Code of Civil Procedure §1161 was designed by the California Legislature to provide an inexpensive and expeditious procedure for a landlord to regain rental property unlawfully in the tenant’s possession. The salutary purpose of this law has been increasingly frustrated by delay tactics employed by tenants who want to contest the proceeding and stay in the rental property as long as possible without paying rent. This article discusses some of the more common delay tactics utilized by tenants, and offers suggestions on how best to handle the situation when it arises.

Answer to Complaint

This is the most common and easiest delay tactic used by tenants to delay an eviction. Many answers do not have merit but instead contain a laundry list of affirmative defenses lacking in any factual support. The simple filing of an answer, however, adds almost three weeks to the eviction process. Once an answer has been filed, either party then files a request to set trial and the Court is required to set the trial within 20 days of receiving the request for trial.

There is very little a landlord can do to avoid this delay. The only way to minimize the delay is to ensure your request for trial is filed as soon as you receive an answer, in order to obtain the earliest trial date possible.

Motion to Quash Service Of The Summons & Complaint

Some recalcitrant tenants use the tactic of filing a Motion to Quash, in which the tenant argues that the case should be dismissed because he or she was not properly served with the summons and complaint. Most judges will deny the tenant’s motion and order the tenant to file an Answer within five days. However, if the judge believes that the tenant was not properly served, the process server or attorney can simply re-serve the summons and complaint on the tenant at the hearing if the tenant shows up.

This type of motion can delay the case by two weeks or more, depending on when it is set for hearing by the tenant or the court. The best way to deal with this is to use professional process server and make sure all formalities are followed when serving the defendant with the summons and complaint. Doing so creates a rebuttable presumption that the pleadings were properly served, requiring the tenant to come forward with affirmative evidence that the service was somehow defective. In any event, having to respond to the motion and attend the hearing can add two to three weeks to the eviction process.

Demurrer To Complaint

A Demurrer is another pre-trial motion that can be used effectively by tenants to delay an eviction. A demurrer challenges the legal sufficiency of the Landlord’s complaint for unlawful detainer, claiming that the Landlord has no case because the complaint does not properly state the elements of the cause of action being asserted, or because there is a complete defense to the cause of action.

If the demurrer does raise valid issues such as serious defects in the unlawful detainer complaint, the Landlord can amend the complaint to correct the alleged defect. Usually, the demurrer has no merit, but the Landlord’s attorney must file a written opposition and appear at Court for oral argument. The effect of the demurrer is to delay the case another 2-3 weeks.

When faced with a Demurrer the landlord can use an Ex-Parte Application to Advance the Hearing Date on the Demurrer, and file the Opposition to the Demurrer at the same time. This will force the tenant into court on the earliest date possible to respond to the Ex-Parte Application and to the Opposition to the Demurrer. If the tenant fails to appear most judges will grant the Ex-Parte Application, overrule and/or deny the demurrer, and may set the matter for trial within 10 to 20 days.

Bankruptcy

From the landlord’s perspective, filing for bankruptcy is probably the most problematic tactic the tenant can utilize to delay an eviction, as it substantially increases eviction costs and can delay the eviction by months. Here’s how the ordeal typically unfolds. The Sheriff or Marshal arrives on the day scheduled for the lockout pursuant to a Writ of Possession, and is handed a bankruptcy petition the tenant recently filed.

At that point, the Sheriff/Marshal must immediately stop the eviction. This is because filing any type of bankruptcy petition creates an “Automatic Stay” of all state court actions against a debtor. Basically, this means any collection activities including the actual eviction is stopped once the bankruptcy petition is filed. Because bankruptcy law is federal law, it pre-empts California State law and the Landlord is powerless to proceed

The best way to address this problem is to file a formal request with the federal bankruptcy court to continue with the eviction despite the bankruptcy. Unfortunately, filing such a motion and having to participate in bankruptcy court proceedings is an expensive and time-consuming endeavor.

Continuance of the Hearing Date

Tenants can usually secure a one to two week delay in the eviction by simply showing up on the hearing date and asking the court for a continuance, on the grounds that they need more time to secure alternative living arrangements. Alternatively, the tenant may claim they need more time to hire an attorney, or have a medical issue. It’s up to the individual judge whether to get tough or to reschedule the case a few days or weeks down the road.

The best response to this tactic is to show up for the hearing prepared to go forward, and explain the inequity and prejudice that will be caused by any further delay. You also should request that the tenant supply the court with proof of the reason for the continuance.

Appeal Of Judgment And Request For A Stay Of Execution

Tenants can also delay the eviction by appealing the judgment of the trial court. Since the filing of an appeal does not automatically stop the eviction, this tactic works only where the tenant applies to the trial court for a stay of the action pending the appeal. The granting of a stay pending an appeal is a longshot since appeals can take years to run their course. A tenant would have to show extreme hardship to be entitled to a stay while the appeal is pending.

If you are faced with an appeal and stay request, your best bet is to file opposition to the stay pointing out that you would be severely prejudiced by the grant any such request.

Please contact Lynx Legal Service with any questions on the above issues or if you are ready to start a case. We can be reached at 888-441-2355 or by email at [email protected]. Our experienced representatives are standing by to answer any inquiries you may have.