Evictions Are Serious People

So you are a renter. And for some inexplicable reason bad stuff starts to happen. You lose your job. Your roommate bails on you. You get sick. You have a fight with a neighbor that gets loud. And then the notice to quit comes.

Guess what? You have just entered the eviction process. Except in California, legally, we don't call it the eviction process. It is know as an unlawful detainer. And for tenants, it is not a happy place to be.

Why? Part of it has to do with the nature of the unlawful detainer proceeding. Its quick. Its limited in what issues can be brought up. It favors the property owner, but then that is the casse with almost all landlord-tenant rules.

Another part of the problem is because most judges do not like unlawful detainer cases. They're messy. Often times at least one of the parties is representing themselves. They keep judges away from more interesting, or important, cases. Also, in counties where there is rent control, the judges often times do not have a clue about the rent control laws and how they interact with state law. There's a whole analysis that I'm not going to get into in this article about that, but needless to say, judges will bend over backwards to avoid having to make a decision, in some counties, when they can construe the facts in such a way as to make easier decisions. Don't think so? Take a look at some of the unpublished decisions out of San Francisco Superior Court's Appellate Division, especially on the issue of Civil Code section 827. Something else I'll have to write about in the future.

But back to my main point. If you are a tenant, you face an uphill battle if you find yourself in an unlawful detainer. You do not want to find yourself there.

So how do you avoid it? You take steps to protect yourself. First one, act like a grownup. Just because you are not the owner of the property, does not mean you should not just ignore problems. If the heater does not work, send you landlord an email. Don't just call him and leave a message. Grownups leave paper trails. When you were a kid, you could ask your mom for some money to do something (like say buying lemons for your lemonade stand). Your parents, if they wanted something, needed to put it in writing (whether it be a loan, a permit, a business license. Why? Because the paperwork spells out what they can and cannot do. It also spells out what theother side of the agreement can and cannot do. That way, later on when someone is claiming that they have the right to do something, there is actual evidcence of it.

Second, think about your well being. That's right, be a little selfish and think about what is good for you. The landlord is getting something for themselves, its called money. Now, if you want to ensure that you are getting something for that exhorbitant amount of money which you pay in rent each month, you have to look out for yourself. What does this mean? If there is a problem, do something about it. Now, you can't make major repairs or alterations under most leases. But for those types of things, the landlord is responsible. How will they know to act responsibly if you, the renter, do not take steps to make sure they know about it. Furthermore, if you do not keep a file on things, how will you be able to present a defense should things go south in your living situation? With the proliferation of smart phones and cloud drives, how hard is it to image your documents and save them into a file? Not very. But if you ignore it, and lose the information, don't think for an instant that the landlord will save you by giving you a copy. Remember, the landlord is working for his self-interest. You should do the same.

Third, don't be greedy. A little contradiction here? Perhaps. But when I say don't be greedy, understand that the law requires the rental unit to be habitable, not four star certified. If you are paying $1100 a month, do not expect that the landlord will come in and change the carpets every six months and install granite countertops. If you think that way, its going to lead to conflicts. And conflicts between landlords and tenants rarely end well for the tenant.

Four, don't be an ostrich. An ostrich closes its eyes, sticks its head in the sand and hopes tha the predator does not kill it. A tenant who ostriches is one who will soon be looking for a new place to live, more likely than not with an eviction on their record. If the landlord notifies you of a lease violation, do not ignore it. See if its valid. If it is, correct it. If its not, then tell them IN WRITING. Refer to the part of the lease that makes it their problem, or gives you the power to do something. If it is a Notice to Quit (whether it be 3, 30 or 60) take it seriously.

Now, if you have hit the point where the landlord is seeking to do an eviction, do not be ashamed and ASK FOR HELP. Let me say this again: do not be ashamed and ASK FOR HELP. Too many tenants ignore a notice to quit. Its the precurors to an unlawful detainer action. Unless you are an attorney who pracitces landlord-tenant law, the odds are you do not have enough information to represent yourself. If you want to try and keep your home, rented as it may be, then you should seek out a lawyer's advice on what to do. Will it cost money? In many cases the answer is yes. Is it worth it? In my experience, having a lawyer represent you significantly increases the chance that the tenant will have a better outcome.

Now for the people who say to themselves, "I can't afford an attorney", and actuallly cannot, there are other options. Many counties have a pro bono program which may be able to assist you. In San Francisco, the San Francisco Bar Association's Volunteer Legal Services Project coordinates pro bono placement for low income people in unlawful detainers and other types of cases. For people who do not meet the eligibility requirements, there are panels of attorneys who have agreed to take cases on at a reduced fee.

While you are looking for an attorney, remember, you are on a ticking clock once you have been served. You have 5 CALENDAR DAYS in which to file and serve an answer. That means, if you get it on a Tuesday, your answer must be on file with the court by the end of Monday. If you get served on a Thursday, your answer is due on Tuesday. They do count the weekend days unless the final day is a weekend or holiday. Then the due date beceoms the next court day. Failure to answer means that the landlord can get a default and then a default judgment against you. That means they can get the sheriff out to physically remove you from the property.

For those of you in rent controlled jurisdiction, do not for a minute believe that your rent board can save you from this by filing a complaint with them. They can consider it, but the unlawful detainer case filed in the superior court will take priority and precedence. State court trumps municipal administrative agency hearings almost every time.

So what should you do while you are looking a lawyer, make sure that an answer gets put in. In some counties, there are organizations which help pro per (self-represented) tenants to file answers. In San Francisco, there is the Eviction Defense Collaborative. They will help you to file the appropriate paperwork. They charge a small fee, on a sliding scale fee, that is more than worth it.

If you do not take an unlawful detainer seriously, no one will for you. Losing an unlawful detainer case, either because you defaulted, by not showing up, or at trial because you did not have any documentation about what was going on between you and the landlord, it will effect you for years. It will be reported on your credit, Furthermore, there are agencies which landlords use to see if a prospective tenant has been evicted before. It will make finding a new place that much harder.

Take it seriously. Protect yourself. Get help.

Note To Potential Criminal Clients

Don't brag that you can do a short stint in jail like its a yoga class.

Because that is what Lynne Stewart, the aider of terrorists, did when she was initially sentenced on a litany of charges that included perjury. The trial judge sentenced her to 28 months, which Ms. Stewart proclaimed she could do, "standing on her head."

Apparently, the DOJ did not take too kindly to the sentence, or her statement I guess. So they took the case up on appeal to the 2nd Circuit. The 2nd Circuit agreed, finding that the sentence was miscalculated.

When the trial judge applied all the enhancements that he did not apply the first time, the new sentence went up. In fact, it quintupled. A little over two years of head standing is not 10 years.

I wonder if she at all regrets helping the terrorist now? Unfortunately, the judge recommended she do her time at the Federal jail at Danbury, also known as Club Fed.

So remember... don't taunt the judge or the prosecutor while there is still a chance that the sentence may get changed.

Before You Hire An Attorney...

If you are ever going to be involved in litigation (i.e. a case that will be decided by court) it is the opinion of this blog that you should always hire an attorney (the exception being a small claims case). Even if you are an attorney, you should still hire an attorney. Why? First, of all, litigating a case is difficult. There are lots of rules. There are lots of statutes (municipal, state, and federal) which may apply to any given case. Then throw in the fact that we live in a common law system which means that not all the laws are in teh law books, a litigator is going to have to research the case law as well.

Now, if you are going to be part of a lawsuit, make sure that you understand what kind of lawyer you need to hire. Not all lawyers are suited to every type of case. If you are considering initiating a law suit, talk to more than one attorney. Do not feel like you have to settle for the first attorney who has an opening in their calendar. Ask your friends to see if they have had to retain a lawyer in the past. Ask questions of the attorneys. In a sense, you are interviewing them to work for you.

Why am I writing about this? Because too many times in the past few years, I have run across people who took on cases without understanding what they were getting into. Then they panicked. Then the clients had to find new counsel because the old counsel had not done enough preparation to know what they were getting their clients into.

Which brings us to why this post is getting written. Mrs. Angrybell brought me a recent edition of the verdict search report which contained the report of a case which went to trial last year.
It told the tale of a trial which happened just over a year ago, where some tenants were forced to leave because the landlord refused to make necessary repairs. The family repeatedly requested the repairs. The landlord told them that they were not going to make the repairs and if they did not like that, they could leave. Coupled with the fact that there was a severely disabled (as in a quadriplegic) living in unhabitable conditions and the family had to leave.

Now, the family took the next step: the decided to sue to press their rights. The lawyer they went to has experience with landlord-tenant situations. However, most of this attorney's experience is as a landlord's attorney.

The end result was a verdict just over $21,000.00. On its face, not a bad result for a tenancy that lasted just over a year. However, this was not $21,000 to the client. The court awarded about $6,000.00 in damages and $15,000.00 in attorneys fees. Now, in looking at the complaint in this case, its clear that the attorney knows something about landlord-tenant law. However, it is equally clear that there were causes of action which were available to the plaintiffs which could potentially resulted in doubling or tripling the damages.

Why were these not plead? Most likely because they are causes of action which is antithetical to the landlord's bar. Was this attorney trying to undermine their own client's case because of an ideological bent? Almost certainly not. It is my belief that they were not plead because this attorney was practicing on the opposite side from what they are normally on.

Litigators are by nature type A people. They like to be the best. They also tend to believe that they can handle any case which comes their way. So its up to the client to make sure that they are getting the right kind of lawyer. If you are going to a person with a general practice (i.e. does more than one type of law) ask questions about the types of cases which they have taken. Ask them what their experiences are. Do not simply accept their bare pitch to you. In the end, it can mean the difference between a a verdict and a victory.

New Rule For Defending Depositions: DO NOT LAUGH

I just saw this story a few minutes ago. Apparently a Federal District Court judge has handed down a $29,000 sanction against a party and their attorney. The sanctions arose from the deposition of Aaron Wilder in the case of GMAC Bank v. HTFC Corp. During the deposition, the deponent (Mr. Wilder) was a wee bit out of control.

By wee bit, it appears that he was unwilling to give a straight answer to most of the questions, continually engaged in "hostile, uncivil, and vulgar conduct" including insulting the opposing counsel during the 12 hours of the deposition. According the judge's count, there were 73 uses of the F-bomb during the deposition. (Which if you think about it is only a little more than 6 per hour)

Now, the attorney himself was also hit by sanctions for his part in the deposition. The court found that he did nothing to control his client, but the part that jumped out at me was where the evidence of attorney encouraging/failing to control his client was when he "snickered".

Considering how many crazy clients I have... and how some of them act,... I am going to have to really reign in my snicker reflex. G-d knows I can't afford a $29,000 sanction.

Britney: The Offer Is Still Open!

I mean, obviously, you are having some trouble with your legal representation. Apparently your first set of lawyers wanted you to follow their advice, show up for appointments, things like that. So they quit.

Feh, quitters. They never win!

And now, it sounds like your current set of attorneys, the firm of Trope and Trope, has decided that they no longer are comfortable representing you. According to one report, they are saying that there has been a breakdown in communications between yourself and your attorneys.

Listen, shoot me an email. The offer is still open.

I may not be the most experienced family law practitioner in California, but I am completely at home with my clients not listening to me, wanting to do asinine things, and generally being uncontrollable. You want to stay out all night partying and be unable to show up for a deposition, no problem! You want the impossible done, you got it! As long as the retainer is maintained, then I can be your attorney for as long as you need.

I think I am qualified...

I handle difficult clients all the time.

A lot of them don't take my advice. Most of them do things that they later swear they never did (especially when it prejudices their case and I have warned them about it constantly... but I'm not bitter).

And I've been doing it at probably a tenth the price some others have been doing it.

I figure if other people can do it and make some money off of it, then why shouldn't I?

So here's my offer to Britney: I can be your lawyer. You can ignore my advice, do inane things which will cause the court to rule against you at the custody hearings and all at a reasonable price for as long as you want. All you need to do is make sure that the retainer check does not bounce and the Angry Bell will be happy to beginning appearing on your behalf.

Lemons Into Lemonade

So this to me takes the cake. Tony Serra was released from prison today after serving ten months for income tax evasion.

And to celebrate his release, he announced at a news conference today that he is suing the government for back pay he claims he was owed as a result of his work watering the prison 's gardens. Following up on an open letter he has had published, Serra's suit alleges that the $19/month he received violates federal labor laws, the constitutional ban on slavery, and the United Nation's covenant on prison rights.

At least he put his time in prison to good use. He's back in society, promising to pay his taxes and be gainfully employed. Go to prison, stumble into a lawsuit. Talk about lemons into lemonade.

And Here I Though Joey Was Just A Character

Perhaps you have heard the old axiom that someone who represents themself has a fool for a client? Apparently, Matt LeBlanc has not heard this before. That or all the money he made on Friends and Joey is gone.

For whatever reason, Mr. LeBlanc has decided that instead of hiring an attorney to represent him in his pending divorce case, he will instead represent himself.

A quick look at his IMDB credit list does not show him ever playing an attorney. It'll be interesting to see how long he likes playing one in real life.