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socrateaser
socrateaser, Attorney
Category: CA Real Estate
Satisfied Customers: 37972
Experience:  Attorney and Real Estate Broker
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Ca. eviction question: There must be a landlord / tenant

Customer Question

ca. eviction question:
There must be a landlord / tenant relationship in other for a plaintiff to qualify for bring an action in an unlawful detainer (UD) action. A UD is in the FAST TRACT SYSTEM thus if the requirements are not met then a plaintiff would need to bring his suit by regular meant = CORRECT?
What is the code that spells this out?
What is your thoughts on this point?
Submitted: 9 months ago.
Category: CA Real Estate
Expert:  Ray replied 9 months ago.

Hi and welcome to JA. Can you give me more information, is this a subtenant or say a family member you now need out of your place, some more information here please.

Customer: replied 9 months ago.
1.) The property was foreclosed on by Wells Fargo bank.
2.) Months before the foreclosure took place the former owner had rented to the person that is now a named defendant in an unlawful detainer action in the Santa Monica Court.
3.) The defendant served request for production of documents interrogatories and admissions. Bank’s counsel responds by stating in response to each request “this is not a landlord-tenant eviction based on either [CCP 1161 or CC 1946].
4.) Therefore my position in attacking this issue is to file a motion with the court stating they have no jurisdiction in the fast-track unlawful detainer system in light of the fact that the plaintiff is stating there is no landlord-tenant eviction. Which obviously requires the existence of such a relationship in order to have the privilege of getting into the fast-track eviction system.
5.) Thus I’m seeking a second opinion backed up with code supporting my position.
Expert:  Ray replied 9 months ago.

I am going to opt out for a California lawyer, you have not been charged, no need to reply here, it will be picked up, thanks.

Customer: replied 9 months ago.
okay
Expert:  socrateaser replied 9 months ago.

Hello,

Take a look at Code Civ. Proc. Section 1161a(b): "In any of the following cases, a person who holds over and continues in possession of...real property after a three-day written notice to quit the property has been served upon the person...as prescribed in Section 1162, may be removed therefrom as prescribed in this chapter:...(3) Where the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by such person, or a person under whom such person claims, and the title under the sale has been duly perfected."

In plain English, if the property was foreclosed, then, pursuant to the aforementioned CCP section, the new owner can utilize the unlawful detainer process.

I realize that my answer may not be exactly what you were hoping to read. However, under the circumstances, the best that I can do is to explain what the law is and is not, so that you can avoid expending valuable resources looking for answers that do not exist, and concentrate on the options that are actually available.
Please let me know if my answer is helpful. And, thanks for using Justanswer!

Customer: replied 9 months ago.
Got it. Please look again as to this point =
a.) The defendant served request for production of documents interrogatories and admissions.
B.) Bank’s counsel responds by stating in response to each request
“this is not The defendant served request for production of documents interrogatories and admissions. Bank’s counsel responds by stating in response to each request “this is not a landlord-tenant eviction based on either [CCP 1161 or CC 1946]. based on either [CCP 1161 or CC 1946].If their saying it "NOT a landlord-tenant eviction" then they lost there right to be in an eviction - yes?I'm I missing something here.
1161b. (a) Notwithstanding Section 1161a, a tenant or subtenant in possession of a rental housing unit under a month-to-month lease or periodic tenancy at the time the property is sold in foreclosure shall be given 90 days' written notice to quit pursuant to Section
1162 before the tenant or subtenant may be removed from the property as prescribed in this chapter. (b) In addition to the rights set forth in subdivision (a),tenants or subtenants holding possession of a rental housing unit under a fixed-term residential lease entered into before transfer of title at the foreclosure sale shall have the right to possession until the end of the lease term, and all rights and obligations under the lease "shall survive foreclosure"Thus who ever acquired the property (it went back to the bank- Wells Fargo) they take on the lease meaning they are the landlord. thus back to my thinking =If their saying it "NOT a landlord-tenant eviction" then they lost there right to be in an eviction - yes?you thoughts on this please
Expert:  socrateaser replied 9 months ago.

Good morning.

If you can prove that your occupancy falls within the scope of CCP 1161b, then because that code section provides an exception to CCP 1161a, then you would be entitled to a 90-day written notice of termination of tenancy -- or to "ride out" a fixed-term lease.

Plaintiff's interrogatory response that "this is not a landlord-tenant eviction," seems to me, non responsive, and potentially subject to being used in a summary judgment motion to prove that there is no evidence to support plaintiff's case (depends on the precise questions by defendant -- which I cannot consider, because it amounts to practicing law, and that's not permitted in this forum).

However, The burden of proving that the CCP 1161b exception applies is defendant's, because only defendant is likely to have the documentary proof that he or she is either under a month-to-month lease or fixed-term tenancy with the property's former owner.

I don't see that defendant's interrogatory response operates as an express admission that would vitiate CCP 1161a, because CCP 1161a does not require a landlord-tenant relationship. To the contrary, the exception of CCP 1161b is what requires the landlord-tenant relationship.

So, while I understand your point, I don't think that it's as straightforward as you suggest.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, the website retains your entire payment, and I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Expert:  socrateaser replied 9 months ago.

Errata: The following sentence should have read: "I don't see that plaintiff's interrogatory response..."

Expert:  socrateaser replied 9 months ago.

PS. If it matters to you, the other contributors with whom you have been and are currently corresponding are not, to my knowledge, licensed to practice in California -- whereras, I am.

Expert:  socrateaser replied 9 months ago.

Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer -- otherwise the website retains your entire payment, and I receive nothing for my efforts in your behalf.
Thanks again for using Justanswer!