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Summary judgment in California unlawful detainer (eviction) cases

Summary judgment in California unlawful detainer (eviction) cases is the topic of this blog post.

Because the filing fee for a motion for summary judgment was raised to $500.00 several years ago the number of summary judgment motions in California evictions has gone down but there are still circumstances where a summary judgment motion may be filed. These cases might be where the monthly rental rate is very high, or where the attorney for the plaintiff is especially aggressive.

Many attorneys for the plaintiff use a “canned brief” for these types of motions if they work on many eviction cases. A careful reading of the motion is essential as some landlord attorneys have low paid support staff who basically cut and paste the boilerplate verbiage into the document which is then rapidly scanned by the attorney who signs it.

However a motion for summary judgment is not a “slam dunk” for the plaintiff as Code of Civil Procedure § 437c(c) states in pertinent part that summary judgment may be granted only where all the supporting and opposition papers show there is no triable issue as to any material fact and the moving party is entitled to judgment “as a matter of law.”

This is particularly so when a tenant can show enough facts and evidence that supports their defense, such as a breach of the warranty of habitability or a retaliatory eviction as those would be considered triable issues of material fact which should be able to defeat the motion. If the tenant denies being served with a three-day notice and can show facts and evidence to support their denial that should also defeat the motion as a California Court of Appeal has held that, “Affidavits of service may not be relied on at trial to prove a three-day notice was served pursuant to section 1162; testimony of the person who made the service is required.” See Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511, 514. (internal citations and quotations omitted.)

Code of Civil Procedure § 1170.7 which governs motions for summary judgment in unlawful detainer actions states in pertinent part that, “Summary judgment shall be granted or denied on the same basis as a motion under Section 437c.”

And Code of Civil Procedure § 437c(r) states in pertinent part that subdivisions (a) and (b) which govern regarding timing of the motion, timing of opposition papers and parties’ evidentiary burdens “shall not apply” to unlawful detainer and forcible entry/detainer proceedings.

For example no separate statement of undisputed material facts is required, and the motion can be made on five (5) calendar days notice, with additional time for service by mail.

Any opposition to the motion may be made orally at the hearing or in writing pursuant to California Rule of Court 3.1351(b).

If a defendant wants their opposition considered by the Court before the hearing they must file and serve the written opposition on or before the court day before the hearing. Service must be by personal delivery, fax, Express Mail or other means consistent with Code of Civil Procedure §§ 1010, 1011, 1012 and 1013, reasonably calculated to ensure delivery no later than the close of business the court day before the hearing. However, the court, in its discretion, may consider an opposition filed later. See California Rule of Court 3.1351(c).

Attorneys or parties in California who would like to view a portion of a sample opposition to a motion for summary judgment in a California eviction can see below. 

 

Attorneys or parties in California that would like more information on a California eviction litigation document package containing over 25 sample documents including sample opposition to a motion for summary judgment in a California eviction can use the link shown below.

California eviction litigation document package

The author of this blog post, Stan Burman, is a freelance paralegal that 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.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

View legal document packages for sale at: http://legaldocspro.net

If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California and Federal legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm

Copyright 2013 Stan Burman. All rights reserved.

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.

These 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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