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Ex-parte application for a stay of execution of an unlawful detainer (eviction) judgment in California

Ex-parte application for a stay of execution of an unlawful detainer (eviction) judgment in California.

Requesting a stay of execution of the judgment in an unlawful detainer (eviction or UD) proceeding in California by ex-parte application is the topic of this blog post.

Many times a tenant has difficulty in finding another place to live and will thus suffer great hardship if they have to vacate within a short period of time. A stay of execution can allow a tenant more time to get their affairs in order provided that they can meet the requirements.

If the tenant can make a good showing that they would suffer great hardship if the judgment were to be executed, and that the landlord will not suffer any further damage if a stay of execution is granted, then the Court will most likely grant at least a short stay.

Code of Civil Procedure § 918 states that, “(a) Subject to subdivision (b), the trial court may stay the enforcement of any judgment or order. (b) If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed. (c) This section applies whether or not an appeal will be taken from the judgment or order and whether or not a notice of appeal has been filed.”

This means that the Court has the power to stay the enforcement of the judgment for a maximum of 40 days from the date that the judgment was entered, and/or the date that notice of entry of the judgment was given by the clerk, or another party to the action. Note that some courts and judges have a policy of only granting a one week stay.

Note that in order to obtain the stay of execution the tenant must show to the court that they are ready and able to pay rent as it falls due for the period during which execution is stayed. Otherwise the court will not grant their application. Note that appellate courts have ruled that the trial court cannot require the tenant to pay any back rent, only the rent that falls due for the period during which execution is stayed. It is strongly suggested that a Cashiers Check or other certified funds be purchased in an amount sufficient to pay the rent for the entire period of the stay requested, made payable to the clerk of the court and submitted at the time of the ex-parte application for a stay of execution.

In Medford v. Superior Court (1983) 140 Cal.App. 3d 236, 240, the Court of Appeals stated that, “The possibility of loss of back rent or accrued damages is not a consequence of granting such relief to the tenant. The landlord gains sufficient protection from the deposit of the contract rent as it becomes due.” So any stay of execution may be conditioned on the payment of rent accruing during the period of the stay, but not on payment of the back rent.

Code of Civil Procedure § 1176(a) states in pertinent part that, “Stay of judgment shall be granted when the court finds that the moving party will suffer extreme hardship in the absence of a stay and that the nonmoving party will not be irreparably injured by its issuance.”

The request for a stay of execution may be made ex-parte, a formal noticed motion is not required. But some form of informal notice must be given to plaintiff.

Normally, a party seeking an ex parte order in a civil case must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance (absent a showing of exceptional circumstances justifying shorter notice). In unlawful detainer proceedings, however, an ex parte applicant may give shorter notice “provided that the notice given is reasonable.” See California Rule of Court 3.1203.

Sample ex parte application for a stay of execution of an eviction judgment in California for sale.

Attorneys or parties in the State of California who wish to view or purchase a sample ex-parte application for a stay of execution for an unlawful detainer judgment can see below.

 

 

California eviction litigation document package for sale.

Attorneys or parties in California that would like more information on a California eviction litigation document package containing over 30 sample documents including a a sample ex-parte application for a stay of execution for an eviction judgment can use the link shown below.

California eviction litigation document package

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.  If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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10 Responses

  1. Thank you, this has slowed the eviction process long enough for me to get approved for my loan and into a new house.

    Like

  2. I was recently granted a temporary stay on a sheriffs order to vacate, which only lasted 7 days. The appellate court denied my writ and lifted that stay. Does the original order to vacate still stand, or will I get another 5 days to have to move out?

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    • In some cases the original order to vacate would stand but that really depends on the standard procedure used by the sheriffs in your county. You may want to see if you can determine what standard procedure is used by the sheriffs in your county.

      Like

  3. Thank you for taking the time to answer.

    Like

  4. Very good

    Like

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