ADVANCED OVERVIEW

RONNETTE RAMOS · CAROLYN GOLD SAN FRANCISCO · APRIL 22, 2008

LANDLORD/ TENANT LAW

OVERVIEW• Prejudgment Claim of Right to Possession• Review of Tenant Defenses• Trial/ Trial Preparation • Motion to Quash• Demurrer• Motion to Set Aside• Appeal Process• Stipulations• Stay of Execution• Stay of Execution Pending Appeal• UD Registry

PREJUDGMENT CLAIM OF RIGHT TO POSSESSION

PREJUDGMENT CLAIM OF RIGHT TO POSSESSION

• Prejudgment Claim of Right to Possession may be filed by unnamed occupants to make a general appearance in the case.

• Serving this form prevents unnamed occupants from later contesting the enforcement of a UD judgment.

• After filing Prejudgment Claim of Right to Possession the individual automatically becomes a defendant in the Unlawful Detainer lawsuit, and must file an answer to the Complaint within five days after filing the form

TENANT DEFENSES

•Breach of Implied Warranty of Habitability

•Estoppels

•Rent Control

•Defective Notices

•Retaliation and Discrimination

BREACH OF IMPLIED WARRANTY OF HABITABLITY

• Prove the poor conditions are substantial

• Evidence of conditions Photos Certified agency reports Witnesses Letters to landlord/ owner

• Notice to the Owner (aware of or should have been aware of)

• If tenant wins: Reduced rent Make sure tenant has money to pay Repairs ordered (Compliance

Hearing)

ESTOPPEL • Landlord can be estopped

from evicting if:– Landlord accepted late

payment of rent in the past– Plaintiff accepted rent

with knowledge of alleged breach

– Acceptance of rent after the notice expired

– Notice does not unequivocally demand possession

RENT CONTROL

• Rent Control• Regulates how much a landlord can raise (or must

reduce) the rent• Limits the reasons for eviction and/or pay relocation

fees

• Landlords must identify the reasons, circumstances, and/or witnesses in the notice to terminate a tenancy

• LARSO- Los Angeles Rent Stabilization Ordinance

DEFECTIVE NOTICE• Demanded more rent

than Tenant owed• Not properly served• Did not declare

forfeiture of lease• Did not give proper

amount of time to pay rent, cure or quit

DISCRIMINATION AND RETALIATION

• Discrimination:– Race, Gender, Age, Sexual

Orientation, Disability, Religion, Presence of Children in Residence

• Retaliation:– Tenant has exercised legal

right (i.e.- using repair and deduct remedy)

– Tenant complained about problem in rental unit

– Tenant prevailed in prior UD action

TRIAL/ TRIAL PREPARATION

• Once tenant/defendant files an answer, either party may request a trial date

• Trial date is usually set within 20 days of filing the request

• When requesting a trial date, either party may request a jury trial

• Tenants can log onto for information on preparing for Trial (Courtesy of Neighborhood Legal Services)

MOTION TO QUASH

• Motion to nullify service of process• Maybe filed within 5-day pleading time• Timely filed motion avoids entry of default• Maybe filed simultaneously with an Answer• Types of defective service• Requires points and authorities

DEMURRER• Defendant contests the legal sufficiency of a

complaint without admitting or denying the allegations

• Must be filed within 5 days after service of the Summons

• Demurrer must: Be served and filed at least 16 court days before the

hearing date, with 5 calendar days added if the places of mailing and destination address are both in California

Is not more than 35 days after filing or on the first available date thereafter

MOTION TO SET ASIDE

• Tenant may file a motion asking the court to set aside a Default Judgment

• If the motion is granted, Tenant may then file an Answer and have a trial

• Failure to respond requires a good excuse• Tenant should not delay in requesting a

motion to set aside a Judgment

APPEAL FROM AN EVICTION• Tenant may appeal a Court’s eviction order

by filing a Notice of Appeal

• Must be filed within 30 days of receiving notice that Judgment was entered

• May only argue issues of law

• An appeal does not stay an eviction

STIPULATIONS

• Also called a Conditional Settlement• Landlord and Tenant must agree on terms• Agreement on date Tenant must leave• Agreement on how much money is owed and

when it will be paid• Agreement on Conditions

– Tenant must agree that Landlord will dismiss case so long as tenant moves out on a set date

• Should be put in writing

STAY OF EXECUTION• Court order to temporarily suspend the

execution of the UD Judgment

• Defendant may request a Stay of Execution of the Judgment whether or not an appeal is taken

• Tenant is usually required to pay daily rental value for length of stay

STAY OF EXECUTION PENDING APPEAL• Procedures governing Stays of Unlawful Detainer Judgments

pending appeal:– No automatic stay on appeal– Request for stay must first be directed to the judge who rendered

the judgment– May be granted if judge finds:

• Moving party will suffer extreme hardships if stay is granted• Stay will not irreparably injure moving party

– Subject to any conditions the Court deems just– Conditioned on payment of reasonable monthly rental value to

the Court each month in advance

UD REGISTRY• A credit reporting agency which locates the eviction

records in the local courthouses and adds the names of all Defendants to a computer database

• CCP § 1161.2-– Was originally designed to protect tenants whose landlords

dismissed or lost the case, but has been severely weakened with exceptions, and has not extended to practical applications

– An eviction case should remain permanently sealed unless and/or until a Judgment against specific tenant is entered

– For more information log onto the UD Registry by clicking here-

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