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How to win a right to claim possession hearing, what is the…

Customer Question
How to win a...

How to win a right to claim possession hearing, what is the Judge Looking for and what needs to be proven. Is there a specific code or law referencing the requirements?

Lawyer's Assistant: What steps have been taken so far? Has any paperwork been prepared or filed?

Right to claim possession papers have been registered with sheriff and filed with court along with 15 days paid rent and pending hearing. I want to know how the court determines the validity of tenancy in order to grant a fair trial and proceedings... Also, if the tenant is granted a trial and wins, what happens to the initial tenant that was ruled against by default?

Lawyer's Assistant: Where is the property located?

Danville, CA

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

The lease began in June 2017. August 2017 despite having fully paid rent every month, the LL suddenly shut off power, water, cancelled cleaning service, gardeners, cable, home security system, and refused to fix the plumbing (neither of the two toilets worked, kitchen sink clogged), hot water heater (expired 2 years ago, no running hot water), garage door (risk of crashing down when up), as well as the rat, spider, wasp and flea infestation problem. We had to delay the move in bc she left in such a hurry left the home ransacked with many of her belongings, trash, food, filth left behind for me to clean up, pack, store, etc. all the while dealing with plumbing, rodents, insects, etc. Finally in Sept. we moved into a hotel as she ordered utility companies to not service her home address (the rental property) claiming there are "unauthorized tenants living in her home and does not authorize any utility services at her home at this time." despite executing a legally binding lease agreement in June of 2017. Furthermore, LL had posted publicly on nextdoor.com, a local neighborhood social media platform, a number of false allegations, slander, defamation of character, libel and posted our address, names, and pics of our home setting cause for additional harassment, vandalism to our home and property, lewd and threatening messages left on our cars with controlled substances enclosed, several instances of stalking, and unlawful entries into the home and onto the property, backyard, garage, our bedroom on one occasion. Evidence then surfaced that the LL was contracting with a local neighbor and arranged for a fixed payment amount from LL to neighbor a sum of money to "break into their home, change the locks and ensure they never return home again." We took the evidence to the Court and received a Civil Harassment Restraining Order. After staying in a hotel for a few months, and still working on the plumbing and other problems in effort to reach livable conditions for our family, including two todlers, we received notice that LL was evicting us for non payment of rent for the months we had to stay in hotel due to all the problems, no toilets, running hot water, no water at all, no electricity at all and being harrassed, stalked, habitual unlawful entries into the home, etc. and after filing demurer, motion to quash and motion to strike, the plaintiff somehow obtained a default judgement the day of the hearing on motion to strike... no time to answer after motion to strike?? I had the answer to file along with the motion to strike and the clerk said they would have a hearing on motion to strike then allow 5 days to file answer. So I held on to my answer. I did not attend the motion to strike and it was denied and default was entered that same day. What can I do!!!???? I have a family, all my belongings in that home, a lot of money tied up into repairs and was planning on being there for three years for kids schooling,etc. Now I may be out on the street in a few days after all this we've been put through?? Please help!!!

Submitted: 2 months ago.Category: Real Estate Law
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Customer reply replied 2 months ago
Attached is a court record history of the matter. The matter ended abruptly on March 13th 2018 on the day of the hearing for my motion to Strike. I was unable to attend that hearing however, the clerk informed me I would have 5 days to file my answer from the day the motion to strike was denied. I was not allowed that 5 days as the default judgement was entered on the same day, March 13th 2018. I then filed set aside and vacate default judgement a few days after and that was denied. What can I do from here? I am going to be evicted on March 28th however, there is a rightful tenant living in the home that has utility services in her name from the beginning of the lease and so she will be filing right to claim possession and we need to be sure that she is accepted as a legal tennant so would need to know what the court will be looking for at that hearing as I presume if she is accepted by the COurt as a legal tenant then she would be able to then file an answer, correct? Or Demurrer? Or motion to Quash services, correct? A few more questions.... if she is accepted as a legal tenant, what happens to the default judgement against the initial tenant if she "wins" the case or has it thrown out for whatever reason? Also, can the initial tenants motion to Quash services or Demurrer be appealed? Can the default judgement be appealed? Or just the motion to set aside and vacate default order be appealed?
Answered in 6 hours by:
3/26/2018
Real Estate Lawyer: Law Educator, Esq., Lawyer replied 2 months ago
Law Educator, Esq.
Category: Real Estate Law
Satisfied Customers: 125,303
Experience: Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
Verified

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

Your correct recourse is to pay the appeal bond, file a notice of appeal in the lower court and take the case on appeal to the next higher court. Default judgment is disfavored at law and the courts prefer judgments on the merits whenever possible. Thus, you need to present good legal cause to the court as to why the default should be removed on your appeal and get a new trial ordered where you can present your evidence.

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

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Customer reply replied 2 months ago
I filed a motion to set aside and vacate default judgement with an attached Answer stating the many merits on the case and motion was denied. I don't know if this was because I did not have time to do an exhibit list and attach all the documentation backing up my claim or if it was denied for some other reason. So do I request reconsideration of the set aside motion or do I file a request for new trial at the trial court level or do I file a notice of appeal, pay the bond and have the appellate court review? By the way, the matter is being held in Contra Costa County in Martinez, CA. Please advise...
Customer reply replied 2 months ago
Attached is the case summary. The most recent listing of the Demurrer being continued to 3/23 is clerical error. The OSC Failure to Disposition Unlawful Detainer Case within 45 Days is something I knew nothing about, was never served any of the docs regarding this issue and was not part of any hearing on this issue. Is there something there I can use for grounds of dismissal? Also, in addressing my initial question... the Sheriff will be at our home to evict on Wednesday. We will file a right to claim possession at that time for another valid tenant in the home not listed on the Writ and of whom has the utilities in her name since before the filing of the UD matter. We desperately need the Court to recognize her as a valid tenant to allow for her to proceed with filing an answer and requesting jury trial. Is there any advice you can give or resources that may increase our chance of the Court acknowledging her as a valid tenent and allowing her to proceed with filing her motions and participating in the hearings going forward? Is there a bond required for her to stay in the home during legal proceedings?
Real Estate Lawyer: Law Educator, Esq., Lawyer replied 2 months ago

Thank you for your reply.

In order to set aside a default, there has to be good cause. So, the court may have found no good cause for setting your default aside. If they refused to set aside, your only recourse is to appeal. You can of course file for reconsideration, but that rarely works. If you disagree with the decision, your option is filing the appeal of the denial to set aside.

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

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Customer reply replied 2 months ago
In terms of my initial question... the sheriff will be here tomorrow morning and we will be filing a very valid right to claim possession for another renter of the household that was not listed on the writ. A hearing will be set to determine the validity of the tenant/right to claim possession. My question to you is what will the Court be looking for at this hearing in determining the renters validity to right to claim possession? What can we do in preparation for this hearing to increase our chances of success? If the court approves the other renter as a valid tenant and grants right to claim possession, that renter has the right to move forward with a fresh process i.e. may then file Demurrer, motion to Quash, Strike, Summary Judgement, Request for Trial, etc. correct? If this is correct, does that renter/tenant need to post bond during the process? What happens to the initial renter that had the default judgement if the second renter wins the right to claim possession and wins in trial?
Real Estate Lawyer: Law Educator, Esq., Lawyer replied 2 months ago

Thank you for your reply.

In a UD case the only thing the judge wants to see proof of is proof that you paid the rent up to date and have no outstanding rent due and the judge would look at the negligent repairs or failure to provide a habitable premises if you bring in pictures and argue that this claim of the landlord is retaliatory because you sought to enforce the lease for making repairs.

The the court finds the other renter as valid and the rightful tenant, then you need to file an appeal with a motion to stay judgment pending appeal. During hat time you have to pay a bond and pay any rent due until the appeal is heard.

The initial renter with the default judgment is evicted and loses the case.

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Customer reply replied 2 months ago
Ok so the landlord has a thing for me and when she found out I moved my gf into the home she stopped talking to me and shut off the electricity, water, cable, cancelled cleaning service, gardeners home security system all to be inclusive in rent. She refused to respond to both toilets not working and kitchen sink not draining, all pre existing conditions of the home. We stayed in hotels and with friends until we could pay her utility past due balance and get a court order to have utilities in our name. We did not pay rent the months there was no water/electricity. The LL then filed an UD complaint and I filed Demurrer then motion to quash then motion to strike. The court clerk told me I'd have 5 days to file answer from the date of my hearing to strike. I did not make it to that hearing and my motion to strike was denied and default was entered same day. No opportunity to answer. The sheriff posted notice of eviction on 3/16 stating 3/28 as eviction date with attached form for right to claim possession which my gf filled out and per the instructions on the form handed it to the sheriff upon his arrival to evict. He was supposed to fill in the date and provide receipt which in turn was to be filed with the court within 2 days. However, the sheriff said he does not fill out any forms nor does he provide receipts. He then evicted us. I went to the court who sent me to sheriff who said the form was not fully filled out and tgey couldn't tell me what was missing and appeared to be filled out in its entirety. I then went to law office and they said to just fill in the sheriffs name and time they came and file with court within the required two days. However the eviction has already completed and transfer of ownership complete not sure how to proceed from here...
Real Estate Lawyer: Law Educator, Esq., Lawyer replied 2 months ago

Thank you for your reply.

So your issues in court are primarily caused by your failure to appear. So you need to file to vacate the default and explain to the court why you did not make it to court as scheduled. Next time it is scheduled you need to show up in court regardless of anything else you are doing.

As I told you, you have to go back to court now and sue and since the eviction is already completed, you will need to seek money damage claiming unlawful eviction if you can get the default judgment vacated.

If you cannot get the default judgment vacated, then your claims are more difficult. You can file a new suit against the landlord for unlawful eviction, but you have to prove in court your landlord committed some type of fraud in getting the default judgment, but if she shows you failed to show up in court as required you have to explain to the judge good cause for why you did not appear leading to the default.

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

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