first things that any tenant served with a three day notice to pay rent or quit in California should do is closely examine the notice. The notice must contain the following information.

1. The exact amount of rent due must be stated clearly on the notice. If the amount is overstated the notice is fatally defective and will not support an eviction proceeding. This does not apply to commercial tenancies. But even with a commercial tenancy, a demand that exceeds 20 percent of the amount due is defective and will not support a UD judgment.

2. It must not be served until after the stated amount of rent becomes due. In other words it cannot be served on the date the rent is due.

3. It must have the entire street address of the premises, state the time period for which the rent is overdue, must have the name, address and phone number of the person to pay the rent to, as well as the days of the week and hours in which the rent may be paid. If it does not state these items the notice is defective.

If the three day notice is defective the best course of action is to file a demurrer to the complaint.

The landlord must wait the entire three days to allow the tenant to comply with the notice. If the last day to comply is a Saturday, Sunday or Court holiday the tenant has until the end of the next business day to comply with the notice.

Once the tenant has been served with the Summons and Complaint they have only five (5) calendar days to respond. Court holidays are not counted in calculating the five days, and if the last day to respond is a Saturday, Sunday or Court holiday the tenant has until the end of the next business day to file a response with the Court.

It needs to be stressed that any missing or incorrect information in the three-day notice to pay rent or quit is grounds for a demurrer. If the thee-day notice is defective then the unlawful detainer complaint fails to state a cause of action and the demurrer should be sustained without leave to amend because the law cannot presume that a new and proper notice would be served and that the defendant would then fail to comply with a new notice. This means that the landlord must prepare and serve a valid three-day notice to pay rent or quit, wait the appropriate amount of time, and then file another complaint if the notice is not complied with.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.

Three-day notice to pay rent or quit in California

Three-day notice to pay rent or quit in California

A three-day notice to pay rent or quit in California is used by a landlord in order to demand that a tenant or tenants pay the rent that is overdue within thee days or vacate the premises. However, the law requires that the three-day notice be prepared and served correctly, and it must contain certain information. It also must allow the tenant the opportunity to cure the default in the payment of rent or vacate the premises.

One of the first things that any tenant served with a three day notice to pay rent or quit in California should do is closely examine the notice for defects. The notice must contain the following information.

The exact amount of rent due. If the amount is overstated the notice is defective and will not support an eviction proceeding. This rule does not apply to commercial tenancies. But even with a commercial tenancy, a demand that exceeds 20 percent of the amount due is defective and will not support a UD judgment. The notice for a residential tenant cannot demand any amount for a “late fee”. Almost all judges would consider any notice containing a “late fee” to be defective as late charges are not considered rent.

It must not be served until after the stated amount of rent becomes due. In other words it cannot be served on the date the rent is due. This means that if a lease or rental agreement, which virtually all due, states that the rent is due on the first day of the month the three-day notice cannot be served until the second day of the month at the earliest. If the second day is on a weekend or holiday then the tenant has until the next business day to pay the rent without being considered late.

It must have the entire street address of the premises, state the time period for which the rent is overdue, must have the name, address and phone number of the person to pay the rent to, as well as the days of the week and hours in which the rent may be paid. If it does not state these items the notice is defective.

And if the address given for the payment of rent does not allow for personal delivery then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property), or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure. So a tenant who cannot personally pay the rent because the address given is a post office box should mail the rent check, and get proof of mailing from the post office. That way the rent is considered paid on the date it is mailed.

And if the three-day notice period expires on a Saturday, Sunday or Court holiday then the tenant has until the next business day to comply with the notice.

If the three day notice is defective the best course of action is to wait until an eviction proceeding is filed and then use the defective notice as grounds for filing a demurrer to the complaint.

 

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in civil litigation in California Courts including unlawful detainers. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.

Opposition to Motion for Summary Judgment/Adjudication in California

Opposition to Motion for Summary Judgment/Adjudication in California

This blog post will outline the issues involved in preparing an effective opposition to a motion for summary judgment/adjudication in California.

A motion for summary judgment/adjudication in California is filed when a defendant contends the lawsuit filed by plaintiff has no merit and that there are no triable issues of material fact. It can also be filed by a plaintiff who contends that defendant has no defense(s) to the lawsuit and there are no triable issues of material fact.

The motion for summary judgment/adjudication can be made only after sixty (60) calendar days have passed since the general appearance of the other party, in other words 60 calendar days since the complaint has been filed, or the answer to the complaint has been filed.

The motion must be served and filed at least seventy five (75) calendar days before the hearing, and if the motion is served by mail an additional five (5) calendar days must be added to the notice period if the place of address is within the State of California.

Any opposition must be served and filed at least fourteen (14) calendar days before the hearing and must include a separate statement that responds to each of the material facts contended by the moving party to be undisputed.

For unlawful detainer (eviction) actions the motion may be made at any time after the defendant has filed their answer on five (5) calendar days notice. Summary judgment shall be granted or denied on the same basis as a regular civil motion for summary judgment.

Any opposition to a motion for summary judgment in an eviction proceeding may be made orally at the hearing, or if the opposing party wishes the Court to consider written opposition the opposition may be filed at least one (1) court day before the hearing with service made by personal delivery to the moving party, or overnight mail.

The Court must allow all parties to present oral argument at the hearing on the motion for summary judgment. See Brannon v. Superior Court (Crippen) (2004) 114 Cal.App. 4th 1203, 1211.

While many motions for summary judgment are made many are not granted since the motion can only be granted when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law.

And summary judgment is proper only if the affidavits in support of the motion, strictly construed, contain facts sufficient to entitle the moving party to judgment, and those of the opposing party, liberally construed, fail to show there is material issue of fact. Thus, the party moving for summary judgment has a very great burden of proof.

The moving party must demonstrate that under no hypothesis is there a material factual issue requiring a trial.  That is because absent the proper circumstances for a motion for summary judgment or partial summary judgment, the parties to a lawsuit are entitled to a trial, either by the court or by jury.  

And issue finding, rather than issue determination, is the pivot upon which summary judgment law turns.

California case law is well settled that any doubts regarding a Summary Judgment Motion must be resolved in favor of the opposing party. The declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party; the court focuses on issue finding, and it does not resolve issues of fact.

And if the evidence presented is equally conflicting the motion should be denied.

The facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true.

And the affidavits and declarations in opposition to a motion for summary judgment need only disclose the existence of a triable issue, they do not need to prove the opposition’s case.

If the terms of a contract are at issue and any of its provisions are ambiguous or unclear, a California Court of Appeal has ruled that the trial court should not grant summary judgment but allow the parties a full opportunity to produce evidence of facts, circumstances and condition surrounding execution of contract and conduct of parties relative thereto.

 

 

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in civil litigation in California Courts.  Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.

Motion to Strike an Unlawful Detainer (eviction) complaint in California

Motion to Strike an Unlawful Detainer (eviction) complaint in California

This blog post will discuss the use of a motion to strike in an unlawful detainer (eviction) action in the State of California. A motion to strike is used when a complaint requests relief or damages which are not supported by the allegations of the complaint, or is not verified as required by law. These are the main reasons, although there are other reasons. The motion to strike can request that the entire complaint be stricken, or just certain specified portions. The Court can only consider matters which appear on the face of the complaint. As with a demurrer there is no extrinsic evidence allowed, other than what can be judicially noticed.

Code of Civil Procedure § 436 states in pertinent part that a Motion to Strike may be filed to strike any irrelevant matter inserted in any pleading, and to strike any pleading or part thereof not drawn in conformity with the laws of this state.

In the case of an unlawful detainer complaint the code states that it must be verified by the Plaintiff. If the complaint is not verified then the entire complaint should be stricken on the grounds that the Complaint is not verified as required by Code of Civil Procedure § 1166(a)(1). Thus, the complaint is not drawn in conformity with the laws of this state.

Or if the eviction complaint requests rent or other damages, but the three-day notice attached to the complaint does not contain a request for rent or other damages then the complaint is subject to a motion to strike.

Many eviction complaints request additional statutory damages for malicious conduct, yet do not allege any facts which would support a finding of malice. This is clearly subject to a motion to strike as several California Courts of Appeal have ruled.

A UD complaint which contains a prayer for statutory damages (up to $600, in addition to actual damages) when the complaint fails to plead facts adequate to support a finding of “malice” is improper and thus subject to motion to strike. See Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316–317, see also Fifth & Broadway Partnership v. Kimny, Inc. (1980) 102 Cal.App. 3d 195, 204.

A California Court of Appeal has ruled that if a claim of right appears on the face of a complaint which is legally invalid that the complaint is subject to a Motion to Strike.

“We conclude that when a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that portion of the cause of action by filing a motion to strike”.  PH II, Inc. v. Superior Court (1995) 33 Cal.App. 4th 1680, 1682-1683.

Since the unlawful detainer statutes do not provide for the timing of a hearing on a motion to strike, the timing for motions to strike is governed by Code of Civil Procedure § 1005, which requires 16 court days notice of the hearing on the motion to strike, plus five calendar days for notice by mailing. Court days means Monday through Friday, except for Court holidays. A defendant who wishes to file a motion to strike should contact the Court clerk and obtain a hearing date 4-5 weeks from the date of filing, not later than thirty five (35) calendar days, or the earliest date the Court clerk has available.

Some clerks will try to tell you that you must give the same notice as a motion to quash, this is not true.  CCP Section 1005(b) states that the same minimum 16 Court days notice as is required for a demurrer is also required for a motion to strike.  See also the Rutter Group Cal. Practice Guide Landlord-Tenant Chapter 8-C 8:255.5.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.

Answer to unlawful detainer (eviction) complaint in California

Answer to unlawful detainer (eviction) complaint in California

This blog post will discuss filing an answer to an unlawful detainer (eviction or UD) complaint in California. Once the tenant has been properly served with the summons and complaint they generally have five (5) calendar days to file their answer with the Court and serve a copy on the plaintiff or their attorney. Failure to file and serve an answer on time will result in a default being entered against the defendant or defendants. The landlord can then obtain a judgment for possession of the premises very quickly, usually within a few days at most. Therefore, it is vital for a tenant served with an unlawful detainer summons and complaint to answer or otherwise respond within the very short time allowed.

In general, the tenant’s response is due within five (5) calendar days after service of the unlawful detainer summons and complaint. The five-day period includes Saturdays and Sundays but excludes other court holidays; however, if the fifth day falls on a Saturday or Sunday, the response deadline is extended to the next court day. However, if the summons and complaint was not personally served, but instead was served by substituted service, meaning a copy was given to someone else residing at the premises, and another copy was mailed to the tenant, or an order to post and mail (“nail and mail” was issued by the Court, than the response time is extended to fifteen (15) calendar days, court holidays are counted in this type of situation although again if the last day to answer falls on a Saturday or Sunday, or a court holiday, the deadline is extended to the next court day.

Thus, an answer to the unlawful detainer complaint must be filed within this five-day period unless, before expiration of the five days, the tenant has filed some other authorized responsive pleading that temporarily excuses the duty to answer such as a motion to quash, demurrer, motion to strike, etc.

The filing of a motion to quash, http://wp.me/ps4Uj-18, demurrer, http://wp.me/ps4Uj-5J, motion to strike http://wp.me/ps4Uj-7c, or other authorized preanswer responsive pleading extends defendant’s time to answer the complaint. But the preanswer pleading must itself have been filed within the five-day answer period, absent stipulated or court-granted extension of time.

Where “good cause” is shown such as time needed to obtain filing fees, etc, the court may grant defendant an extension of time to respond.

Like any preanswer response, application for an extension of time to plead must itself be made within the five-day answer period. As soon as the five days are up, plaintiff is entitled to obtain a default entry “beating out” defendant’s subsequently filed application for extension of time. Any extension of time that was granted after the time to answer had expired may be ignored and a default entered. See Start v. Heinzerling (1915) 27 CAl.App.145, 148.

Application for an extension of time may be made ex parte; a formal noticed motion is not required as the narrow five-day window period does not allow time for a noticed motion under normal procedures.

But some form of informal notice must be given to plaintiff; and defendant’s written application must advise the court of the nature of the case and what extensions, if any, have previously been granted (whether by court order or stipulation).

Normally, a party seeking an ex parte order in a civil case must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance (absent a showing of exceptional circumstances justifying shorter notice). In unlawful detainer proceedings, however, an ex parte applicant may give shorter notice “provided that the notice given is reasonable.” See California Rule of Court 3.1203.

The ex parte application must be accompanied by a declaration stating either (i) that notice was given, including the date, time, manner and name of the party informed, the relief sought, whether opposition is expected and that the applicant informed the opposing party where and when the application would be made; or (ii) that a good faith attempt to inform the opposing party was made but the applicant was unable to do so, (specifying efforts made); or (iii) why notice should not be required.

If the notice in a UD proceeding was provided later than 10:00 a.m. the court date before the ex parte appearance, the declaration must state why the notice given was reasonable. See California Rule of Court 3.1204(c).

The maximum extension is ordinarily 10 days unless plaintiff consents to a longer time (i.e., stipulated extension) or the court otherwise orders for “good cause” shown.

The parties may stipulate to an extension of time for any reason; but a court-ordered extension will lie only for “good cause” shown.  Since eviction actions are supposed to be “summary” (speedy) proceedings, courts tend to be quite restrictive in granting extensions of time.  A first-round extension is likely to be granted (“good cause” found) only on allegation that no prior extensions have been granted (by court or on party stipulation) and that (i) defendant needs more time to locate an attorney to represent him or her or to acquire the requisite filing fees, or (ii) a consulted attorney needs more time to evaluate the case to determine whether to accept representation of defendant.

Any further (second or additional) extensions are uniformly disfavored in UD proceedings.

Defendant’s answer must be verified (since the UD complaint must be verified. See Code of Civil Procedure § 446. Note that while all answering defendants must sign the answer, only one defendant needs to verify the answer. An unverified answer is subject to a motion to strike in its entirety; but the motion must be made within 10 days after service of the answer.

The function of the answer is to put the case “at issue” as to all material allegations in the complaint. Therefore, the same as with any answer to a civil complaint, the unlawful detainer answer should set forth whatever denials and/or affirmative defenses are necessary to controvert the landlord’s material allegations.

All material allegations of the complaint that a defendant does not intend to admit must be effectively denied. If they are not denied then they are automatically deemed to be admitted.

Defendant should respond specifically to each paragraph in the unlawful detainer complaint by admitting, denying, admitting portions and denying portions, or denying on the basis of lack of information or belief upon which to admit or deny.

As with general civil litigation, defendant’s answer should allege applicable affirmative defenses that are not put in issue under a simple denial commonly referred to as “new matter.” As a general rule, whatever the defendant tenant bears the burden of proving at trial is “new matter” and thus is in issue only if specifically pleaded in the answer.

It needs to be stressed that allowable defenses are limited. Only “issues directly relevant to the ultimate question of possession” and which, if established, would result in the tenant’s right to retain possession, may be asserted in defense to an unlawful detainer. See Barela v. Super.Ct. (Valdez) (1981) 30 Cal.3d 244, 249.

The defendant (tenant) bears the burden of pleading all essential elements of the affirmative defense (or defenses) raised; i.e., the defenses pleaded must be supported by factual allegations. However, this simply requires “meaningful notice” to the landlord of the scope and extent of the proffered defense; detailed “evidentiary” facts are not required.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.

Motion for Stay of Execution of unlawful detainer (eviction) judgment in California

Motion for Stay of Execution of unlawful detainer (eviction) judgment in California

This blog post will discuss some of the issues involved in requesting a stay of execution of the judgment in an unlawful detainer (eviction or UD) proceeding in California. Many times a tenant has difficulty in finding another place to live and will thus suffer great hardship if they have to vacate within a short period of time. A stay of execution can allow a tenant more time to get their affairs in order provided that they can meet the requirements.

If the tenant can make a good showing that they would suffer great hardship if the judgment were to be executed, and that the landlord will not suffer any further damage if a stay of execution is granted, then the Court will most likely grant at least a short stay.

Code of Civil Procedure § 918 states that, “(a) Subject to subdivision (b), the trial court may stay the enforcement of any judgment or order. (b) If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed. (c) This section applies whether or not an appeal will be taken from the judgment or order and whether or not a notice of appeal has been filed.”

This means that the Court has the power to stay the enforcement of the judgment for a maximum of 40 days from the date that the judgment was entered, and/or the date that notice of entry of the judgment was given by the clerk, or another party to the action. Note that some courts have a policy of only granting a one week stay.

Note that in order to obtain the stay of execution the tenant must show to the court that they are ready and able to pay rent as it falls due for the period during which execution is stayed. Otherwise the court will not grant their application. Note that appellate courts have ruled that the trial court cannot require the tenant to pay any back rent, only the rent that falls due for the period during which execution is stayed. It is strongly suggested that a Cashiers Check or other certified funds be purchased in an amount sufficient to pay the rent for the entire period of the stay requested, made payable to the clerk of the court and submitted at the time of the ex-parte application for a stay of execution.

In Medford v. Superior Court (1983) 140 Cal.App. 3d 236, 240, the Court of Appeals stated that, “The possibility of loss of back rent or accrued damages is not a consequence of granting such relief to the tenant. The landlord gains sufficient protection from the deposit of the contract rent as it becomes due.” So any stay of execution may be conditioned on the payment of rent accruing during the period of the stay, but not on payment of the back rent.

Code of Civil Procedure § 1176(a) states in pertinent part that, “Stay of judgment shall be granted when the court finds that the moving party will suffer extreme hardship in the absence of a stay and that the nonmoving party will not be irreparably injured by its issuance.”

The request for a stay of execution may be made ex-parte, a formal noticed motion is not required. But some form of informal notice must be given to plaintiff.

Normally, a party seeking an ex parte order in a civil case must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance (absent a showing of exceptional circumstances justifying shorter notice). In unlawful detainer proceedings, however, an ex parte applicant may give shorter notice “provided that the notice given is reasonable.” See California Rule of Court 3.1203.

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California civil litigation. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.