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Motion strategies for eviction cases in California

Motion strategies for eviction cases in California are the topic of this blog post.

Using the correct motion strategies for eviction cases in California is very important due to the extremely short time frames in eviction cases in California.

This blog post will discuss motion strategies for eviction cases in California for demurrers, motions to quash and motions to strike although some of the strategies discussed herein may be useful for other motions as well.

The first motion that is generally filed in response to an eviction complaint in California would be a motion to quash if the defendant contends that they were not properly served.

The rules on filing a motion to quash in an eviction case in California are completely different from the rules that apply to other civil cases in California as the motion to quash in an eviction case must be set for hearing within 3-7 calendar days from filing of the motion. See Code of Civil Procedure § 1167.4(a) and California Rule of Court 3.1327(a).

If the motion to quash is served by mail than the hearing date may be extended to between 8-12 calendar days because of the additional 5 calendar days required by the provisions of Code of Civil Procedure § 1013. See California Rule of Court 3.1327(a). However some Courts and Judges strictly enforce the 3-7 calendar day limitation so you should check with the local Court clerk to verify the exact time limit allowed in that particular Court.

I cannot stress enough that some Courts only schedule motions in eviction cases on certain days of the week so you may not be able to choose the particular day that you want.

Best days of the week to schedule motions in eviction cases in California.

However there are some Courts in California that do hear motions in eviction cases several days a week. It is my personal opinion that the absolute best day to schedule any responsive motion in a California eviction is Monday. That is because even if the motion is denied the defendant has 5 calendar days to respond and 5 calendar days from Monday is Saturday. Code of Civil Procedure § 12(a) states that if the last day to respond is on a Saturday, Sunday or other court holiday the time period to respond is extended to and includes the next day that is not a holiday. That means that the defendant will actually have 7 calendar days to respond.

Code of Civil Procedure § 12(a) states that, “If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. For purposes of this section, “holiday” means all day on Saturdays, all holidays specified in Section 135 and, to the extent provided in Section 12b, all days that by terms of Section 12b are required to be considered as holidays.”

The second best day to schedule any responsive motion in a California eviction is Tuesday because 5 calendar days from Monday is Sunday. That means the defendant will actually have 6 calendar days to respond.

In my personal opinion every defendant in an eviction case in California should schedule the hearing on their motion whenever possible on a Monday or Tuesday. However I also realize that is not always possible.

The third best day to schedule a responsive motion in an eviction case in California is Friday because that means the 5 calendar days does not end until Wednesday meaning that the defendant not only has over the weekend to work on their response but does not have to file the response until Wednesday before the clerk’s office closes.  Wednesday and Thursday are also okay but not as advantageous, at least in my personal opinion.

Another important issue that you must consider is that you need to avoid scheduling any demurrer or motion to strike more than 35 calendar days from the date of filing and service of the motion unless that is the earliest date the clerk will give you.

That is because most Judges will assume that your demurrer or motion to strike were only filed to delay the eviction and they may not only overrule your demurrer or deny your motion to strike but they may even sanction you.

I cannot stress this enough. Do NOT schedule a demurrer or motion to strike for more than 35 calendar days from the date of filing and service unless the clerk tells you that is the earliest date they can give you and believe me that rarely if ever happens.

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Attorneys or parties in California that would like more information on a California eviction document collection containing over 30 sample documents sold by the author of this blog post can use the link shown below.

https://legaldocspro.myshopify.com/products/california-eviction-document-collection

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The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

For licensed attorneys and law firms that need 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.

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

If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm

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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