An eviction in California is known as an “unlawful detainer.” We prepare paperwork to defend against an unlawful detainer action. Detainer means, “the action of detaining or withholding property.” If you are the defendant in an unlawful detainer action, the property owner or manager is accusing you of unlawfully keeping the property. We help clients defend against unlawful detainer actions in California by preparing documents for service on the landlord, property manager, and/or the court to stop or delay an eviction. Some of the papers we help with include:
Letter Response to Three Day, Fifteen Day, Thirty Day, Sixty Day, or Ninety Day Notice
Sometimes a letter from the tenant to the landlord is all that it takes to ward off an improper eviction. We can prepare a letter to the landlord addressing defects in the notice and forcefully stating your intent to fight any improper eviction.
Letter from a California Attorney
A letter from an attorney puts a landlord on notice that you take their threats to evict seriously, and you intend to fight vigorously.
Demurrer to Complaint
A demurrer is a document that challenges the validity of an unlawful detainer complaint. The demurrer may allege that notice is improper, that service of the complaint is improper, or that there are other defects in the complaint that require it to be dismissed. A demurrer will often cause a delay of a month or more.
Motion to Quash Service of Summons
If a summons is improperly served, a motion to quash may be used to ask the court to reject the summons and order the landlord to start the eviction process again. A motion to quash will often cause a delay of a month or more.
Answer to Complaint
An answer to an unlawful detainer complaint can be used to not only inform the court that the tenant disagrees with the complaint but also state affirmative defenses, such as the landlord’s failure to properly maintain the property.
Interrogatories are specific questions that your landlord must answer in writing, under penalty of perjury within five days of service. A landlord’s answers may assist a tenant in preparing a defense to an unlawful detainer action.
Demand for Jury Trial
The California Constitution gives tenants the right to a jury trial in unlawful detainer actions if the tenant deposits the required fee of $150 with the court; however, this fee can be waived if the tenant qualifies for a fee waiver.
Motion to Set Aside Default
A zealous landlord may improperly take a tenant’s default before waiting the required amount of time for the tenant to respond or without even letting the tenant know the landlord is trying to evict them. If this happens, a motion to set aside default can be used to give the tenant an opportunity to defend against the eviction. A motion to set aside default will often cause a delay of a month or more.
Discover is evidence that can be used to help defend against an improper eviction, such as records showing that the property was not maintained or that rent was paid after the tenant was given a notice to pay rent. A tenant can demand that the landlord provide discovery. If the landlord fails to do so, the tenant can file a motion to compel discovery, which will often cause a delay of a month or more.
Application for Stay of Execution of Judgement
An application for stay of execution is a request to temporarily stop law enforcement from enforcing an eviction order. If granted, it gives the tenant an extension of time before being permanently locked out of the premises. The application for stay will often cause a delay of a two weeks or more.
Motion for Judgment Notwithstanding the Verdict
Sometimes a jury will get things wrong. If the jury returns an improper verdict in favor of the landlord, the tenant can ask the court to ignore the verdict and rule in favor of the tenant. Code of Civil Procedure section 629 gives the court authority to “render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” The motion challenges the legal sufficiency of the evidence, and the court can only grant the motion if it finds there is no substantial evidence to support the verdict.
Motion for New Trial
“A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee” (Code of Civil Procedure section 656). The motion can be granted “for any of the following causes, materially affecting the substantial rights of such party:
1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.
3. Accident or surprise, which ordinary prudence could not have guarded against.
4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.
5. Excessive or inadequate damages.
6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.
7. Error in law, occurring at the trial and excepted to by the party making the application.”
In evictions, the most common grounds for new trials appear to be (3) surprise evidence or (4) newly discovered evidence. If a new trial is granted, the tenant may be allowed to remain in the property for a significant amount of time while the court waits for a courtroom to be available.
Notice of Appeal
An appeal is a request that a higher court review and reverse the decision of the trial court. If the judge made errors during an eviction trial, an appeal may cause the judge’s rulings to be overturned, which may allow the tenant to remain in the property.
Claim for Return of Personal Property