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socrateaser
socrateaser, Attorney
Category: Landlord-Tenant
Satisfied Customers: 33504
Experience:  Retired (mostly)
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what is the time deadline to submit an appeal on a unlawful

Customer Question

what is the time deadline to submit an appeal on a unlawful detainer in california? The judgement was made at approximately 9:00 am pacific time against me to vacate property in 20 days and pay approximately $3,600. I wanted to appeal on several issues:
1. My 18 year old son was not named on either 30 day eviction notice and/or unlawful detainer. Does that mean that he can stay even if I have been ordered to leave. The ud stated that everyone in the house that was living there needed to respond within 10 days, however, my son was not listed in the original eviction notice.

2. the landlord that that I resided with and was a close friend for 8 years served me this notice 15 days before his death but not registered by court and was rescinded verbally. In addition we had no written lease agreement.

3. Can the plaintiff that claims he is Special adminstrater of estate execute an eviction notice from deceased when according to public notification he as not been established as of yet? (however, somehow the judge decided he had but unknown documentation none of which was provided to me.

4. Can the 30 day notice be signed and dated 5/1/2012 and ud service date on 4/29/2012?
Submitted: 2 years ago.
Category: Landlord-Tenant
Expert:  socrateaser replied 2 years ago.
Notice of appeal to the appellate division of the superior court from a limited civil case judgment ordinarily must be filed on or before the earliest of:

  • 30 days after the court clerk mails the party filing the notice of appeal a document entitled “notice of entry” of judgment or a file-stamped copy of the judgment, showing the date either was mailed (service may be by any method permitted by the Code of Civil Procedure, including electronic service when permitted under CCP § 1010.6 and CRC 2.250–2.261);

  • 30 days after the party filing the notice of appeal serves or is served by a party with a document entitled “notice of entry” of judgment or a file-stamped copy of the judgment, accompanied by proof of service (service may be by any method permitted by the Code of Civil Procedure, including electronic service when permitted under CCP § 1010.6 and CRC 2.250–2.261); or

  • 90 days after entry of judgment. See CRC 8.822 (a).

Note: Appeal of an unlawful detainer action does not stay the sheriff from forcibly evicting you from the rental property. In order to stay eviction, you must file a motion for a stay of execution, and show good cause why you should not be evicted (generally, this requires proof of a severe physical injury or illness in one of the tenants that would make eviction an extreme hardship).

 

You also asked about the following:


1. My 18 year old son was not named on either 30 day eviction notice and/or unlawful detainer. Does that mean that he can stay even if I have been ordered to leave. The ud stated that everyone in the house that was living there needed to respond within 10 days, however, my son was not listed in the original eviction notice.

 

A: If the original summons and complaint also contained a "prejudgment claim of right to possession," then your son can be evicted. Otherwise, he can challenge the eviction by filing a "postjudgment claim of right to possession" with the court. There is no official court form for this process. You will have to visit the county law library and ask the librarian to direct you to an appropriate pleading template.

 

2. the landlord that I resided with and was a close friend for 8 years served me this notice 15 days before his death but not registered by court and was rescinded verbally. In addition we had no written lease agreement.

 

A: If you did not specifically challenge notice to quit by a motion to quash with the court, then you waived any defect in the notice.

 

3. Can the plaintiff that claims he is Special administrator of estate execute an eviction notice from deceased when according to public notification he as not been established as of yet? (however, somehow the judge decided he had but unknown documentation none of which was provided to me.

 

A: That's interesting. If the purported administrator did not have letters of administration at the time of filing of the summons and complaint, then the UD judgment could be set aside by a motion for relief from judgment on grounds of lack of subject matter jurisdiction. The reason is because the person who sued out the UD had no standing to do so -- therefore the entire action must be voided by the court.


4. Can the 30 day notice be signed and dated 5/1/2012 and ud service date on 4/29/2012?

 

A: The date of the notice is not dispositive. What matters is when you are actually served. Sometimes proving this can be difficult, though. Under the circumstances, your best move may be to challenge the plaintiff as having no standing to sue, because of the lack of letters of administration from the court.

 

If you can't afford a lawyer, then for legal aid, see this link.

 

Hope this helps.

 

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

 

Hope this helps.

socrateaser, Attorney
Category: Landlord-Tenant
Satisfied Customers: 33504
Experience: Retired (mostly)
socrateaser and 3 other Landlord-Tenant Specialists are ready to help you
Customer: replied 2 years ago.

Thank you for advice.


 


Isn't an answer/objection of UD a request to quash order? or is it something totally different?


 


The fact that plaintiff is trying to execute an eviction that was not recognized by the court and the originator is deceased (and verbally rescinded between the deceased and I) grounds to appeal?


 


Who really has standing if plaintiff has not been legally appointed special adminstrater per legal notice and the house has been and is in foreclosure and set for auction? Who really has legal standing? I would think the bank would. Maybe I am wrong. In addition, no will is attached to anything. I believe there was a will but his unethical lawyer either shred it because nobody came forth with a copy and he is representing the plaintiff now in probate court. Kind of fishy or may even be a conflict of interest?

Expert:  socrateaser replied 2 years ago.
Isn't an answer/objection of UD a request to quash order? or is it something totally different?

A: Totally different. A motion to quash is a very specific pleading that claims that the notice to quit is defective on its face. If you didn't move to quash, then you waived your right to do so, and it no longer matters whether or not the notice was defective.

The fact that plaintiff is trying to execute an eviction that was not recognized by the court and the originator is deceased (and verbally rescinded between the deceased and I) grounds to appeal?

 

A: I don't understand the statement that the eviction is not recognized by the court. If the court gave the plaintiff a judgment of possession, then that's the end of the matter, at least as it applies to the named defendant(s). However, if the plaintiff never had standing to bring the UD complaint in the first place, because he/she wasn't the property owner, nor was he/she appointed as the deceased owner's personal representative by the court, then the plaintiff has no standing to sue, and that means the court has no subject matter jurisdiction, and that means that once this is proved to the court, the court must vacate the judgment and dismiss the plaintiff's complaint (or, suspend the case and let the plaintiff try to perfect his/her authority as personal representative of the decedent's estate, after which, the case can go forward again from the beginning. Meanwhile, however, you can stay in the property.

 

Who really has standing if plaintiff has not been legally appointed special administrator per legal notice and the house has been and is in foreclosure and set for auction? Who really has legal standing? I would think the bank would. Maybe I am wrong.


A: Only the owner (apparently deceased) has standing -- not the bank, not any relative -- only the owner, unless and until someone is appointed with authority by the probate court.


In addition, no will is attached to anything. I believe there was a will but his unethical lawyer either shred it because nobody came forth with a copy and he is representing the plaintiff now in probate court. Kind of fishy or may even be a conflict of interest?

 

A: The fact that there is or is not a Will is irrelevant. California has intestate succession laws, like every other jurisdiction. And, those laws determine who can be appointed as personal representative of the decedent's estate. Once that person is appointed, he/she can sue for unlawful detainer on any of the decedent's property. Until appointment, however, no one can sue for unlawful detainer -- and if anyone does, then that lawsuit must be dismissed and any judgment vacated, once the court is shown that the plaintiff had no standing as personal representative (or special administrator).

 

Now, if the property is actually foreclosed, then assuming that the bank wins the foreclosure auction, then the bank would have standing to sue for UD. But, that also means, under federal law, you are entitled to remain in the property for at least 90 days, if you are a tenant under a bona fide (honest) lease agreement.

 

Hope this helps.

 

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

socrateaser, Attorney
Category: Landlord-Tenant
Satisfied Customers: 33504
Experience: Retired (mostly)
socrateaser and 3 other Landlord-Tenant Specialists are ready to help you
Customer: replied 2 years ago.
so only a probate court judge can appoint a personal representative or special adminstrator for an estate. If so, a probate court judge appointment next of kin a special adminstrator, would there be any sense to go back and petition to execute estate?
Expert:  socrateaser replied 2 years ago.
If you mean, can the plaintiff get an appointment after the UD judgment and have it take retroactive effect, then the answer is "no." However, once appointed, the plaintiff could either file a new UD complaint against you, or alternatively, if the court sets aside the judgment, it could also stay any further action on the current UD action, until the plaintiff can obtain an appointment. The court might give the plaintiff 30 days to fix the problem, and then dismiss, if it's not resolved.

Hope this helps.
Customer: replied 2 years ago.

Is there some type of documentation that could back door what I know as per public hearing, nothing has been determined. I was not provided any documentation by court as to Special Adminstrator however, ruled against with penalties.


 


I am a former police officer with a master's degree, and fee like I am missing something?


 


What is the best avenue for appeal in your opinion? I can think of many.


 


In the event, that I do have to vacate, there is still an issue of my son that lives here and has not been named in either 30 day eviction or ud. If a writ is warranted, do they still have to evict my son? and start the process again? (which by my opinion or knowledge has not beeen established as of yet)

Expert:  socrateaser replied 2 years ago.

Is there some type of documentation that could back door what I know as per public hearing, nothing has been determined. I was not provided any documentation by court as to Special Administrator however, ruled against with penalties.


A: I don't understand your question. However, the botXXXXX XXXXXne is dirt simple. If the property was owned by a decedent, then whomever sues for UD must be appointed by the probate court with the power to bring a lawsuit on behalf of the decedent's estate. If the plaintiff was not appointed before he/she filed the UD complaint, then the judgment must be set aside by the UD judge, once it is proved that the plaintiff was not appointed, because that means plaintiff had no standing to sue, and that further means that the court had no subject matter jurisdiction to ender an unlawful detainer judgment. If that's the current situation, then file a motion with the UD court to set aside the judgment, provide proof that the plaintiff was not appointed to take legal action on behalf of the decedent's estate, and the court will vacate the judgment. Period, end of story.


I am a former police officer with a master's degree, and fee like I am missing something?


A: One of us is definitely missing something, because I've explained the same thing three times now, and you seem to be asking me the same question repeatedly. This suggests that either I'm not communicating the answer very well, I'm not understanding the facts, or you aren't understanding the answer.


What is the best avenue for appeal in your opinion? I can think of many.


A: I don't see any grounds, nor any reason, to appeal. All you need to do is prove that the plaintiff has no standing to sue, and that's the end of the case.


In the event, that I do have to vacate, there is still an issue of my son that lives here and has not been named in either 30 day eviction or ud. If a writ is warranted, do they still have to evict my son? and start the process again? (which by my opinion or knowledge has not been established as of yet)

 

A: I already explained this above, so I'll just quote myself here:

 

  • If the original summons and complaint also contained a "prejudgment claim of right to possession," then your son can be evicted. Otherwise, he can challenge the eviction by filing a "postjudgment claim of right to possession" with the court. There is no official court form for this process. You will have to visit the county law library and ask the librarian to direct you to an appropriate pleading template.

 

Note: It does seem like one or both of us is missing something with all of this. Otherwise, I wouldn't have to repeat my answers. Unfortunately, I don't know what I'm missing, because only you know the facts -- I can only answer based on what you disclose.

 

Hope this helps.

 

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Customer: replied 2 years ago.

is it a common practice for lawyers to provide false documentation in the hopes that the judge will misinterpete because of time constraints and caseload with defendent that has no legal counsel?


 


In my experience in criminal court testifying as a police officer, many times, judge would prompt young prosecuters as to the next possible avenue. In this case, do you think that since I did not request a motion, that judge was not required nor moved to help me in this matter? Just asking in your opinion. I know it has nothing to do with case but just for shits and giggles in case I ever comes across anything legal, I may have a better understanding.


 


You have been extremely helpful and thank you very much.


 


I will be using the link to acquire counsel for upcoming appeal. Are you sure that appeal is within 30 days and not five? Appears like a long time. Just making sure. Thank you very much.


 


Sincerely,


 


Kellie Walden

Expert:  socrateaser replied 2 years ago.

is it a common practice for lawyers to provide false documentation in the hopes that the judge will misinterpret because of time constraints and caseload with defendant that has no legal counsel?

 

A: In state court -- you bet it is. See below.


In my experience in criminal court testifying as a police officer, many times, judge would prompt young prosecutors as to the next possible avenue. In this case, do you think that since I did not request a motion, that judge was not required nor moved to help me in this matter? Just asking in your opinion. I know it has nothing to do with case but just for shits and giggles in case I ever comes across anything legal, I may have a better understanding.


A: State court judges are elected officials. If they want to keep their jobs, then they have to be more responsive to political needs of the community. Can you imagine a state court criminal law judge that held the prosecutors' feet to the fire. Most defendants would be released for lack of probable cause -- and the community would be outraged. Local police, county sheriffs and district attorneys offices don't have the budget to properly investigate and prosecute criminals, so judges heavily lean towards the prosecution wherever they can. And, in traffic court, let's face it, since the bail/fines go to the local judicial district, and there is no court reporter required for hearings or trial (unless the defendant pays for one in advance -- which is as expensive as the traffic bail/fine), the judge pretty much operates on a "guilty until proved innocent" standard (ed. op.).


You have been extremely helpful and thank you very much.

 

A: You're very kind. If it seems sometimes that I have no "bedside manner," it's because I have no bedside manner. I believe that persons in difficult legal circumstances should get the unvarnished truth concerning their options so that they know what they can and cannot do, which permits them to take action. Many/Most attorneys are afraid of losing a client, so instead of telling the client the truth, the attorney will remain vague about options, and frequently not bother doing any research -- because (1) once the attorney knows what the options are, he/she has a duty to explain the options to the client; (2) research takes time and costs money, which the client won't want to pay for, whereas time writing pleadings and in court is obviously compensable by the client, so the attorney gets less grief for filing pleadings which, were the attorney to have researched to options in the first place, the attorney would have not offered to file, because the attorney would have known it was a waste of time; and (3) sometimes filing and arguing a pleading which has little or no legal support, works, because opposing counsel is equally uninformed, as is the judge -- and the result is that something which would otherwise be laughed out of court, were everyone involved acting competently, ends up being a winning tactic.

 

This is (ed. op.) an artifact of the state court system -- judges don't have the budget to hire a law clerk (lawyer) to read party pleadings and research the law, before the judge considers them. In federal district court, every judge has a law clerk, and these types of tactics inevitably fail. Lawyers who don't know what their doing, routinely lose motions and trials, because they cannot get away with "wingning it."

I will be using the link to acquire counsel for upcoming appeal. Are you sure that appeal is within 30 days and not five? Appears like a long time. Just making sure. Thank you very much.


A: Yes, I'm sure. The means to prevent eviction is to file for a stay of execution.

On petition of the defendant in an unlawful detainer (or forcible entry or detainer) action, the trial court may order the judgment stayed pending appeal when it finds that the absence of a stay would cause “extreme hardship” to the defendant and that the issuance of a stay would not cause “irreparable injury” to the plaintiff. Code Civ. Proc. § 1176; If the stay is denied, the defendant may “forthwith” file a petition for an “extraordinary writ” (usually mandate) with the “appropriate appeals court.” Code Civ. Proc. § 1176 (No absolute filing deadlines are imposed by the statute.)

In plain English, the appeals process uses the ordinary time lines. However, the defendant/judgment debtor is entitled to request a stay of execution without bond, and if the trial court denies the motion, then the defendant can immediately petition the court of appeals to order the stay by petition for writ of mandate to reverse the trial court denial, and the court of appeals must consider the writ petition (which is ordinarily not required in any other civil action).

The system works better than any available alternative, but it doesn't work as designed, and it probably never will, because only the wealthy can afford "due process of law."

Best wishes.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Customer: replied 2 years ago.

sorry if we seemed so repetitive regarding probate court appointed representative. we were just baffled how a next of kin can state that he is the special administrator for the estate one day, and petition to execute estate in probate court the next day and recieve a favorable judgement (ud plaintiff wins) when the judge read the public notice showing that the plaintiff, which is sueing as special administrator, is petitioning to execute estate. Also, the day after the UD trial and judgement (06/27/2012), I went to the probate hearing where the UD plaintiff was petitioning (attorney submitting petition was deceased personal attorney) to execute estate to object (06/28/2012). Outside with a docket list with a note saying that the bond was waived, but when I objected at the clerk of the courts table, the court stated that the case was off the waive list. I went in front of the judge. He asked if I submitted my opinion. I told him that the public notice stated that I could just appear, so he gave me two week to file objection and continued to 8/2/2012. One interesting thing, the judge said under his voice to himself, while looking at a separate piece of paper, "this paperwork expired today." Do have an idea what that meant? Do you think that the plaintiff (next of kin) and deceased personal attorney is doing all this trouble for special adminstrator to try to sell the house which presenting in foreclosure before auction and keep the profits from sale or auction. There is approximately 300,000 in equity. Funny how the deceased personal/estate/financial planner let this house go to foreclosure and auction.


 


want to tip you, but it charges me another $58 to do so.

Expert:  socrateaser replied 2 years ago.
sorry if we seemed so repetitive regarding probate court appointed representative. we were just baffled how a next of kin can state that he is the special administrator for the estate one day, and petition to execute estate in probate court the next day and receive a favorable judgement (ud plaintiff wins) when the judge read the public notice showing that the plaintiff, which is sueing as special administrator, is petitioning to execute estate.

A: It's not that complicated. A person can petition for appointment as both special administrator and for general powers. This can happen in the same action or in different petitions. However, for the purposes of the UD action the only thing that matters is whether or not a Judicial Council DE-150 form appointed the plaintiff/judgment creditor as special administrator for the purposes of bringing the UD action before you were served with the summons and complaint. If yes, then the judgment is valid and enforceable and you're done. If no, then you can move the court to set aside the judgment for lack of standing.

The publication issue is irrelevant to a special administrator's powers. Publication only applies to the petition for full general administrative powers (or as you term it, to "execute" the estate).

Also, the day after the UD trial and judgement (06/27/2012), I went to the probate hearing where the UD plaintiff was petitioning (attorney submitting petition was deceased personal attorney) to execute estate to object (06/28/2012). Outside with a docket list with a note saying that the bond was waived, but when I objected at the clerk of the courts table, the court stated that the case was off the waive list. I went in front of the judge. He asked if I submitted my opinion. I told him that the public notice stated that I could just appear, so he gave me two week to file objection and continued to 8/2/2012. One interesting thing, the judge said under his voice to himself, while looking at a separate piece of paper, "this paperwork expired today." Do have an idea what that meant? Do you think that the plaintiff (next of kin) and deceased personal attorney is doing all this trouble for special administrator to try to sell the house which presenting in foreclosure before auction and keep the profits from sale or auction. There is approximately 300,000 in equity. Funny how the deceased personal/estate/financial planner let this house go to foreclosure and auction.

A: I think you may be confused by the separate petition for separate and general powers of administration. All that matters to you is whether or not the plaintiff/judgment creditor has special administration powers (DE-150). If yes, then you're toast. Otherwise, you can move to set aside the judgment.

want to tip you, but it charges me another $58 to do so.

A: You will have to contact customer service and tell them exactly how much you want to pay. It appears from my info that you have paid twice already with two $8.25 bonuses. If that's not what you intended, then please contact customer service. I want happy customers.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Customer: replied 2 years ago.

I will make sure customer service adjust the bonuses. You have been fanastic.


 


Can we find out if the plaintiff is Judicial Council DE-150 form appointed making him/her special administrator? if so, how?

Expert:  socrateaser replied 2 years ago.
Can we find out if the plaintiff is Judicial Council DE-150 form appointed making him/her special administrator? if so, how?

A: Every Superior Court is supposed to have online access to pending case files. Some, but not all, courts have document download availability. You will have to contact the probate court clerk and see if there is a DE-150 filed with the court. If it's online, then you may be able to download it without visiting the courthouse. For a list of Superior Court websites, see this link.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Customer: replied 2 years ago.
thank you. i went to the orange county, ca superior court website, went to on-line services, probate notes, searched by person <fred a. read>, and the summary of actions appeared. seems like the actions were all filings and no appointments. if allowed, can you please check so we can put this to rest. going to put bonus on different card. thank you!!!
Expert:  socrateaser replied 2 years ago.
Assuming that I have the correct case number: [last four digits] 0906, then I don't see an order of appointment for a special administrator or personal representative. Therefore, in my opinion, the plaintiff has no standing and if you move to vacate the UD judgment for lack of standing to sue, then the court must set aside judgment, and dismiss the action.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Customer: replied 2 years ago.
Thank you. I called the legal aid hotline and received five referrals. Two of them stated that they do not these types of actions. The other three quotes $2,000-3,000 to take the case. So, I went to the Orange County Superior court and spoke to the Self-Help receptionist. She told me that the defendant needed to use petitioning paper, " to move vacate the UD judgement for lack of standing to sue." She also told me that an attorney also helps people, too. Is this a "safe" next step? Under [Name of filing party], IN PRO PER, what does IN PRO PER mean? Any additional advice? I will just call in for additional bonuses. Thank you!
Expert:  socrateaser replied 2 years ago.
I'm sorry, I'm a bit confused. According to my records, you just received a refund on your account for your previous payment -- which means that I don't receive anything for my answers to you.

Now, you are asking another question.

I don't understand your intent or actions. Maybe there is some misunderstanding -- perhaps you can explain.

Thanks.

Customer: replied 2 years ago.

I will call customer service again.

Expert:  socrateaser replied 2 years ago.
No worries. I'm just trying to figure out what's up. I thought things were going pretty well here. Let me know when you have things straightened out.
Customer: replied 2 years ago.
Things are going great. You have been a "life-saving." I think I am suppose to rate and bonus you after our discussions were completed. I will get it straighten out asap.
Expert:  socrateaser replied 2 years ago.
Okay. Please don't reply again, until everything is straightened out -- because when you reply, I'm locked into responding to you and I can't help anyone else in the meantime.

Thanks.
Customer: replied 2 years ago.
spoke to customer service. should be fixed. they suggested that I will rate and bonus you at the end of our discussions. sorry I misunderstood the process.
Expert:  socrateaser replied 2 years ago.
She told me that the defendant needed to use petitioning paper, " to move vacate the UD judgment for lack of standing to sue."

A: I have no idea what a "petitioning paper," as it concerns this issue. Your response is to file a motion to set aside judgment. There is no Judicial Council Form. You may have to visit your county public law library and ask the librarian to direct you to an appropriate pleading form. Here is a discussion from the Sacramento County Law Library with a list of relevant publications (click here). Your judgment may not have been awarded as a default judgment, but the relief is the same. It is well established in law that a court always has authority to set aside a judgment where the court had no subject matter jurisdiction at the time that the case was commenced.

She also told me that an attorney also helps people, too.

A: That must have been inspiring to hear (apology for sarcasm).

Is this a "safe" next step?

A: Safe? I'd say it's your only recourse, based upon what you've related here.

Under [Name of filing party], IN PRO PER, what does IN PRO PER mean? Any additional advice? I will just call in for additional bonuses.

A: "In pro per" means "representing oneself." It's short for "in propria persona."

Hope this helps.

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Customer: replied 2 years ago.

I spoke to customer service and bonused you $60. Sorry I can not give you more. You have been very helpful. I went down to the law library and self help center. We showed the "self-help" attorney our information and asked her how to move to vacate the UD judgement for lack of standing to sue. She asked where we received this information from and if we were working with an attorney. I told her that i was utilizing "Just Answer" for our questions, and needed support from the law library for procedures. She reviewed our information, and on pleading paper under Pleading title wrote,"Notice of Motion to vacate the judgment EX PARTE Application for order setting aside the Judgment based on Plaintiff's Lack of Standing to Bring the action Memorandum of Points and Authorities." She also asked me to certification Summary of Actions. Later, she emailed and stated that I must file a post trial Motion to Vacate Judgment. She then stated to go to the law library to research the law for bringing this motion.


 


What do you think? Should I utilize the "Just Answer" Law Library? I also went to the Probate for certificated papers. They were going to charge me $25 per certificated paper. There must have been 6-7 petitions filed. Which one proves that the plaintiff did not have standing?"


 


 

Customer: replied 2 years ago.
,

I spoke to customer service and bonused you $60. Sorry I can not give you more. You have been very helpful. I went down to the law library and self help center. We showed the "self-help" attorney our information and asked her how to move to vacate the UD judgement for lack of standing to sue. She asked where we received this information from and if we were working with an attorney. I told her that i was utilizing "Just Answer" for our questions, and needed support from the law library for procedures. She reviewed our information, and on pleading paper under Pleading title wrote,"Notice of Motion to vacate the judgment EX PARTE Application for order setting aside the Judgment based on Plaintiff's Lack of Standing to Bring the action Memorandum of Points and Authorities." She also asked me to certification Summary of Actions. Later, she emailed and stated that I must file a post trial Motion to Vacate Judgment. She then stated to go to the law library to research the law for bringing this motion.

 

What do you think? Should I utilize the "Just Answer" Law Library? I also went to the Probate for certificated papers. They were going to charge me $25 per certificated paper. There must have been 6-7 petitions filed. Which one proves that the plaintiff did not have standing?"

 

 

Expert:  socrateaser replied 2 years ago.
What do you think? Should I utilize the "Just Answer" Law Library?

A: This isn't a law library. I cannot draft pleadings for you. I gave you a link with some applicable resources. Here it is again.

I also went to the Probate for certificated papers. They were going to charge me $25 per certificated paper. There must have been 6-7 petitions filed. Which one proves that the plaintiff did not have standing?"

A: Since there is no DE-150 filed with the court, you can't produce an order that does not exist. You could ask the court clerk to certify a docket report stating that the clerk has searched the case file and that there is no order granting the plaintiff either special or general administration authority. Or, you can simply have the clerk print the report for you and then present it as an exhibit to your declaration of acts stating that you searched the court records and there is no evidence of any order granting special or general administration to the plaintiff. Therefore, the judgment must be set aside and case must be dismissed for lack of subject matter jurisdiction.

Then, it's up to the plaintiff to prove the existence of his/her authority to sue on behalf of the decedent's estate.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

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Customer: replied 2 years ago.

Should we ex parte motion? What are the reasons we can use?

Expert:  socrateaser replied 2 years ago.
An ex parte motion requires allegations of irreparable or great harm. Seems to me that being evicted is pretty irreparable harm.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Expert:  socrateaser replied 2 years ago.
Hello again.

FYI: customer service informs me that all of your payments have been refunded to your account, and that I received no payment from you for $60 or for any other amount. If this is not what you intended, then you may want to contact customer service and correct the miscommunication.

Best wishes.
Customer: replied 2 years ago.

spoke to your customer service representative. lots of miscommunication!!! Might want to follow up with supervisor. Once you response to this next question, I will rate you and bonus.


 


All the links are very informative, but too overwhelming to product the correct plead. Having to hire a local attorney to file appropriately for this court. Based upon the information you provided, it seems "ironclad." But can you think of a motion or appeal, on the plaintiff side, that may cost me more money and time.

Customer: replied 2 years ago.
,

spoke to your customer service representative. lots of miscommunication!!! Might want to follow up with supervisor. Once you response to this next question, I will rate you and bonus.

 

All the links are very informative, but too overwhelming to product the correct plead. Having to hire a local attorney to file appropriately for this court. Based upon the information you provided, it seems "ironclad." But can you think of a motion or appeal, on the plaintiff side, that may cost me more money and time.

Expert:  socrateaser replied 2 years ago.
If the judge follows the law, he must set aside judgment and dismiss the entire action, because the plaintiff never had subject matter jurisdiction. To do otherwise, is to establish the precedent that a legal stranger can evict a resident from his/her home. That is an absurd proposition.

I won't speculate at this point as to plaintiff's possible response.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

socrateaser, Attorney
Category: Landlord-Tenant
Satisfied Customers: 33504
Experience: Retired (mostly)
socrateaser and 3 other Landlord-Tenant Specialists are ready to help you
Customer: replied 2 years ago.
I wanted to find out how much it would cost to have an attorney create the motion to vacate UD judgment for lack of standing to sue because the plaintiff never had subject matter jurisdiction at the time that the case was commenced. I appreciated the links, but I did not feel confident enough to even attempt the motion.


Here is what the attorney emailed back:


Yes, I am interested in vacating a Judgment.
For a U.D., you would not be restored to occupancy, just no money Judgment against you.


Is this correct? court resides in Orange County, CA
Expert:  socrateaser replied 2 years ago.
I'll try to clarify.

First, just so we are on the same page, I don't recall your having ever mentioned that you had already vacated the property. My impression has always been that you are still in the property and the sheriff has not effected your eviction.

That said, the rule is that if you have already vacated the rental; and if the judgment is set aside before the landlord re-rents the property; then you are entitled to be restored to possession of the rental property.

However, if the landlord has already re-rented the property to a new tenant, then you cannot be restored to possession (because it would be unfair to the new tenant), but you would be entitled to an independent damage action for value of the use of the real property during the period of the plaintiff's and/or new tenant's wrongful occupation, plus the reasonable cost of repairing or restoring the property to its original condition and the costs of recovering possession.

Obviously, if you have not yet been evicted, then the set aside would restore your legal right to possession, and you wouldn't have to be restored to physical possession because you still have possession.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Customer: replied 2 years ago.
the attorney we were going to hire to file motion to vacate, stated that we needed to appeal because the standing was litigated in trail, but the document was not certificated. You and the self-help attorney both said that it is a motion to vacate judgment. What do you think?
Expert:  socrateaser replied 2 years ago.
If standing was already litigated and the court held that the plaintiff had standing to sue, then the attorney is correct and you would have to appeal that ruling, because the trial court has reason to reverse its prior ruling. If standing was not already litigated, then you can move to set aside/vacate in the trial court, and if you lose, you would appeal from the denial of your motion.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Customer: replied 2 years ago.
Is there a deadline to appeal this judgment?
Expert:  socrateaser replied 2 years ago.
See this link.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Customer: replied 2 years ago.
Looking at the post trial judgment paperwork, the judge accepted the plaintiff's objective to the defendent 's evidence/exhibits which was the public notice from the internet showing that the plaintiff was petitioning to execute estate the day after UD trial. One attorney said that he did not allow it because it was not certified. Seems like the judge made the right decision and did not allow it. So does this situation still call for an appeal or move to vacate judment? Also, can you tell us a little more about a "stay" and documents for file for one. Is it advised under this situation? If there was not a written rental agreement, can the court waive a bond for the stay?
Expert:  socrateaser replied 2 years ago.
A public notice made by a party is an evidentiary "admission," which is admissible into evidence as an exception to the hearsay rule. And, the notice is authentic if is demonstrated to be published in a newspaper of general circulation. So, on its face the public notice should have been admitted into evidence as proof that the notice was given and whatever assertions made therein were admissible over objection.

Whether or not the notice proves that the plaintiff had standing to sue is a different question. In my opinion, the notice is only partial proof, because the plaintiff could have had an order granting special administration powers.

In the end, while the above discussion may be useful on issues of evidence, it has no relevance to whether or not the judgment must be set aside. If there is a judgment entered, then it is valid until it is set aside. And, the only way to get the judgment set aside is to file a motion to set aside the judgment, and prove that the plaintiff had no standing to sue. Period, end of story.

Re stay of execution, defendant must show extreme hardship (usually life-threatening physical illness, or similar). I don't see much advantage to this tack. In my view, if you cannot get the judgment set aside by the trial court, then the next step is to file an appeal with the District Court of Appeals, or Appellate Division of the Superior Court, if the case is limited civil ($25,000 or less) and try to get the judge's decision overruled.

You can petition for a "supersedes writ" from the appellate court to stay execution without bond, since it's unlikely that the trial court will grant a stay.

Note: I feel that this thread is becoming a bit of a treatise on landlord-tenant law. There are publications that you can purchase that can provide you with comprehensive in-depth analysis of law and procedure. I realize that you have been quite generous with your previous payment, however at this point, I also think you have received more than your money's worth. So, if you would like to continue here, rather than spend money on a civil practice guide, I will certainly be happy to continue trying to assist -- however I would appreciate another show of good faith -- if you take my meaning.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Customer: replied 2 years ago.

when down to the probate court and read all the documents and ordered filed. The probate judge gave the plaintiff special adminstration letters which gave the rights for plaintiff to sue. Wish we had access to those documents earlier.


 


One last question before we close this out and bonus you. The tenant who lived here before, which also had a verbal agreement with deceased landlord, just got out of jail, after serving a 3-4 month sentence, and was upset that the deceased landlord, rented the room without her knowing. What rights does she have being incarcerated and unaware of situation? She has moved back in and does not intend to leave.

Expert:  socrateaser replied 2 years ago.

when down to the probate court and read all the documents and ordered filed. The probate judge gave the plaintiff special administration letters which gave the rights for plaintiff to sue. Wish we had access to those documents earlier.


One last question before we close this out and bonus you. The tenant who lived here before, which also had a verbal agreement with deceased landlord, just got out of jail, after serving a 3-4 month sentence, and was upset that the deceased landlord, rented the room without her knowing. What rights does she have being incarcerated and unaware of situation? She has moved back in and does not intend to leave.

A: Occupants not named in the writ of possession and who were not served with prejudgment claim of right to possession process might be entitled to contest enforcement of the writ against them. Code Civ. Proc. §§ 415.46(e), 1174.3(a).

If such unnamed occupants claim a right to possession accruing prior to commencement of the underlying unlawful detainer action, or claim to have been in possession of the premises on the date the UD was filed, they cannot be forcibly removed until their timely postjudgment claims are resolved. CCP § 715.020(d).

In plain english, the other tenant needs to serve a form CP10 on the sheriff's civil department and file a copy or a sheriff's receipt with the court.

Note: I am deeply sorry that the special administration order did not appear in the online court records. We could have saved a lot of time. I also apologize if I offended you in any way. That wasn't my intent. There are a lot of people who come here, expend a huge amount of my time, and then obtain a refund, leaving me basically as having been played for a sucker. That's the risk of helping people in this forum -- and, I accept the risk, because I want to help others, and because a sufficient number of persons do voluntarily pay. So, it generally works out for everyone -- though at times, I feel like tearing my hair out.

I hope I have been of some help to you.

NOTICE: My goal here is to entertain while educating the public about the law. I hope my answer is useful and informative to you. During our conversation, the website may ask you to rate my answer. If you rate my answer lower than the middle rating, then the website retains your entire payment, and I receive nothing. It is entirely your choice as to how you rate my answer. However, because your payment to me is in the nature of a donation/gift, rather than as compensation for any services rendered, you are entitled to know how your rating affects the final distribution of your donation.

If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!


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