Unfortunately, jury trials are still something that we have to be careful of and watch out for in Southern California evictions. We are seeing the continued rise of jury trials, not only in rent controlled areas but in all counties. What can you do to strengthen your case if it has to go to jury?
I have started to advise my clients on how to make sure that their management techniques will survive the probing of BASTA, EDN and other public interest law firms.
First and foremost, it all starts with the notice that is served. If it is a three day notice, there are certain things you can do prior to the notice to make sure that you will prevail.
- Make sure there is NO outstanding health department report. Under 1942.4, if there is an outstanding health department report that has been open for 35 days, you are not allowed to serve a three day notice for rent. If you do, you could be subject to unlimited attorney fees, regardless of what is in your rental agreement.
- Make sure there are no ongoing habitability issues with the tenant prior to serving the notice. A good idea is to post a 24 hour notice and do an inspection for repairs. Ask the tenant if they have any problems. Try to get them to sign off on a piece of paper that there is nothing wrong with the unit.
- Have two people serve the notice and take a picture with a date on it of the day of service if posting on the door. Two witnesses are better than one when the tenant is lying and saying they never got the notice. You will be much more believable to a jury when two of you say that you served it on a certain date.
- Make sure that you do not include any late fees and check all your rental increases. In Los Angeles, you cannot round up your rent increase – that makes the entire rent increase invalid. Further, certain courts (especially the Lancaster court) find that all late fees are illegal and that they should be considered advanced rent. As such, if you have late fees in your ledger it is best to deduct them from the amount owed in Lancaster court.
- Make sure that you have an attorney fee clause that is limited to $500.00.
If you are serving a notice for an unauthorized occupant or a nuisance, make sure that you have accurate dates, times and witnesses. It is very important to have the proper evidence when you come to court. If you are serving a perform covenant or quit notice for a pet, unauthorized occupant or for a pack rat, make sure that after the three days the problem still exists. You need hard evidence that the tenant did not fix the problem within three days. You need pictures, camera evidence, witnesses or police reports to validate the fact that the tenant did nothing after the three days in order to proceed with the eviction.
If BASTA substitutes into the case, make sure that you do extensive discovery. I even advise now to do depositions. This is the only way that you will be able to have the witnesses’ testimony beforehand and know exactly what they are going to say. A lot of times BASTA or EDN will supplement their discovery responses and or documents that they want to submit at court right before trial. If you have a deposition, you would shortcut this because usually they will bring all their documents to the deposition or they will at least discuss all evidence during the deposition so you know EXACTLY what they are going to say when they go to court. However, as good as this is; it doesn’t prevent them from putting on a totally different persona in front of the jury.
Recently, I took a deposition and the deponent was very aggressive and adamant about the habitability of the property. When it came to the jury trial he “became” a soft-spoken individual who even “cried” in front of the jury because he was so upset about everything that was wrong in his apartment!
Many of my clients really want their tenant out and don’t want to have to pay the attorney fees that it will cost to defendant BASTA or EDN’s jury trial antics. Rest assured you can settle with BASTA and pay them the money that they want to settle the case. Remember, BASTA and EDN get almost a third of a settlement. I understand this position if you only have one property and this is one of the few times you have ever done an eviction. However, if you have a lot of property or manage a large amount of property, I would never give in to their demands. BASTA and EDN will remember your name and address of the property and will more than likely represent another one of your tenants in your next eviction.
My suggestion is always to fight especially if you don’t want to pay their outrageous fees to settle. You need to be persistent and patient. Don’t give up as more than likely the tenant will when they keep getting dragged back to court because the matter hasn’t been sent out to jury. Don’t settle the first day of jury as that is usually when they want the most money. Many times the tenant will lower their settlement demand as the case goes on. Of course, in reality they haven’t paid rent the entire eviction so you are also losing more rent as the case goes on. In many cases, BASTA or EDN will not give you a reasonable settlement offer until the “jury is at the door”. A normally reasonable settlement with BASTA or EDN is 60 days and a waiver and sealing the record. I realize that you want your judgment but try and remember that the goal is the get the tenant out. If you win the jury, you will only get a judgment, and then you will have to collect on that judgment. Think of it as a business and make the best business decision for you and the property.
Attorney Helen Grayce Long is an attorney at Fast Eviction Service. She attended UC Berkeley and graduated with a bachelor of arts. She then attended the University of San Francisco School of Law. Grayce has been an attorney for 25 years and specializes in Real Estate Law. She’s done landlord/tenant work throughout the state of California with an emphasis on Rent Control law. For more information, call (800) 686-8686, email [email protected] or visit www.fastevictionservice.com.