This article was posted on Wednesday, Nov 01, 2017

Alameda County and its juries are well known by the landlord attorneys as being tenant-friendly. Wins for landlords do not happen very often. However, there are rare occasions where the law and facts are in favor of the landlord and they win!

In the most recent nuisance case, an attorney of the Shepherd Law Group won the case before a jury of 12. The case was tried against two attorneys from the East Bay Community Law Center, (EBCLC). This case had been filed in November 2016 but it was not put before a jury until March 2017. Unlawful Detainers are summary proceedings that should have a trial date 20 days from the date of the first request. The landlord in this case was not afforded the right of the summary proceeding. However, he prevailed in the end and was awarded possession of the unit. The tenant was evicted from her unit.

Between January 20, 2017 and up until the case was put before a jury, the attorneys from the Shepherd Law Group tried relentlessly to settle the matter before taking the case to trial. The tenant’s EBCLC attorney systematically denied each offer. They made clear comments such as “You’re wasting your time” – she is not moving out.” The landlord’s attorney tried to offer money and asked the tenant’s attorney for a number. The tenant’s attorney refused to provide a reasonable figure and the landlord was left with no other choice but to take the tenant before the jury to remove her from the property because of her nuisance behavior.

The tenant was an older Latino woman who had lived at the subject property for over 13 years. She ran a children’s day care out of the one bedroom apartment in a multi-unit building in Oakland. She kept her unit in an unclean and unsanitary conditions. She had roaches. The tenant’s neighbors were new tenants who kept their unit in a clean, sanitary condition. They began to have cockroaches enter their unit from the walls they shared with the nuisance tenant. They complained to the landlord.

The landlord had owned the building for about four years at that point and was very familiar with the nuisance tenant and the condition she kept her unit in. The landlord knew right away where the roaches were coming from, so he served the nuisance tenant with written notices after having given several verbal warnings to her – the nuisance tenant had been told several times by the landlord to clean up her unit. The landlord offered several times to have pest control enter her unit to do a treatment and even offered to hire movers to help move her stuff so that the pest control treatment could be done successfully. The landlord had a pest control company that he had been doing business with for years and offered the phone number of the pest control company to the nuisance tenant on more than one occasion. The nuisance tenant did not clean her unit; she did not call the pest control company and she did not accept the offer from the landlord to hire movers to help her move her stuff in her unit.

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The nuisance tenant was also a borderline hoarder. Her unit had boxes stacked almost to the ceiling. She had an excessive amount of food stored in the unit and on top of all that she had stuff in the path of her exit if she needed to exit in case of an emergency. The nuisance tenant’s uncooperative behavior led to the landlord having no other choice but to serve her with a 3-Day Notice to Quit. The tenant requested a jury trial after the landlord made the first request to the court for a court trial.  The landlord first served a 60 day notice termination of tenancy but the tenant’s next door kept having roaches enter their unit. The landlord had a duty to address the complaints of the other tenants’ peace and quiet enjoyment complaints.

While a jury trial for nuisance has many elements that make for a successful outcome, the jury selection, verdict form and credible witnesses are key to a victory for a landlord in a nuisance case. Jury selection went for two days with voir dire, (the questioning of prospective jurors by a judge and attorneys), taking place a half day each day. The attorney from The Shepherd Law Group looked for jurors that were landlords or property owners, who had young children and people who could be unbiased given the facts of the case and the parties involved. The jury selection was critical to the landlord’s case. That landlord had to have at least nine jurors on his side going into the trial. The landlord’s attorney selected two men with children, a woman who was a landlord at one point, several homeowners and a person in the business of real estate. The jury was a mix of races and ages as well as educational backgrounds, was engaged and appeared to ready to apply the facts to the law.

While the landlord was an owner of multiple rental properties and had been in the business of buying rental property for some time, he was presented to the jury as a caring, thoughtful considerate landlord. The landlord’s attorney presented an opening statement to the jury that the only reason why the landlord was before them was because he was at his wits’ end and he needed the help of the jury. The jurors were told that the landlord needed to protect the quiet enjoyment rights of the next door tenants.

The landlord had taken photos of the condition inside the nuisance tenant’s unit before the trial started. The photos showed the jury a clear picture of how she maintained her unit prior to her attorney’s getting involved and prior to the case being filed. The tenant did a motion to not allow anyone to use the word “hoarder.” The tenant won that motion which meant no one could use the word “hoarder” in the presence of the jury. Despite that, the photos spoke for themselves; the tenant was a clearly a hoarder and had poor housekeeping habits which contributed to roaches being in her unit and traveling to the next-door unit. The Plaintiff hired a private housing inspector to do an inspection of the subject property. The housing inspector had a background and knowledge regarding roach activity. He found that the unit did possibly have roaches. There were several factors; roach flogger cans, dead roaches on top of the cabinet and dead roaches behind the stove.

The tenant was put on the stand first. The tenant denied that she had roaches. She even denied that she read the notices that were served to her. She claimed that she just took the warning notices and stored them away. She tried to put on a defense that the landlord had acted in bad faith and had yelled at her. She claimed she did not get served with the 3-Day notice but in her reply to her discovery she said she had been served. The first day of trial was full of lies from the tenant.

The next day she was still on the stand and she changed her story. She changed her testimony claiming she did not understand the questions from the day before and she was nervous. The tenant claimed that she was not offered the phone number; then she claimed she thought that she would have to pay for the pest treatment because another unit had paid. She offered no evidence as to what the full story was regarding the other tenant’s payment for the pest treatment. The landlord had paid and was more than willing to pay for her treatment had she called the pest control company.

The landlord was put on the stand. He simply testified that he was at his wits’ end. He stated that he gave the tenant verbal and written notice. He even offered her money. He made sure that he had a Spanish interpreter there with him to ensure that the tenant understood the landlord’s request. The jury even had a question for the landlord. The landlord had made several improvements at the property that benefited all the tenants. One juror wanted to know if making money and caring for the tenants can live in harmony. The landlord answered “Absolutely.” The tenant’s attorney tried very aggressively to impeach the landlord on dates that treatment had taken place at other units. The tenant’s attorney was very theatrical in her questioning. She became so assertive and aggressive that the landlord began to cry on the stand. He presented himself as a person concerned for the well-being of his tenants. He was a credible witness.

The next credible witness was the next-door neighbor who was suffering with a roach problem at the hands of the nuisance tenant’s uncooperative behavior. The key to a nuisance case is to have the complaining tenant be a witness at the trial. It is extremely important to have the complaining tenant there to tell their side of the story. The next-door neighbor told the jury how she was afraid to have her nephew spend the night. She told them how there would be roaches in the bathtub at 2:00 am. She told about how it was affecting her relationship with her partner. She sincerely explained how she could not invite people over for fear that a roach would come out. She made it clear to the jury that the roaches were affecting her peace and quiet enjoyment at the subject property.

The jury, in this case, was patient and attentive. The trial lasted nine days. It is very important to get feedback from jurors after they have issued a verdict. In this case, Plaintiff’s counsel spoke with a juror after the verdict. The juror explained how the other jurors were easy to get along with. The jury was always laughing in the back room and they seem to get along very well. One key thing that the juror person said was that the landlord showed that he acted in good faith and that he did not have unclean hands. If the jury would have found, he acted in bad faith, we would have lost the case. Good faith, honest intent and not ulterior motive is a point to be plead and proven by the landlord. During the jury deliberations, the landlord once again offered the tenant money and time to move out. The tenant declined the offer. The landlord, in this case, treated all his tenants equally and that showed through the landlord’s testimony and other witnesses.

The Verdict Form

Once the case is over, the jury is given a Verdict Form. The verdict form is what the jury places their ruling on. The Verdict Form can also be used as an outline for the opening and the closing statements. When used in the opening and closing statements, it gives the jury each point that the landlord must prove or disprove. The points are stated and facts are presented that support each point. The Verdict Form should reflect each cause of action and the elements needed to prove it. The Verdict Form also has the tenant’s affirmative defenses. The Verdict Form needs to be clear and concise as to what points must be proven. In the matter discussed here, the Verdict Form consisted of the elements to prove nuisance, the good faith, honest intent and no ulterior motive in question was on the form. The form also had the unclean hands questions with regards to the landlord’s actions. The Verdict Form also contained the questions of retaliation by the landlord, also a question of discrimination. The Verdict Form also included a question about dominate motive. The tenant tried to show that the landlord was discriminating against her because she was Latina. However, there were eight other Latinos who lived in the building. The tenant tried to claim retaliation however, the tenant had not complained about any need for repairs. The landlord showed that his dominate motive for serving the 3 Day Notice to Quit was because the tenant was a nuisance and violated the peace and quiet of other tenants.

In conclusion, the landlord must be clear on his/her dominate motive for serving any notice. The landlord must provide the court with credible witnesses. The landlord and his/her attorney must select a jury that will be attentive to the facts and not persuaded by emotion. The Verdict Form must be clear and concise so that the jury will not have any difficulty in using it to make their ruling.


The Shepherd Law Group and Attorney Michael Shepherd have over fifteen (15) years of expertise with the complex issues of “Just Cause” evictions. Mr. Shepherd has a wealth of trial experience litigating Just Cause eviction cases for properties in Oakland, Berkeley and San Francisco.

The Shepherd Law Group provides superior legal services to landlords and property management companies. Our services include drafting termination notices, notices to cease and preparing for and appearing at Unlawful Detainer court and jury trials. They practice in Alameda County, Contra Costa and San Francisco County. Jury Trial was conducted by Attorney Margaret and Article drafted my Attorney Margaret Allen. The Shepherd Law Group and may be reached at (510) 531-0129 or by email at [email protected]