INTRODUCTION TO UNLAWFUL DETAINERS

INTRODUCTION TO

UNLAWFUL DETAINERS

NADIA AZIZ, LAW FOUNDATION OF SILICON VALLEY

LOLITA FERNANDES, BAY AREA LEGAL AID

HAI DAO, EAST BAY COMMUNITY LAW CENTER

PLI March 4, 2020

Poll

Who is in the room?

A. I have never defended an eviction.

B. I usually represent landlords.

C. I have some experience representing tenants

in eviction cases.

D. I represent tenants in eviction cases on a

regular basis.

Eviction Process - Generally

The eviction process moves FAST:

Notice: is served and expires Unlawful Detainer

complaint is filed.

Unlawful Detainer Summons & Complaint served on Tenant

Response: 5 COURT days to respond to complaint. CCP

1167. (Recent change).

Discovery: 5 days to respond and must be completed 5

days before the trial date. CCP 2025.270(b); 2030.020;

2024.040(b).

Trial: must be set within 20 days after “at issue

memorandum” is filed (i.e. request to set for trial). CCP 594.

The Eviction Process

UD Process and Timelines Notice of Termination of Tenancy

Summons and Complaint

(T has 5 days to answer)

Settle or

Engage in Administrative

Process (for subsidized

housing only)

Answer

(or other responsive pleading)

SF: req for jury trial filed at the

same time to get MSC

No Answer

(or other responsive

pleading)

LL requests to set case for

trial - (trial must be set within

20 days of request CCP 594)

Notice of Trial

(SF: and MSC)

Trial

(Jury vs. Bench trial)

Judgment for LL Judgment for T

T stays in

possession

LL requests Default and

serves on T

Default Judgment

entered

Sheriff’s notice (5 days,

jurisdictional variations,

Sheriff’s discretion in

execution, stay request)

Request to Set

Aside Judgment

Options:

Stay,

Motion for

Relief

from

Forfeiture,

Appeal

Eviction Process - Notice

To start the eviction process, the landlord must give a tenant an eviction notice or “notice to terminate tenancy.”

Common types of notices: 3-day notice to cure or quit (ex: pay rent)

3-day notice to quit (for serious, non-curable violation)

3–day notice to cure (for tenancies covered by AB 1482) Landlord may then serve notice to quit if tenant does not cure when first notice expires.

30/60-day no cause notice (only for tenancies not covered by AB 1482)

90-day notice Tax Credit properties – good cause required

Tenants in foreclosed properties

Eviction Protections – AB 1482

January 1, 2020

Just Cause Protections in covered properties where:

(1) All of the tenants have continuously and lawfully occupied the residential real property for 12 months or more.

(2) One or more tenants have continuously and lawfully occupied the residential real property for 24 months or more.

Note: children do not count as new tenants.

Tenants are entitled to notice of their rights under AB 1482 and to notice if their home is not covered.


Units protected with Just Cause:

Most apartments except those built in the last 15 years.

Duplexes built more than 15 years ago if the owner of the duplex does not live there.

Single-family homes built more than 15 years ago if a corporation owns the home.

Units Not Protected by Just Cause:

Housing built within the last 15 years

Single-family homes where the landlord also lives and rents out two or fewer units on the property.

Any housing where the landlord lives in the unit and the tenants share a bathroom and kitchen with the landlord (i.e. lodgers).

Units covered by a local just cause law enacted prior to 9/1/2019, or a more protective local law passed after 9/1/2019.

Duplexes if the owner lives in the duplex.

Hotels, hostels, other short-term housing.

Student dormitories.


Just Cause – At-Fault

Non-payment of rent.

A breach of a material term of the lease

Nuisance

Waste

T refused to execute a written extension or renewal of the lease for an additional term of similar duration with similar provisions

Criminal activity by the tenant on the property, or criminal activity off the property is directed at any owner or agent

Assigning or subletting the premises in violation of the tenant’s lease

Refusal to allow lawful request for entry by owner to the residential real property.

Using the premises for an unlawful purpose

The employee, agent, or licensee’s failure to vacate after termination

When the tenant fails to deliver possession of the residential real property after providing written notice of the tenant’s intention to terminate the hiring of the real property, or makes a written offer to surrender that is accepted in writing by the landlord, but fails to deliver possession at the time specified.


Just Cause – No Fault (LL owes 1 month rent as relocation assistance) Intent to occupy the residential real property by the owner or their

spouse, domestic partner, children, grandchildren, parents, or grandparents.

Withdrawal of the residential real property from the rental market.

The owner complying with any of the following: (I) An order issued by a government agency or court relating to habitability that necessitates vacating the residential real property. (II) An order issued by a government agency or court to vacate the residential real property. (III) A local ordinance that necessitates vacating the residential real property.

Intent to demolish or to “substantially remodel” the residential real property.

No fault evictions trigger relocation benefits for tenants.

Failure to pay relocation voids the eviction notice.

Affirmative Defense - Habitability

Habitability All premises are required

to meet health and safety

standards.

Look to Civil Code 1941.1

for guidance

Defense to non-payment

cases only

Affirmative Defense - Repair &

Deduct

(b) Repair and Deduct Tenant reports to Landlord

repairs are needed. Landlord fails to respond in

a reasonable period of time. Thirty Days after notice is presumed reasonable.

Tenant makes the repairs and withholds the rent.

Repairs cannot be in excess of one month rent and right cannot be exercised more than twice a year.

Only for non-payment cases

Affirmative Defenses – Acceptance

of Rent

Tenant Offered Rent During Notice Period and Landlord Rejected

Notice is curable during the time period.

Tenant is instructed to pay or quit.

If Tenant attempts to pay during the notice period the landlord is obligated to accept payment.

Affirmative Defenses – Defective

Notice

Notice Defects

Notice is the foundation for the Unlawful Detainer. If the notice is defective it cannot support the action.

Improper Service

Improper Content

Wrong notice length

Does not include required language or advisories

Overstatement of rent due (consider AB 1482 rent limits)

Facts stated in the notice are not true

Facts stated in the notice, even if true, don’t meet legal requirements for eviction

Mobile Home substantive laws

Tenant Protection Ordinances

Rent Control Ordinances

Affirmative Defenses - Retaliation

(e) Retaliation

Presumed if eviction

initiated within 180 days

of tenant complaint re:

habitability

Tenant may also prove

retaliation for conduct

prior to 180 day period.

Tenant organizing also

triggers retaliation

protection

Affirmative Defenses

Discrimination

Reasonable

Accommodations

(Discussed in detail

in Fair housing

section)

Sex Color Race

Religion Marital Status

National Origin

Ancestry Familial Status

Disability

Source of Income Age

Sexual Orientation

Gender identification

Arbitrary Trait


(i)Domestic Violence

Landlord is attempting to evict tenant based on

tenant being a victim of domestic violence,

stalking, sexual assault, human trafficking, or

other abuse.

(j) Emergency assistance

Landlord is attempting to evict based on

tenant’s seeking emergency assistance.


(j) Other Defenses Waiver

Estoppel

Breach of the Covenant of Good Faith and Fair Dealing

Unclean Hands

1632 Defense

Failure to pay 1482 relocation

Failure to give 1482 notice

Other equitable defenses

(Please switch to polling)

Polling Question #2:

Ryan came into your office. He received a 3 Day Notice to Pay Rent or Quit from Mr. Landlord. This notice states they owe rent for the current month of March 2020 in the sum of $3,000. The unit has a lot of habitability problems, including a broken refrigerator that Ryan paid $200.00 to repair. The notice period expires tomorrow. What is your advice to them? Assume that they paid $25 for rent for month of March and they have a receipt proving this fact.

A. Pay $3,000 to Mr. Landlord by tomorrow to avoid having an eviction filed against them.

B. Pay $2975 to Mr. Landlord to avoid having an eviction filed against them.

C. Withhold the entire $3000.00 because of the habitability problems.

D. Pay everything but the $200.00 he paid to fix the refrigerator.

E. Do nothing and wait to see if Mr. Landlord files an eviction against them.

Complaint

● UD Summons and Complaint

See Sample Judicial Council Forms, SUM-

130(revised September 1, 2019; AB 2343) and UD-

100

20

Complaint Defects? 21

Lease and other documents incorporated into the lease must be

attached unless eviction is for non-payment of rent, landlord does

not have a copy or the lease is oral. CCP §1166.

Inconsistencies in complaint, notice and lease (name, address,

dates, rent demanded, amount demanded in damages, local rent

ordinance)

Capacity to sue

All elements of UD pled esp. when a form complaint is not used

Verified Complaint; by whom

Attorney fees requested; look at the written contract

Statutory damages requested; does the complaint show malice

Prior case, if any, dismissed

Service of process

Personal service: non-party must serve the summons & complaint by

hand-delivering the documents to defendant. CCP §415.10; or

Substituted service: if the landlord cannot personally serve defendant

despite reasonable diligence, the landlord may serve defendant at work or

leave the complaint with a person of “suitable age and discretion”

(competent member of household) at home/work AND a copy mailed to the

home/work. Service is deemed completed on 10th day. CCP §415.20(b); or

Post and mail: the complaint can be posted to door AND a copy mailed to

unit address. This service requires a COURT ORDER with a showing of

reasonable diligence attempts. Service is deemed completed on 10th day

after posting and mailing. CCP §415.45. 22

Response time in UD procedures

5 days to respond excludes weekends and court holidays. CCP §1167; AB

2343.

If there is no response, LL can obtain a default and default judgment.

Unnamed occupants must file prejudgment claim of right to possession

(if served) within 10 days and then respond in 5 days after such filing.

15 days to respond if post and mail or substituted service.

10 days to amend answer without leave of court. CCP §1167.3.

What happens next?

Jurisdictional differences:

SF: if LL doesn't request court to set case for trial, cases can linger

for 1 year or longer;

Inland Empire: If LL does not set case for trial, status conference set

by the court. Cases do not linger.

Courts have discretion to dismiss case if no proof of service is filed

within 60 days of filing

23

Polling Question #3

Jamie gets personally served with an Unlawful

Detainer on Thursday 1/16. Monday, 1/20 is the

MLK Holiday. When is the last day Jamie can

answer?

A. Wednesday, 1/22

B. Thursday, 1/23

C. Friday, 1/24

D. Monday, 1/27

Responsive Pleadings

● Pre-Answer motions

■ Motion to Quash

■ Demurrer

■ Motion to Strike

● Answer and Jury Demand

25

Motion to quash

Motion to Quash service of summons is used to

challenge the court’s personal jurisdiction over tenant.

CCP §418.10(a)(1).

Improper method of service or summons

Missing papers from process served

Hearing on Motion to Quash must be set within 3 to 7

days. CCP §1167.4(a).

If Motion to Quash denied, pleading/answer due within

five days. CCP §1167.4(b).

If granted, LL has to re-serve.

26

Demurrer

Procedure to test the legal sufficiency in the UD Complaint. CCP §1170.

Grounds are set out in CCP §430.10. Common examples:

Complaint fails to state a cause of action in unlawful detainer or

complaint is “facially” defective (defective notice, uncertainty,

inconsistencies);

The Plaintiff lacks legal capacity to sue;

Another action is pending between the same parties on the same

cause of action (court must take judicial notice of the other action)

Hearing on the demurrer must be set 16 court days after service plus

add time if mailed. Comes up to 35 calendar days. CCP §1005. Local

rules may require shortening time.

Demurrer may be sustained with or without leave to amend. Usually, 5

days to answer if denied.

27

Motion to strike

Use Motion to strike for irrelevant, false or improper matter in

pleadings. CCP §§435-437.

Grounds appear on the face of the pleadings or from any

matter which court can judicially notice. CCP §437(a).

File within 5 days of being served with Complaint. CCP §435 –

default will not be entered while motion pending.

Notice for hearing on motion is the same as for a Demurrer.

CCP §1005.

Discovery can commence 5 days after summons served even if

pre-answer motion pending. CCP §2030. 28


Polling Question #4

1. Mr. Tenant came into your office with a UD Complaint. Per the

Complaint, the 3-day notice expired on a weekend, November

29, 2019. The Complaint was filed on the next day, November

30, 2019. Is there any ground for a pre-answer motion?

1. Yes

2. No

2. What is the most appropriate type of responsive pleading?

1. Motion to quash

2. Demurrer

3. Motion to strike

4. Answer 29

Answer + Jury Demand Answer

Form answer is being revised to comply with Tenant Protection Act– see

sample Judicial Council Form UD-105 for 2019 form

Can amend without leave of court within 10 days of service; also possible if

Plaintiff demurs to answer.

Denials and Defenses

Denials - General (if limited civil < $10,000) or Specific


Check box in Form answer - para 3

Additional Affirmative Defenses not included on the form (subsidized

housing, rent control, novel defenses), use MC-025 titled as

“Attachment 3l”

Also plead facts supporting affirmative defenses checked in para 3 in

“Attachment 3l”

No counter claims, but can offset rent demand if habitability issues.

Jury Demand - Best practice to request for a jury trial and mandatory settlement

conference with answer. Not all jurisdictions have mandatory settlement

conferences. Check local court rules.

30

Fee Waivers Low-income litigants may request the court for a fee waiver

Use Judicial Council Form FW-001 Request for Fee Waiver.

Submit Judicial form FW-003 Order on Court Fee Waiver with the

request.

If you are requesting a jury trial or additional services:

Use Judicial Form FW-002 Additional Requests for Fee Waiver;

plus attach FW-003 Order.

Here is the cost of filing fees for civil cases:

https://www.courts.ca.gov/documents/StatewideCivilFeeSchedule-

20200101.pdf

Jameson v. Desta decision entitles litigants with fee waivers to a

record of trial court proceedings (court reporter or electronic

recording). Check your local court rules. FW-001 covers this fee.

31

https://www.courts.ca.gov/documents/StatewideCivilFeeSchedule-20200101.pdf



Discovery

When discovery begins? Plaintiff: 5 days after service of summons and complaint, or upon

Defendant’s appearance, whichever is first. CCP 2030.020(c), 2031.020(c), 2033.020(c)

Defendant: at anytime but constitutes an appearance. CCP 2030.020(a), 2031.020(a),2033.020(a)

Common discovery tools Form and Special interrogatories (35, requires declaration for more)

Request for Admissions (35, requires declaration for more) Unlimited for genuineness of documents. CCP 2030.030(a)

Oral Deposition (7 hours) CCP 2025.290

Request for Production of Documents

Very limited timeline 5-days to respond

Discovery cut off – 5 days before trial. CCP 2024.040(b)(1)

Discovery motions – anytime before trial upon 5 days notice. CCP 1170.8


Polling Question #5

Opposing counsel requests a continuance to respond to the discovery you served. You agree to the following:

1. Discovery due date is extended from February 24 to March 9.

2. Trial is continued from March 9 to March 23.

When you review the discovery on March 9, the facts require you to notice a deposition. You serve a notice of deposition on opposing counsel, scheduled for March 16. Opposing counsel objects, asserting that the discovery cutoff has passed. Is opposing counsel correct?

a. Yes, because the discovery cutoff was March 4

b. No, because the discovery cutoff is March 18

c. No, because opposing counsel is always wrong

Motion to Compel Discovery

Responses Must be made before trial with 5 days’ notice.

CCP 1170.8

Failure to timely respond to discovery waives all objections. CCP 2030.290(a), 2031.300(a), and 2033.280(a).

Move to compel inadequate responses. CCP 2030.300, 2031.310 Possible terminating sanctions. CCP 2030.300(e),

2031.310(i)

Request to have admissions deemed admitted. CCP 2033.280(b) Attorney’s fees for failing to admit what is later

proved true

Informal Discovery Conference may be necessary. Consult local rules, CCP 2016.080.

Motion for Judgment on the

Pleadings

“Post-Answer Demurrer”

Move for MJOP after answer is filed. CCP 438

Regularly noticed motion

But no meet and confer for UD. CCP 439(d)(2)

MJOP may be made at “any time prior to trial or at the trial itself.” Stoops v. Abassi (2002) 100 Cal. App. 4th 644, 650.

Grounds. CCP 438(c)(1)(B)

Court has no jurisdiction of the subject of cause of action

Complaint does not state facts sufficient to constitute cause of action

Motion for Summary Judgment

Must be made post-answer on 5-days’ notice. CCP 1170.7

When Plaintiff’s cause of action has no merit. CCP 437c(a)(1)

If one or more elements of cause of action cannot be

established

If Defendant establishes an affirmative defense to cause of

action

UD requires strict compliance with all statutory prerequisites

and procedures.

Can be supported by declarations, discovery responses, and

other documents using Judicial Notice.

Separate Statement of Undisputed Material Facts not required.

CCP §437(r).

Cal. Rules Court, rule 3.1351

Motion to Set Aside Judgment

Plaintiff can enter default and obtain default judgment

when responsive pleading not filed within 5 days after service of summons and complaint served.

Default may be set aside Lack of actual service

Mistake, excusable neglect. Based on CCP § 473.

Judgment can be set aside if entered pursuant to stipulation as well

If client is out of possession before UD trial: File motion to let court know and request dismissal

If Plaintiff refuses, under CCP § 1952.3(a)(1)-(2), case should convert to civil if Plaintiff Landlord wants to pursue money damage and LL/T has right to other civil litigation tools.

Stay of Execution

Judgment entered against tenant

Hardship stay and/or

Stay pending appeal

Purpose

Obtain additional time for tenant to vacate

Obtain additional time to file post-judgment motion (motion to set aside, motion for relief from forfeiture) or appeal

Payment of rent

In general, tenant must pay the daily rental value as determined by judgment.

Tenant may pay reduced amount depending on subsidy

Foreclosures

Lease survives foreclosure.

90 days notice to quit required for tenants. CCP 1161b

Owners get 3 day notice to quit. CCP 1161a

Question-if tenant is not served with 90 day notice

should tenant file a prejudgment claim of right to

possession?

Tenants can file prejudgment claim of right to

possession any time before judgment or object to

judgment for possession whether or not tenant was

served with prejudgment claim of right to possession

CCP 415.46.

Miscellaneous

Request to set case for trial

Can be requested any time after defendant appears.

Demand for jury trial (UD-150)

See local rules

Request settlement conferences

See local rules

Some jurisdictions have mandatory settlement

conferences, some you must request

Not all jurisdictions have settlement conferences

UD masking law

UDs remain masked unless Plaintiff obtains judgment

within 60 days of filing. CCP 1161.2(g)

INTRODUCTION TO UNLAWFUL DETAINERS

Documents

Transcript of INTRODUCTION TO UNLAWFUL DETAINERS