Ex-Parte Application to vacate a default judgment in unlawful detainer (eviction) for California

This blog post will discuss some of the issues involved in filing an ex-parte application to vacate a default and default judgment in an unlawful detainer (eviction or UD) proceeding in California. Due to the short time frames involved in an unlawful detainer, if the tenant is still living in the premises it is best to do an ex-parte application instead of a regular noticed motion. The ex-parte application must be heard by the Court before the scheduled lockout date.

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. A declaration must be filed with the Court giving the details of when, and how notice was given to the opposing party.

Any motion to vacate would normally be made pursuant to California Code of Civil Procedure § 473 which states in pertinent part that: “The Court may, upon any terms as may be just, relieve a party, or his or her legal representative from a judgment, dismissal, order or other proceeding, taken against him or her through his or her mistake, inadvertance, surprise or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

In order to qualify for relief from default and/or judgment under Section 473 the moving party must show that they: (1) timely moved the Court for relief from default, (2) make a sufficient showing of mistake, inadvertance, surprise or excusable neglect, (3) and provide a copy of their proposed pleading along with their motion. Only then have they met all of the statutory conditions necessary for the Court to set aside the default and/or judgment entered against them.

A copy of the proposed Answer should be attached as an Exhibit to the declaration of the tenant, the declaration should include the details on why the tenant did not file a timely answer to the complaint, in other words they should make a showing of mistake, inadvertance, surprise or excusable neglect.

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.

Allege invalid title as a defense to an unlawful detainer (eviction) after foreclosure in California

This blog post will briefly discuss some of the affirmative defenses that may be raised by defendants in an unlawful detainer (eviction) after foreclosure sale in California.  In particular it discusses why and how to allege invalid title as as an affirmative defense to an eviction after foreclosure sale in California. Note that the defense of invalid title can only be used by defendants in an eviction after foreclosure sale in California.

With the housing crisis and the large amount of foreclosures, the number of evictions after a foreclosure sale has increased dramatically.

The Courts have ruled that title issues ordinarily cannot be raised in unlawful detainers and, if raised in the tenant’s answer, are subject to motion to strike. See High v. Cavanaugh (1962) 205 Cal. App. 2d 495, 498–499.

Since title is part of plaintiff’s prima facie case, it is in issue under a specific denial, assuming title is alleged in the complaint. If valid title is not alleged in the complaint that would be grounds for a general demurrer on the grounds of failure to state a cause of action.

However, the rules are different in an eviction after foreclosure sale in California in that an eviction after foreclosure or other similar sale under Code of Civil Procedure § 1161a requires the purchaser seeking eviction to have “duly perfected” title. Thus, in an eviction after foreclosure, plaintiff’s lack of title is a defense. See Vella v. Hudgins (1977) 20 Cal. 3d 251, 255, see also Evans v. Super.Ct. (Robbins) (1977) 67 Cal. App. 162, 169.

There may be many reasons that a plaintiff does not have valid title. For instance Civil Code § 2934a requires that if a substitution of trustee is made after a notice of sale has been made that a new notice of sale containing the name, street address, and telephone number of the substituted trustee must be given pursuant to Civil Code § 2924f after execution of the substitution, or any sale conducted by the substituted trustee will be void. Clearly if the sale conducted by the substituted trustee was void than the purchaser did not obtain valid title to the property.

This type of objection could be raised by a demurrer, however, for tactical reasons it may be a better choice to plead that defense in the answer, and then obtain the appropriate documentary evidence, namely certified copies of the recorded documents, to use at trial, or in a possible motion for summary judgment and/or adjudication. Certified copies of documents are self-authenticating pursuant to California Evidence Code §§ 1450 through 1454.

Attorneys or parties in California who wish to view a portion of an answer to unlawful detainer that contains the affirmative defense that plaintiff does not have valid title can see below.

http://www.scribd.com/doc/46578589/Sample-Answer-to-Unlawful-Detainer-Complaint-for-California

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.

Motion to quash service in an unlawful detainer (eviction) in California

This blog post will discuss the filing of a motion to quash service in an unlawful detainer (eviction) case in California.

California Code of Civil Procedure § 418.10 states in pertinent part 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 true even though the defendant may be a resident of California.

Note that the motion to quash in an eviction case must be set for hearing within 3-7 days from filing of the motion. See Code of Civil Procedure § 1167.4(a) and California Rule of Court 3.1327(a). If the motion to quash is served by mail than the hearing must be set between 8-12 days because of the additional 5 days required by the provisions of Code of Civil Procedure § 1013. See California Rule of Court 3.1327(a).

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

Case 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.

The Courts in the State of California have ruled that a defendant is under no duty to respond to a defectively served summons.

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 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.

Attorneys or parties in the State of California who wish to view a portion of a sample motion to quash service for unlawful detainer sold by the author can click below.

http://www.scribd.com/doc/25562350/Sample-Motion-to-Quash-Service-for-California-Unlawful-Detainer

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.

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Legally delaying an eviction in California as long as possible

The topic of this blog post is a discussion of certain methods that may be used to legally delay your eviction in California as soon as possible.  If you use these methods right you can make the landlord feel like pounding sand they will be so frustrated!

Were you just served with an unlawful detainer (eviction) lawsuit? Do you need more time to come up with the rent money, or to find another place to live? Then this preview is for you. It discusses several methods which may be used, in the right situations, to beat the landlord in California and get you more time before you have to move.  Note that this preview is not the whole book but merely a preview of the upcoming book on eviction delay tactics. The title of the book will be Beat the Landlord in California.

While some of the techniques discussed here are detested by landlords and their attorneys, as you will see they are in fact authorized by the law. And in the right situation they can be very effective when utilized correctly.

However, if you try to push things too far then it will look obvious to the Judge what you are doing and that will backfire in a bad way! The Judge has the power to sanction you, which means that they can order you to pay money to the other party, or even the Court if they feel that you are acting in bad faith.

So do NOT push it. You want the Judge to think that you are using the law correctly, as it was meant to be used, not trying to buy time.  If you do it right you can make the landlord feel like pounding sand they will be so frustrated.

How long you have to respond will depend on how you were served.  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.  Note that Court holidays are any Federal or State holiday.

However, if the summons and complaint were not personally served, but instead were 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, the response time is extended to fifteen (15) calendar days from the date that a copy of the summons and complaint was mailed, 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.

Failure to file and serve an answer or other response 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.

The first thing any tenant who has been served with a summons and complaint should do is determine if they were properly served or not.  If the summons and complaint were not served in a statutorily authorized manner than a motion to quash service of the summons and complaint may be filed to request that the Court determine that the service was defective and should be quashed.  This will force the landlord to reserve you correctly.

Here are some examples of what some judges would consider defective service.

Leaving a copy of the summons and complaint at the front door or attaching to the door knob and then claiming that the tenant was personally served.

Posting a copy of the summons and complaint on the front door without obtaining a specific order of the Court to do so.

Not strictly complying with an authorized form of service such as handing a copy of the summons and complaint to another person at the residence without also mailing a copy of the summons and complaint to the tenant as required by law.

You MUST file a motion to quash if you want to object to the service of the summons and complaint. If you file any other type of response instead of a motion to quash you have waived any right to object to the service.  See Code of Civil Procedure § 418.10(e)(3).

When a motion to quash is filed the law states that it must be heard within 3 and 7 calendar days from the date it is filed and served.  See Code of Civil Procedure § 1167.4(a) and California Rule of Court 3.1327(a). If the motion to quash is served by mail than the hearing must be set between 8-12 calendar days because of the additional 5 calendar days required by the provisions of Code of Civil Procedure § 1013. See California Rule of Court 3.1327(a).

If there is a Court holiday in that time frame then the clerk might give you a later date. Do not schedule your hearing date past the time frame I have mentioned, unless the clerk of the Court schedules otherwise.

You do NOT want the Judge to think that you just filed your motion to quash to buy time.  If they do think that then you will most likely lose the motion to quash and the Judge will look very closely with a jaundiced eye at any other type of motion or answer that you file later in the case.

Some Courts only hear motions to quash one day per week, while others hear them several days a week, and some hear them Monday through Friday. Check with the clerk of the court where your case has been filed to find out which days and times, and in which department,  the motions to quash for eviction cases are heard.

There are two schools of thought on whether you should attend the hearing on the motion to quash. The first one is that you should attend the hearing if you feel you have a good case that you were not properly served and want to argue your position in front of the Judge. The reasoning behind this school of thought is that by failing to appear you will lead the Judge to believe that you only filed the motion to quash to buy more time.

If you do not attend the hearing on the motion to quash the Judge will most likely rule against you at which point you will have at least five (5) calendar days to respond to the complaint.

And if the last day for you to respond is a Saturday, Sunday, or Federal or State holiday then your time to respond is extended until the next day.  See Code of Civil Procedure §§ 12, 12a.

For example, if the last day for you to respond was Monday, February 20, 2012 which was President’s Day, which is a State and Federal holiday, then you would have until the next day, Tuesday, February 21, 2012 to respond. (Example only).

If you attend the hearing and argue your motion you have a chance of winning.  Some Judges will require the attorney for the landlord to have the process server there to testify that they served you, and may even continue the hearing to allow testimony from the process server.

Although if the attorney for the landlord is clever they will have someone serve you in the hallway before or after the hearing, or at your residence.  But even if they do that you still have five (5) calendar days to respond to the complaint.

The second school of thought is that by showing up at the motion to quash you allow the landlord the opportunity to serve you properly. And that even if you lose you will have at least five (5) calendar days to respond even if you lose on the motion to quash.

I will leave it up to the reader to chose which school of thought they will choose to follow.  But I will say this, you are the one who has to make the decision, and you will have to live with the consequences.  You may feel that you need to buy as much time as you can, and thus decide not to appear at the hearing. Just remember that you will most likely have the same Judge throughout the whole case.

Remember what I wrote at the beginning. I will repeat it again. If you try to push things too far then it will look obvious to the Judge what you are doing and that will backfire in a bad way! The Judge has the power to sanction you, which means that they can order you to pay money to the other party, or even the Court if they feel that you are acting in bad faith. So do NOT push it.

It is a good idea to find out who the Commissioner or Judge is that will be hearing your motion to quash beforehand.  You might even want to sit in on at least one motion hearing in the department where your motion to quash will be heard.   But before you step into the Courtroom do one thing, TURN OFF YOUR CELL PHONE OR PAGER.

In many, although not all, Courts a Commissioner or Judge Pro Tem will hear your motion to quash. Commissioners are actually attorneys employed by the Court to hear certain kinds of cases.  A Judge Pro Tem is a practicing attorney who agrees to hear certain cases for the Court but is not actually an employee of the Court. Many are quite fair and knowledgeable.  Although some attorneys and other litigants do feel otherwise.

Just remember this! A Commissioner or Judge Pro Tem cannot hear your motion to quash unless you sign a Stipulation that allows them to hear it.   DO NOT sign any Stipulation unless you want them to hear your case. In most cases, the name plate just below where they sit will say something like, “Commissioner Jack J. Jones”, or “Judge Robert B. Gordon”. If you are not sure ask the court clerk or bailiff when you first get there.

If you do not stipulate then your motion to quash will be heard by a regular Judge. This will most likely result in you having to wait longer to have your case heard but it is worth it if you really want a regular Judge to hear your motion.  DO NOT let the attorney for the landlord bully you!

Just remember that they could care less about you!  It is your right to have a regular Judge hear your case.  If that inconveniences the attorney for the landlord so be it. Stand up for your rights.  If you do not stand up for your rights you have nobody to blame but yourself.

When you get before the Judge be sure to point out how the alleged service on you was defective such as, “I found the summons and complaint wedged on my front door”, “I was somewhere else when they claimed they served me and I can prove it your honor”, or something similar.

If the Judge denies your motion they may ask both you and the attorney for the landlord if you “waive notice”.  This means that you give up the right to receive any formal notice of the ruling being served on you, either personally or by mail. DO NOT TELL THE JUDGE that you waive notice. You are not required to waive notice, no matter what anyone tries to tell you. Make the attorney for the landlord prepare and serve you with a proper notice.  That is your right under the law.

Just remember that you will have at least five (5) calendar days to respond to the complaint even if the Judge denies your motion, or if the attorney for the landlord has someone personally serve you either before or after the hearing.

If the attorney for the landlord does have someone personally serve you before or after the hearing then you will have five (5) calendar days to respond no matter if you win or lose on the motion to quash. This does happen sometimes depending on how astute or clever the attorney for the landlord is.

If the Judge grants your motion to quash then the attorney for the landlord will have to reserve the summons and complaint. They CANNOT just mail it to you. Make them properly reserve the summons and complaint. Although you are not supposed to evade service that does not mean you have to sit at home all the time waiting for them to reserve you.  Just come and go as you usually do.

If the Judge denies your motion to quash, remember DO NOT WAIVE NOTICE. If the attorney for the landlord personally serves you with a notice of ruling then you will have five (5) calendar days to respond. Refer to the discussion earlier in this book on how to calculate the time period when the last day for you to respond is a Saturday, Sunday, or Federal or State holiday.

Now you need to closely examine the summons and complaint for substantive defects.  In particular examine any three-day notice to pay rent or quit that is attached to the complaint.

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.  The rules discussed here only apply to residential tenants, not commercial tenants.

One of the first things that any residential 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 pursuant to Code of Civil Procedure § 1161.

The exact amount of rent due. If the amount is overstated the notice could be considered defective.  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 state the amount of rent which 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 the tenant is allowed to personally pay the rent to a particular person or entity.  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.

If the three-day notice is defective then a general demurrer can be filed objecting to the eviction complaint on the grounds that it fails to state a cause of action because the three-day notice is defective.  And if the three-day notice is defective the demurrer should be sustained without leave to amend which means that the eviction complaint should be dismissed, and the landlord will have to prepare a valid three-day notice, reserve it and then wait the correct period of time before filing a new eviction complaint.

Next a careful calculation should be done to determine if the attorney for the landlord, or the landlord themselves, actually waited until the three days had expired to file the eviction complaint.  Note that the day that the three-day notice is served is not counted.  This can get confusing so pay attention.  Just remember that Saturday, Sunday and Federal and State holidays are NOT counted when you calculate the three-day period.

For example, if the three-day notice was served on a Monday that is not a Federal or State holiday, then the three days are calculated as follows, Tuesday is the first day, Wednesday is the second day, and Thursday is the third day. The eviction complaint could be filed on Friday.

However, if the three-day notice was served on a Tuesday that is not a Federal or State holiday, then the three days are calculated as follows, Wednesday is the first day, Thursday is the second day, and Friday is the third day. The eviction complaint cannot be filed until the following Monday, unless that date is a Federal or State holiday in which case the complaint cannot be filed until the following day, which is Tuesday.   For more information you can check out Code ofCivil Procedure §§ 12, 12a. Also see Lamanna v. Vognar (1993) 17 Cal.App. 4^th Supp. 4, 7, 8

If the eviction complaint was filed even one day too early then you can object to that by filing a demurrer on the grounds that the eviction complaint is fatally defective and must be dismissed because it was filed before the cause of action accrued.  Or in other words that as a matter of law, at the time the complaint was filed, there was no forfeiture or failure to pay rent because a condition precedent was not met. See Lamanna v. Vognar, supra at 8.

The author of this blog post is a freelance paralegal who has worked in California litigation since 1995.

The author’s website: http://www.legaldocspro.net

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