Contested Trial (Tenant Files an Answer in Court)

If your tenant fights the eviction, that is, he or she “contests” it, typically the tenant will just file an Answer in court and your attorney will set the matter for the soonest available court trial date. Tenants must have a proper defense alleged in their answer (unfortunately the majority of tenants liberally expand upon any minimal defense and the courts allow such weak defenses without posting any rent arrearage in court). Normally, your attorney will mail a copy of the tenant’s Answer to the client for his or her review and any questions the attorney or client has will be discussed thoroughly before the court trial for a successful result. Some tenants contest the eviction action more vigorously and will file different motions, requests for discovery, and even demand a jury trial.

Your attorney cannot prevent your tenant from filing an answer in court or taking other measures to contest the eviction matter.  Although we do try hard to settle a case based on landlord instructions and needs, most tenets are not in a position to pay a large sum of money, including legal expense and remain at premises.  To review and understand the reasons tenant fight eviction, please click here.

By Californian law, your eviction case must be set for court trial hearing within 20 days of the filing of the request for trial setting document completed by your attorney. To see where the court is located and for directions to the court, please click here.

Once your attorney notifies you of the upcoming court trial date and time, he will request that you prepare yourself, including bringing any original lease or rental agreement, eviction notice, i.e., the three days notice to pay rent or quit served upon the tenant, any notice proof of service, any detailed maintenance records of tenant requested work and any landlord initiated maintenance completed or not completed at the premises, any correspondence you may have had between you and the tenant, any rent ledger showing rent payments received, etc. Your attorney will have thoroughly reviewed your case file; documents contained therein and ready to present a winnable case before the trial judge.  If your attorney has any questions or concerns he will contact you before the trial date to discuss your court trial appearance, case matter with you, including your proposed testimony and any special issues.

The Law Offices of Robert Anderson in conjunction with the services of Landlord Services will mail to clients a “Clients Contested Trial Kit,” which will include a description of the court trial process, including things you should know about the trial court hearing process, meeting with the attorney at court and before the scheduled court time, the advantages of settling your case (without trying it before a judge), most, if not all of the proposed sample trial questions you will be asked at the trial, your silent participation in negotiations with the tenant and any settlement, and if the attorney is unable to settle the case with the tenant; discussion about after court trial hearing results, including court trial judgment status, further landlord rights, issuance of the any writ of execution for possession of real property and sheriff process for a return of your rental property. Here’s a brief overview of the attorney-client process before and

• Landlord Attorney Will Represent Client
• Negotiate Any Landlord Approved Tenant Settlement
• Appear on Behalf of Landlord in Court, Brief Client in Proposed Questions That Will Be Asked in Court by Attorney and Question Landlord-client Before the Trial Judge (Court)
• Question Tenant and Any Tenant Witnesses
• Summarize Case Facts and Request Court’s Judgment in Favor of Landlord for Possession of  Real Property And a Money Judgment for any Rent and Any Allowable Legal Expense

Your attorney cannot prevent your tenant from filing an answer in court or taking other measures to contest the eviction matter.  Although we do try hard to settle a case based on landlord instructions and needs, most tenants are not in a position to pay a large sum of money, including legal expense and remain at premises.  To review and understand the reasons tenant fight eviction, please click here.
 

Either the landlord, property or resident manager must testify at the trial, to that end and because we want to help our clients make their trial experience a routine one, we provide a set of 10 to 15 trial proposed questions (and suggested answers based on data retrieved from the case file). Taking care of our client, the landlord, is paramount to us. If you have any questions or concerns, please voice those to our attorney, Robert Anderson.
 

Once you have arrived at court (for court location and directions, click here) at the appointed date and time, the court will have posted a written docket calendar on the wall outside the courtroom. It is OK for you to take a look at and review that docket to make sure that your case matter is listed appropriately.  Your attorney will have already done this, and in the case that you do not find the docket hanging out on the front wall of the respective courtroom, you can go into the clerk’s office and they too should have a duplicate copy of the courts calendar docket describing each of the cases that will be heard before the judge in that courtroom. 
 

Usually there will be several people outside the courtroom milling about and talking with their respective attorneys, and it is important for you to let your attorney know, if the tenant's have arrived.  After introducing himself, if you haven't met your attorney before, he will introduce himself, ask if you recognize or have seen the tenants arrive at court, go over the case particulars, including your openness to settle the matter with the tenant before actually presenting the full case before the court, including testimony of the landlord and tenant.  He will have first discussed with you, in the case that the tenants are actually there, because as you see in approximately 10-20% of the cases, the tenants, although they have filed an answer, been notified by the court of the time and place of trial, and may want to have their day in court, they will not be present.  In that case, and because the tenant is not present, the judge may place your matter to the foot of the calendar and wait some additional time for the possibility of the tenants late arrival.  If the tenant still is not arrived at the appointed trial and time.  The court will call your matter, and you will win by default, however, you will still have to provide necessary testimony to obtain a judgment for any back rent, legal expense and possession of rental property.

Upon meeting with your attorney, he will have your case file folder and be anxious to discuss any particular significant points with you, including going over your testimony, and as important, he will want to discuss possible settlement opportunities with your tenants.  At this point, many client landlords will tend to panic and think that their attorney is going to talk to the tenants and “give away the store”, including waiving back rents, letting them stay at premises and otherwise appear to be accommodating the tenants needs not theirs.  Nothing could be farther from the truth; your attorney is there to represent your best interests and is anxious to get the best deal possible for you, not the tenant.  Although a win-win situation is best for everybody, your attorney has one goal in mind; to give you all that you deserve, including a judgment for back legal expense, including any attorneys fees, and possession of the rental property as quickly as possible.  Keep in mind at this point that even when we do obtain a judgment, the Sheriff or Marshall of the county in which the property is situated still is required by law to properly serve the tenant with a final five day notice to vacate.
   

In over 70% of the cases, your attorney, Mr. Anderson, will be able to settle this matter with the tenant and avoid having you testify in court, while at the same time obtain a court stipulated judgment for any rent, legal expense and possession of the rental property. 
 

Once a settlement has been reached, you, your attorney, and the tenant will go into court; your attorney will announce to the judge, the court clerk or bailiff that your matter has been settled.  At that point, the judge will either hear the settlement or ask you to wait until other matters are tried before the judge.  When it is your turn to appear before the judge, your attorney will inform the court that a settlement has been reached and that they wish to enter it into the record.  The judge will ask the tenants for their affirmation of the settlement and once that is done he will instruct your attorney to read the settlement into the court record.  After which, the judge will ask both parties, landlord and tenant or plaintiff and defendant, if this “Is what everyone agreed to?” and after affirmation of both parties, the judge will summarize settlement and instruct the clerk to enter judgment in favor of the plaintiff landlord.

Again, any settlement on the part of your attorney with the tenant will be based on authorization and instruction received from you, the client landlord.  Typically, settlement negotiations focus first around possession, any back rent, legal expense including any attorney’s fees and other issues that require a temporary or permanent solution.  More often than not, most cases will settle when the tenant agrees to having a judgment entered against them for any back rents, legal expense and 5 to 15 days additional time in which to vacate the property.  The landlord must understand that when his attorney negotiates a settlement and obtains a judgment for any rent, legal expense and possession within 15 days of the date of trial, the landlord has won everything that he is entitled to.  Many landlords do not want to give their tenants, anything at this point in time.  The problem is they fail to understand that in order to enforce the judgment that they have just obtained the Sheriff must go out and serve the tenants with a minimum five day notice to vacate.  This sheriff process takes between 2 and 10 days in which to accomplish, together with the minimum five day notice that as required by California law. So, this required process or period of time, amounts to approximately 15 days.  So when the attorney agrees that the tenant may have, up to 15 days, of time in which to vacate, the landlord loses nothing.  The writ of possession issues immediately and the Sheriff is allowed to post and serve the final five day notice to vacate, but the total elapsed time will approximately be 10 to 15 days in any case. 

If the case does not settle, then the matter must be tried before the court, which includes both landlord and tenant and any other witness testimony, including submission of evidentiary items and prosecution by your attorney of the case matter.  All parties file into court and take a seat.  The landlord's attorney either has discreetly notified the judge’s court clerk or bailiff of the non-settlement or then takes a seat next to or near his client.  The court then begins to call case matters.  Respective parties acknowledge their presence in readiness to appear before the judge.  When your case is called, you and your attorney will walk up and into the court, and take a position at the plaintiffs table. Your attorney will go ahead and identify himself as the attorney for plaintiff (the tenant will do the same); while at the same time court, clerk or stenographer is recording or acknowledging the statements. 

Even at this point, most judges participate in helping to settle your case. When settlement is not possible, the judge will ask if both parties are ready to present their case before the court and then will instruct the plaintiff landlord attorney to start this case.  The landlord attorney may or may not make an opening statement and will call the client, i.e., the landlord, property manager, or resident manager to come forward be sworn in and take a seat at the witness box.  The attorney will ask for the witness to identify themselves and spell their name, accordingly.  The attorney will then proceed with asking basic yet simple questions about ownership of the subject premises, entry of the landlord tenant relationship, including any original or copy of any written rental or lease agreement, the monthly rent, etc., preparation and service of the eviction notice, and in the case of nonpayment of rent; questions regarding rent amounts due, for what rental periods, total amount of rent due, and confirmation of how that eviction notice was delivered (served) upon the tenant. The attorney will also ask another question regarding whether or not, any payment of rent was made during the three day notice.  Or whether or not, the tenant actually vacated the premises during that same period.  Finally, the attorney will summarize the amounts due and request immediate “restitution of the premises (possession of the real property)” from the court. 

The judge may ask any question of the landlord and then will turn to the defendants and ask if he or she wants to pose any questions to the you the landlord witness.  Most of the time, the tenant will reply with “no” and then the judge will excuse the landlord witness, at which time landlord will retake his seat at the plaintiffs table next to his attorney.  Now the judge will ask the tenant, if he or she wishes to testify or make a statement in the case.  Most tenants will make some sort of statement, yet most of the time their utterances will not be based on any legal principles and be mostly irrelevant statements about the reasons why they could not pay the rent or should not be asked to leave the premises, etc.  The judge may or may not ask any questions of the defendant tenant and in any case, will normally render its decision immediately. 

In most cases and because the landlord's attorney has presented a prima facie case and met all minimum legal burdens of being awarded a judgment in favor of plaintiff landlord, the judge will render a judgment in favor of the landlord for any rent, damages, legal expense, including any attorney fee and possession of the real property in which the tenant occupies.

If the landlord attorney is worth his salt, he or she will already have pre-prepared proposed judgment(s) and will submit same to the judge for his signature immediately following the judge’s decision.  If your attorney is really on top of things, he will also have ready a pre-prepared writ of execution for possession of real property and after the judgment is signed by the court, entered by the clerk, the attorney will have the writ issue and a copy of the judgment handed to the client and tenant for his or her review and record.  In any case, the judge must first sign any stipulated or court rendered judgment, in order for the next eviction step proceed.  A writ of execution should also issue by the court clerk, which is normally done in the court clerk's office.  Now the writ, not withstanding any stay of execution date (greater than 10 days, for example), is ready to be delivered to the Sheriff for Marshall's Office for final processing.
 
Sheriff’s Eviction Process – See Landlord.com’s  California Sheriff’s Eviction Kit

The issued Writ of Execution, prepared Sheriff Instructions and appropriate Sheriff Fee ($125) are now ready to be delivered to the Sheriff's or Marshall's Office for final eviction processing.  The writ is a document and court order that once delivered to the Sheriff's Office gives him the power and duty to carry out the court's judgment, including return of and possession of the premises in which the tenant occupies to the landlord or his designated agent.

Once the paperwork and a case folder is prepared by the Sheriff's office, two Sheriff Deputies will be assigned to the case and, within one to five days typically, will drive out to the subject premises, and will knock on the defendant tenant's front door and regardless of whether or not the tenant or anyone else is home or answers the door, the Deputies will serve the tenants personally, And in the case of no tenant response, will post a final five day notice to vacate on the premises.  Depending upon the Sheriff's eviction policy and procedure, the Sheriff will have either already given the landlord's attorney an eviction date or upon return of the Deputies from posting the premises to their office, they will send out a postcard or letter to the landlord or his attorney indicating the date and time of the eviction appointment, including a tenants physical eviction and return of possession of the property to the landlord, if necessary. 
 
Landlord’s Preparation and Checklist for Meeting with Sheriff Deputies

• Landlord Monitors Indications Tenant Moving Out - Every Few Days
• Retrieve Rental or Apartment Condition and Inventory Report, Including Any Photos
• Have a Camera - Take At Least 20 or More Snaps, and Notepad
• Prearrange Locksmith Changing Locks After Sheriff Returns Possession
• Have Available Front Door Key or Master Key for Sheriff Entry
• Arrive at Least 15 Minutes Earlier Than Sheriff Appointment Time
• Do Not Make Contact with Tenant, Do Not Change Door Locks And Patiently Wait for Sheriff Deputies To Arrive
• Sheriff Contact with Tenants - Knocking at the Tenants Front Door
• Sheriff Returns Possession of the Property to the Landlord or his Agent
• Tenants Who Ignore The Sheriff's Eviction Notice Will be Evicted
• Landlord Signs Sheriff’s Receipt for Possession of Premises
• Per Sheriff Instructions, Landlord May Now Conduct a Brief or Thorough Inspection of the Premises
• Tenants Abandoned Personal Property - And What to Do with the According to Law
• (Landlord Must Allow Evicted Tenant the Right to Re-enter the Premises for the Sole Purpose of Retrieving any Personal Property – during Normal business Hours)
• Download Landlord.com’s California Sheriff’s Eviction Kit

Now that the landlord has a possession judgment against the tenant, (i.e., the tenant has lost at trial, even when there is a stipulated judgment the tenant ultimately loses), the landlord should every two or three days, drive-by the property to see if the tenants have vacated or at least beginning to pack their things up in boxes and showing other signs that they are moving out. The landlord does not have the right to enter the property or even converse with the tenant at this time, any communication with the tenant must be done through, the landlord's attorney’s office.  Even in cases where the tenant has been granted a stay of execution, it is important for the landlord or manager to be vigilant in regard to the tenant vacating the property.  Sometimes, even when tenants have a week or two in which to vacate, they will up and move out in the middle of the night.  So a landlord who drives by the property every couple of days or has someone else to do this for him, including any neighbor, will be notified first of the tenant moving out of the property, and then can go ahead and start the process of re-rent.  Notwithstanding the tenant's move out status, of course, unless the tenant has completely vacated or surrendered possession, the landlord now needs to ready himself for meeting with the Sheriff at the eviction appointment date and time. 

Your attorney's office should provide you with a list of at least one or more preferred locksmiths.  So that the landlord can prearrange with that locksmith to meet with the landlord and Sheriffs Deputies to either open the door lock. In the case, the tenant has changed the locks without the permission or consent of the landlord or the landlord is not sure whether or not his duplicate (or master) key will unlock the front door, the Sheriff must gain entry into the premises at the time of the eviction appointment.  The locksmith is also needed so that he or she may change the locks once the Deputies have returned possession to the landlord.

If a locksmith is not needed to assist of the Sheriffs in gaining entry into the subject premises, and the landlord wants to save a few bucks, and once the Sheriff has returned possession of the premises to the landlord, the landlord may remove the appropriate number of door locks at the premises (it is strongly recommended that the landlord change all entry and exit locks at the premises for the new tenant, in any case).  And take those locks down to a local locksmith, who will in turn re-key the door locks.  The landlord saves a locksmiths service call charge, usually $50-$150.
 
When the landlord calls the locksmith, the landlord should first identify himself as a client of the Law Offices of Robert Anderson and Landlord Services and state that his or her telephone number was referred by that office and that their services are needed to unlock the tenants front door lock at the Sheriff's eviction appointment and confirm that the locksmith will be there at the appointed time. 
 

After confirmation of the Sheriff's eviction date and time, many landlords are very anxious for the return of their rental property, and at times will jump the gun and believe that the tenants have vacated the premises, change the locks themselves, meet with neighbors and discuss the probability of the tenants having vacated, and be otherwise impatient to have to property returned to them by the Sheriff’s Office.  This is not a good practice, unless the landlord is absolutely sure that the tenants have vacated and properly surrendered possession of the property, the landlord should wait for the sheriffs Deputies to arrive complete the eviction process. 

It is suggested that the landlord arrive at least 15 minutes early to more or less check out the situation and be very patient and not take it upon himself to contact the tenant, change the locks or do anything to compromise the upcoming Sheriff eviction process.  Wait for the Sheriff Deputies to arrive, usually in an unmarked county patrol vehicle, and greet them with your identity as the landlord or manager of the rental premises. Offer them an access key to the tenants front door lock or advise them of the whereabouts of the locksmith that should've arrived between your arriving early and be Sheriff’s Deputies arrival time.  If you are aware of any tenant tendencies for violence, mental instability, weapons or other abnormal behavior, these items should have been explained to your attorney, who in turn would have described them on any Sheriff eviction instructions, however, you could also reiterate these tenant potential problems to the Sheriff Deputies at this time.  Keep in mind, that this could be a very stressful time for tenants, who have elected to remain at the premises and the Sheriff Deputies need to know and would very much appreciate any possible tenant problems that may arise in that they need to take necessary precautions. 

After meeting with you and any locksmith, the Deputies are now going to return possession of the premises to you, pursuant to the court order.  They will first walk up to the premises front door, and knock on the door and identify themselves appropriately.  If there is no answer, which is generally the case, they will take the passkey provided by the landlord or they will instruct the locksmith to "pick the lock" so that the Deputies can gain entry into the subject premises.  Once the front door is open, again the Deputies will identify themselves, and will cautiously enter the premises asking for the defendants by name while identifying themselves as Sheriff Deputies.

Once the Deputies have made a thorough walk-through and are sure that there are no people present in the premises, including any animals or pets present, or any other usual circumstance, they will return possession of the premises to the landlord and ask the landlord to sign receipt of possession of possession of the real property.  It is at this time, that you may authorize the locksmith to re-key all of the locks. The Deputies will leave and it is the landlord’s time to begin a full inspection of the premises, including taking pictures, as described above, all the premises and taking notes of the painting, repair, replacement and other things that must be done to get the unit in ready condition for the next tenant. 
 

The Deputies will also have informed the landlord that any tenant personal property remaining at the premises that has a value exceeding $300 must be properly inventoried and stored in a place of safekeeping for a period of 14 days.  Any personal property of the tenants remaining at the premises worth less than $300 may be disposed by the landlord and in accordance with current law. More information about abandoned tenant personal property can be obtained here. 
 

If the tenants are present at the time the Sheriff knocks on the door and gains entry, the Sheriff will inform the Defendant-tenants of their potential violation of the court order and ask them to remove themselves from the premises.  Those occupants that fail to comply with the orders of the Deputies, subject themselves to arrest for trespassing and court order violation.  This is a rare occurrence and does not happen with any regular frequency.

AFTER TENANT VACATES – find more information about this process, click here