The Eviction Shuffle: RSVP
W[/dropcqp]hen your landlord invites you to do the Eviction Shuffle, like any polite invitee, you must respond. Unfortunately you cannot just tell the court that you are not planning to attend. Nor can you just ignore the invitation. The landlord will respond like a jilted lover and exact revenge. A failure to respond in the required amount of time will give the landlord the opportunity to ask a court to enter a default. The court almost always will default you if the landlord provides documentation that you were served and had an opportunity to respond. In San Francisco, the sheriff could be knocking at your door in a couple of weeks. Stick a fork in it, you’re done. You’re out on the street.
Unless you have a damned good reason for your failure to respond, which I will cover later, it is very, very difficult to overturn (vacate or set aside in legalese) a default. So don’t default.
You have five days to respond, in writing, to a complaint in unlawful detainer. Don’t call the landlord. Don’t call the landlord’s attorney. Respond to the complaint at the court, in writing. Do Saturdays and Sundays count? YES! You start counting your five days the day after you have been served with the summons and complaint. So if you are served on a Friday, you must respond on Wednesday. A disproportionate amount of complaints are served on Fridays because tenants only have three business days to figure things out, i.e. calling lawyers, finding self-help centers, and researching how to defend themselves. The only time you may get more days, is if the last day you could respond falls on a court holiday. That is not to be confused with Ferris Bueller’s Day Off. Check the court schedule online.
You must be personally served.
That is, a person who is not a party to the lawsuit, not the landlord, must hand you the summons and complaint. Don’t try to get cute and refuse to take a summons meant for you. If the process server can identify you and declare that he attempted to give you the papers, you have been served. In California the landlord can post the summons and complaint on your door along with mailing it to you, but only if he gets a court order. He can only get a court order if his server declares that he tried to serve you personally with due diligence. Usually, around three tries is enough. Okay, you have a UD summons and complaint in your hand, what do you do?
Get advice from people who know landlord tenant law.
Note, I didn’t say lawyers. Not all lawyers are familiar with landlord tenant law. Frankly, I love it when a landlord is represented by his brother-in-law, who may be a crackerjack estate lawyer, but who doesn’t know diddly-dick about a three-day notice. But also note that I didn’t suggest your friends who heard a story from their friends. I can’t tell you how many times I have spoken to tenants who have some preposterous assumption about UD. Inevitably they tell me “I heard that (for example) I can stay in my apartment for months before my landlord can evict me.” Not true, most of the time. “I heard that…” Three words that will get usually guarantee that you’ll be out on your ass. I heard that President Obama was born in Kenya. Get my drift?
In the Bay Area we are very lucky. There are numerous agencies and generous tenant lawyers to whom tenants can turn. The Eviction Defense Collaborative is the best San Francisco resource to help you write a response to an unlawful detainer. There are many other agencies who provide similar services in Oakland and Berkeley. Check out our links here. You can get solid advice about your notice and your complaint at the San Francisco Tenants Union, but they will send you to the EDC to write your response. The TU can also provide you a list of their approved tenant lawyers. Crow & Rose is proud to be included on that list. If you don’t live in the Bay Area, search online for “eviction defense” or “eviction help” to find an agency or lawyer to look over your documents. Also go to Caltenantlaw’s list of tenant lawyers in California to get a comprehensive list of tenant advocates. It is worth paying to have a tenant lawyer look over your complaint and notice to quit because they are trained to find subtle flaws that might enable you to get the case tossed before you have to answer.
Someone who really understands landlord tenant law will carefully scrutinize the complaint; the notice to quit, which should be attached to the complaint in California; and your lease, if it is attached. The lease must be attached if you are being accused of violating a covenant of the lease.
When I see a complaint that wrong, my fangs pop out, dripping with venom, ready to strike.
In California, a document supporting the complaint is considered to be part of the complaint. Therefore, if there are inconsistencies between the attached documents and the complaint it may be able to be challenged in a motion called a demurrer. That’s French for WTF? No, it’s really just an objection to the pleadings, the papers filed in the case.
There a quite a few requirements for a notice to quit to be “sufficient.” For example, in California a landlord can only demand rent in a 3-Day Notice to Pay or Quit. If he asks for late fees or utility bills, the notice can be defective and the case can get tossed. In San Francisco and other rent-controlled jurisdictions there are often very strict notice requirements that a notice contain certain information above and beyond state requirements. There are magic words! I will not reveal them here in case landlords read this. But really, there are magic words depending on what kind of notice you receive in San Francisco. If the landlord doesn’t include them in the notice, the whole complaint is defective and can be tossed.
Motion to Strike
We love cases with defective notices. Demurrers have longer timing requirements to be heard. When we file them we extend the UD process by up to an extra month, giving us time to negotiate and to do things like depose the landlord before we even answer. Finally, it’s great fun winning them in a hearing; getting the case tossed and in some cases being able to collect exorbitant fees from errant landlords.
There are various other pre-answer motions that are possible. Another is a motion to strike. When a complaint does not, for some reason comply with the law, all or part of it can be thrown out. I have had a couple of case where the attorneys who drafted and signed the complaints were not licensed to practice law. When I see a complaint that wrong, my fangs pop out, dripping with venom, ready to strike.
If you cannot find a mistake on the face of the complaint, you file an answer. This is where you deny the allegations in the complaint and you state your defenses, your reasons why you didn’t pay, etc. Note that there are various affirmative defenses. This is where, for example, you say that you didn’t owe rent the landlord demanded because there were breaches in the warranty of habitability. This is where you claim that the landlord violated the Rent Ordinance or that he discriminated against you in some manner. Again, you must be very thorough because there are some defenses that you can waive (lose forever) if you don’t mention them when you answer.
Like I told you, eviction defense is complicated. Many tenants think that once they’ve answered, they can wait until a settlement conference to make their case. Not true. Look what it takes just to RSVP for the UD Shuffle!