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CalAttorney2, Attorney
Category: CA Real Estate
Satisfied Customers: 10244
Experience:  I have experience representing HOAs, homeowners, businesses, and other individuals in real estate matters.
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This is their second eviction attempt. During the first I

Customer Question

This is their second eviction attempt. During the first I wasn't named in the complaint and after we received the Clerk's notice I awaited the summons, while my roommate mistakenly believed the Clerk's notice was the summons. He and I weren't really speaking,
so he filed an answer and I awaited the complaint. When we received a notice for a trial date, I went down to discover a default judgment had been entered against me. I attempted to vacate the default, but because I wasn't named in the complaint, the clerk
wouldn't let me file anything. I couldn't file a prejudgment claim to right of possession because it was post judgment, and was told I had to wait for the writ of possession to be served so I could file a regular claim to right of possession. I didn't end
up having to, because my roommate got the case thrown out at trial; it turned out that the proof of service filed was for the incorrect address. They filed a second case 4 months later based on a different cause of action, and again only listed one tenant,
who had vacated two months prior, which they knew. So, no one who lived here was included on the complaint. I waited about 10 days for it to be served. Since no one who lived here was named, no one could file anything without filing the prejudgment claim.
So I did, to try and quash the summons which hadn't arrived, and there was no way to know when they would pretend to have served it, because I was told it was common for them to file the proof of service and the default paperwork at Simultaneously. I filed
the prejudgment claim, but at the clerks suggestion, waited a few more days to see if the summons arrived. About a week later, I filed my motion to quash, which was denied without argument since I had filed a prejudgment claim. Of course, nowhere on that form
does it tell you you're giving up the right to claim the complaint was never served. So, I filed a writ petition, and pointed out the obvious dilemma, I was faced with. It was denied, At this point I went to visit the case file so I could actually get copies
of the complaint and the proof of service. I tried to fax file my answer, which for some reason didn't get filed, but I used an eFax service so I could document what and when I sent it for my motion to vacate the default that was entered against me 2 weeks
after I thought my answer filed. When I hadn't received a trial date, I investigated, discovered the default, and attempted to vacate it . In each motion I asserted that I'd never been served, but I also left one of my roommates to do what I was instructed
to do during the first case, as a precaution. My first motion to vacate was rejected because I didn't file the affidavit I was supposed to. I refiled the ex parte motion, then was unable to appear because I was in the ER passing a kidney stone. When I recovered
from that and the subsequent infection, I once again refiled my motion to vacate, but it was denied because "I had enough time". I the filed my motion to reconsider emphasizing that I'd never been served, and it was denied again. The difficulty is that they
used a registered process server, so the presumption is I'm lying. However, the proof of service states that he served the summons to the named defendant, but he had been incarcerated, which is easy to demonstrate. The Notice to Vacate has since arrived. It
was not served with a claim of possession because they checked the box that they had served the prejudgment claim.. My roommate went down to file one but the clerk wouldn't accept it without the sheriff's stamp. The clerk advised us that we needed to be here
for the lock out so we could tell the sheriff then we'd never been served, but when I called them they wouldn't tell me when the lock out was scheduled for, and told me to bring down my paperwork. I did so, and the sheriff refused to give me the stamp because
they said I had to argue that the claim of possession was never served with the court, not them. Today, I finally compared my original prejudgement claim filing date to the date of service on the proof of service. I filed my prejudgement claim 2 days before
they claimed to have served me -- but because I filed my motion to quash almost a week after, they picked a date to lie about it, and guessed wrong. So, I can file something, but what to stay the execution of the writ? My roommate has a valid claim, but he
is being disallowed by the clerk from filing a form the sheriff won't give him and has no recourse to file anything or argue to anyone. The process service is a perjurer, and it's plain and simple to prove, but to whom, and how? I can be locked out at any
moment, and we're the only one who has played by the rules. What do you suggest?
Submitted: 2 years ago.
Category: CA Real Estate
Expert:  CalAttorney2 replied 2 years ago.
Dear Customer,You have been getting some very questionable advice (Court Clerks are not supposed to give any legal advice, I am actually surprised that you received anything from them at all). Your very best option here is to contact your local bar association and ask for a referral to legal aid for tenants (most California Counties have attorneys that help tenants with unlawful detainers for free or for reduced cost). Your series of filings has made your case somewhat confused, and the "sewer service" by this process server has complicated it moreso.It is possible to file another ex parte motion to "stay the writ of eviction" pending an appeal. You can also have your roommate file one as an unnamed occupant. (he probably has an easier claim to prosecute here).Really though, your best option here is probably to negotiate with the landlord directly, or through a mediator.I don't know why the landlord wants to evict you, but unless you have a defense other than he (or his lawyer) can't seem to find the right people to serve, you will eventually be properly named and evicted. Contact the landlord (either directly or through a mediator - your local bar association can give you referrals to landlord/tenant mediators as well), and see if you can set up a short mediation to get a "mutually agreeable resolution" to your situation, perhaps an agreed upon move out where you will be able to avoid being named as a defendant in an eviction proceeding (making it easier for you to rent an apartment in the future), and agreeing to leave without your landlord having to pay for a sheriff's eviction (so he can save money), in exchange for you getting to stay in the unit for a short time longer.Make sure to get any agreement in writing.
Customer: replied 2 years ago.
This isn't about staying here as much as it is A) getting the process server whom I feel is the equivalent of a lying notary, as his deeds have very real consequences, investigated for perjury (which seems easy enough since the Kettering he claimed to have served was in county jail for two months before and a month after, he claims to have served him two days after I filled my prejudgment claim, casting quite a shadow on his truthfulness as well as the statutory assumption that having filed such a claim is by definition the equivalent of having been served thus removing all of someone's claims to make a jurisdictional argument despite such vital information not being included on the form (truly, the clerk shouldn't have accepted my prejudgment claim without the process server's initials, date and time, I'd they can't accept my roommates claim without the sheriff's stamp now) a way to close this loophole in the law because as it is, most evictions have pro per litigants and if they can be exploited so blithely by simply leaving them off the complaint, failing to amend it, then finding a dirty process server to commit perjury knowing that there are no safeguards to prevent them from doing so? That's a problem. Now, if you want to tell me the Clerk's errored in saying that I couldn't make an ex parte motion as an unnamed defendant when I attempted to do so and made them go double check with their supervisor, you have my attention. But while I'll admit that I didn't research the issue more than a day, I wasn't able to find the statute or corresponding case. Or if you're just saying that because most pro per litigants have no real idea what they're talking about, and that their assertions aren't taken seriously or even really read because the presumption is they aren't going to say anything worthwhile therefore I should go pay an attorney I might admit you're right --but that's awfully sad state of affairs -- and really, all the safeguards that exist were instituted because ultimately the law must be adhered to and and non-members of the Bar shouldn't be victimized by holes in procedure like this. It may sound convoluted, and it is, because it's a rather unusual set of circumstances that as far as I can tell the law didn't envision, protect, or prevent against -- but that makes this ripe for someone to create new law. Frankly, it's not glory I seek. But nor do I have money to retain counsel, and legal aid either has no idea how to proceed, or it won't try because they believe it to be too late. Sadly, there aren't enough appeals and therefore a paucity of case law in this arena compared with others to fight the discovered wrongs, despite it being expected the owner will prevail eventually. If they've behaved badly, they may still prevail but not escape consequences for wrongdoing. So, I probably do need a lawyer, but they need to be a) a real one who can get things done and b) willing to work for the greater good on this one. You know as well as I do that a random spin on the Bar referrals wheel isn't likely to produce someone with the time, inkling, or talent. It's possible, but I've never been lucky in the casino. So, if you can refer me to someone with the gumption to take this on, please do. But otherwise, what I really need to know here is the mechanics. What's the best direction to attack this from on appeal, would you think? What does one answer when the clerk says you're not named on the case, you have no standing so can't file though you can have a judgment against you as an unnamed defendant. I realize that's giving away state secrets (though I'm sure they're published somewhere). If you'd rather talk on the phone to save time. (I know how long it takes to write a lengthy answers) just let me know.
Expert:  CalAttorney2 replied 2 years ago.
Dear Customer, I think that while you may be dealing with unfortunate (or unusual) circumstances, your assertions are not particularly accurate (nor do I believe are your legal arguments).The California Courts actually have a lot of very helpful resources for "pro per" tenants (and landlords) so they do not expect you to fend for yourself blindly, see:, you can also find information at your local law library or online (the Sacramento law library is another good online resource for California law).Pursuing a claim based on "principles" is a bad strategy base - you are unlikely to accomplish much by doing this, and punishing or exposing a negligent process server is not going to help you with your housing matter (you can file a report with the California Attorney General, and the AG can investigate the matter - they can potentially revoke any licensing that the process server holds, or take similar action against them), but it isn't something you are going to be able to resolve in your unlawful detainer matter. You can make a report to the CA AG here: your landlord's unlawful detainer named the named tenants, and, "all occupants" then their unlawful detainer is sufficient. The eviction is going to be effective, and you aren't going to be able to raise the various defenses you have identified above (the legal aid folks you talked to earlier are correct (as was the court) when they told you "it was too late", this is true for both you and your roommate). The landlord is not required to specifically name each of you, and if your roommate accepted service of the complaint, and you then filed a court pleading, the court isn't going to accept inadequate notice on appeal.You can appeal if you have a substantive defense (some reason why your landlord shouldn't evict you - such as they are saying you haven't been paying rent but you really have), but if your defense is purely procedural (all of the things you identified above are procedural), this is too late.You can still file a motion to "stay the eviction" but this is only going to get you an additional couple of days, or a week.If you just want to delay the action, you can file an appeal, and file a motion to stay the eviction (you must do both, an appeal alone will not stay the eviction), but most judges are not going to grant the stay unless your appeal has merit (the stay is discretionary).
Customer: replied 2 years ago.
Thanks for at least answering a couple of my questions. Just to correct you though -- no one ever accepted service of the complaint is the problem. Not one person. It is a falsehood that service was ever attempted. The presumption of that not being the case is The crux of the problem. If the clerk had insisted that the process server's initials and time stamp been on the form they handed me to fill out themselves with the same watchful eye that they have requiring the sheriff's stamp on the claim to possession, things may be slightly different, but I'd be in the same spot my roommate is now, which is locked out without the ability to even speak to a judge because of the rules' failure to accommodate this set of circumstances. While service is a "mere procedural argument" I had understood jurisdiction to be the cornerstone of any courts ability to even render judgment. I've also understood that such procedural arguments are quite germane in limited civil matters. And just one more point: you may have your own feelings about my claim on a procedural issue -- and the court may have prejudice about my assertions in my I-thought-filed then proposed answer absent my evidence for my assertions which I thought were to be saved for trial -- but it seems to me that the landlord in this instance has gone to great lengths to ensure that procedure alone was needed to win this battle. So, you may wish to revise some of your own prejudices. Not every landlord deserves the assumption that their case has merit, simply because they assert one then let procedure lock people out. I would say that if they had a meritorious case, they wouldn't need to hide in the shadows not serving the complaint or including the names of those they know well in the suit to begin with. (Incidentally, CCP 474 does in fact state that it is the plaintiff's responsibility to amend the complaint as soon as they know the defendants name. Considering they reside part time in the house, have hand written notes addressed to both of us, and we have both resided here for almost a year, their claim to not know who we were was indeed intentional and designed to play upon "procedure". But I see well enough the prejudicial burden I fight against not just in you, but in the court itself, which is why I made the statements I did. I understood the rules to be the rules in the law. I see now that for some reason they matter little when you're presumed to just be a lying tenant trying to get over. If I'd had something to hide I'd bit jagged tried to file my answer. Why it was not I still don't know. And while being ill for two weeks shifted things so radically seems monstrously unfair, as does the annoyed judges statement about tenant meritless delaying tactics right before her ruling that I'd simply "had enough time" absent review of the circumstances. But whatever. Regardless of your jaded view, my roommate today filed for a writ of mandate after they would not file his ex parte motion because of his being procedurally intended to be locked out. I'm already moving because I don't have much faith in the system when it works one way for landlords and another way for tenants. But I'll be damned if this is over. Certainly the judicial council needs to be aware of the problem of their rules. I've heard it said before by other attorneys that pat statement of principle being a bad reason to fight. I think it's just generally not one that makes money. If that's all that matters to members of the Bar, no wonder ethics and equal protection have fallen so far. Principle is the only thing standing between the rights of the people and fascism. God help this country if you can't at least see the importance of fighting for it.
Expert:  CalAttorney2 replied 2 years ago.
Dear Customer,I am going to "opt out" and allow another expert to follow up with you.Please do not post any further at this time as it will delay the next expert's ability to follow up.If you need any assistance in the meantime, please contact our customer service at: you for using our forum, and I do wish you the best of luck.Bill