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Ask S. Kincaid Your Own Question
S. Kincaid
S. Kincaid, Attorney
Category: Landlord-Tenant
Satisfied Customers: 2512
Experience:  Experience working with evictions, subsidized housing issues and mobile home issues.
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If my Landlord's wrongful unlawful detainer (no notice

Customer Question

If my Landlord's wrongful unlawful detainer (no notice given) was served to me because she learned I had planned to file for a civil harassment restraining order against her (not filed yet), is that considered retaliation and what do you suggest I do in regards ***** ***** defending myself.
Submitted: 1 month ago.
Category: Landlord-Tenant
Expert:  S. Kincaid replied 1 month ago.

I need a little more information. On what basis did she file for unlawful detainer? Is she claiming you are behind on rent? Is she claiming to have given you a notice? If so, what kind of notice?

Customer: replied 1 month ago.
She is claiming "tenant-at-sufferance, no notice needed." Rent has been $0 for 3 1/2 years, including utilities and landlord lives in another county.
Customer: replied 1 month ago.
She did give me a heavily faulted 3-day notice to pay or quit for $1000 for a month but never did anything about and 2 months Go by plus she is claiming "no notice needed" and did not attach the notice to the complaint. She is also claiming she never gave permission or knew that I was living here with the "original tenant," who is also her son. The landlord did give "permission" and was fully aware of me living here since 2013.
Expert:  S. Kincaid replied 1 month ago.
while it may be retaliation, the best defense is insufficient notice.
Expert:  S. Kincaid replied 1 month ago.
All tenants are entitled to notice before a UD is filed, including tenants at sufferance. I would focus on that defense as retaliation is extremely difficult to defend with.
Customer: replied 1 month ago.
Okay well problem is I already signed an "stipulated agreement" at the pre-trial settlement conference because the mediator told me that if I went to trial I could "most likely lose, get the eviction on my record, because I don't have have any tenant rights because I 'technically' never paid any rent and that Livermore doesn't have any housing laws so there is no just cause eviction protection." I told her I was pretty sure I had rights under CA law and she said "trust me, I'm a housing lawyer, I do this for a living." Is that true? It doesn't feel right for me.
Expert:  S. Kincaid replied 1 month ago.
That's not right. What did got agree to?
Expert:  S. Kincaid replied 1 month ago.
you
Customer: replied 1 month ago.
That I would move out in 60 days (Oct 16th) and if I didn't that default judgement will be ordered against me with 48 hours to remedy (move out).
Expert:  S. Kincaid replied 1 month ago.

I do not see how you can vacate the agreed judgment. Was it his lawyer who told you you had no chance? Or some other lawyer?

Customer: replied 1 month ago.
It was the mediator who told me (at the pre-trial settlement conference). She went back and forth from me to my landlord and her lawyer with a little piece of paper with fill in the blanks. I never actually saw my landlord or her lawyer when this happened.
Customer: replied 1 month ago.
The person acting as a mediator was someone in the hallway who was offering to help people who didn't have a lawyer with them.
Customer: replied 1 month ago.
She is an actual lawyer though.
Expert:  S. Kincaid replied 1 month ago.
Mediators often try to convince people they don't have a case to convince them to settle. Mediators also aren't allowed to help one side over the other.
Customer: replied 1 month ago.
then wouldn't I be able to vacate the judgement ?
Expert:  S. Kincaid replied 1 month ago.
It is extremely difficult with an agreed order, and i don't see any basis to do so in this case.
Customer: replied 1 month ago.
Also (slightly off topic) my landlord in this agreement said "rent is considered paid in full" until move out date (even though rent is/was $0), however, she did shut off the electric and gas with out letting me know and I had to have pg&e come out and turn services back on after lying to them about "smelling gas" in my kitchen. The woman on the phone said my power was turned off because the "previous tenant" (my landlord, they thought lived at the house) terminated their account back in July 11th and that "someone" called earlier that day reported "an unsafe breaker panel" and when the servjce guy came to check it out he saw that no one was paying for service and turned it off, on a Friday , around 6 pm! So long story short, I am now responsible for services backdating to July 11th. Shouldn't she be responsible to pay still since she's been paying this whole time and never told me she was going to stop paying?
Customer: replied 1 month ago.
In the agreement it says she has the give me 48 hours written notice before entering the building for repairs or services and that all furnishings shall remain in the building. She sent movers to the house to get some things with zero written notice and I did not allow them inside though as "nothing can leave the building." I have a copy of the work order. Does this violate anything ? It non stop annoying me from this lady I can never relax let alone focus on finding a new home.
Expert:  S. Kincaid replied 1 month ago.
Well, PG&E can go after you since you entered into a contract with them. But the landlord was not allowed to turn off your power and that would be a legal basis to sue them in small claims court.
Customer: replied 28 days ago.
I’m confused. If the mediator lied to me to get me to settle ( helped one side over another), why wouldn’t I be able to vacate the stipulation order?
Expert:  S. Kincaid replied 28 days ago.

Because mediators are allowed to lie. The mediator is not your attorney so the mediator has no duty of honesty to you.

Expert:  S. Kincaid replied 28 days ago.

You could try it but I would bet a large sum of money that it won't work.

Customer: replied 24 days ago.
what’s the point of having a mediator? Or the courts REQUIRING/allowing/providing dishonest legal “guidance?”I’m trying to wrap my head around this.
Expert:  S. Kincaid replied 24 days ago.

From the court's perspective, it is always better for parties to settle a case. It creates less court traffic, less court expense, and saves the judges from the risk of appeal. Their goal is not to make everyone happy or for the situation to be fair for everyone. I understand that this is ridiculous, I agree, but as long as I've practiced, it has always been this way.

Customer: replied 17 days ago.
Seems bogus to me. Too bad I’m not in charge lol hmmm how do I file a stay of execution? I still cannot find a place to live and I have to be out on Oct 16th. I’m having a hard time putting the money together since I got hit with a $1300 plus pg&e bill backdated to July 11th , which is when the Landlord shut off the power and gas with out notifying me.
Expert:  S. Kincaid replied 16 days ago.

There is a procedure for asking for a stay of execution, but it won't be granted unless you have a legal basis for the stay. The legal basis would be that you are challenging the validity of the unlawful detainer judgment and would like the stay pending that adjudication. And to prevail, you will have to show a reasonable likelihood of prevailing on your challenge to the judgment. Do you think you have a legal challenge? If so, what?

Customer: replied 15 days ago.
Well I never got a 30/60 day notice to end the term. She shut off the power and electric with out notice as an attempt to get me to move out faster. She has sent her daughter here at night to “spook” or intimidate me (in the driveway) and cops were called and handled the situation. She is also sending me annoying and harassing text messages about “get out already” or “I’ll be there with the realtor/electrician at this time on this day” with out WRITTEN notice and sends movers to the house with out proper notice etc forcing me to constantly be stressed out and anxious.
Customer: replied 15 days ago.
Also because of the pg and e being shut off they require a $918 + deposit plus monthly charges dating back to July 11th totally around $1600 ish so far which financially has made getting enough money saved up to move out in time extremely difficult.
Customer: replied 15 days ago.
but she then never shows up with the realtor or electrician , it’s like she just does it to mess with with me ?
Customer: replied 13 days ago.
What do you think ?