The topic of this article is a brief discussion of filing an answer to an unlawful detainer (eviction or UD) complaint in California. Specific affirmative defenses will not be outlined in this article issue but will be discussed in more detail in a later article.
Once a tenant has been properly served with the summons and complaint they generally have five (5) calendar days to file their answer with the Court and serve a copy on the plaintiff or their attorney.
Failure to file and serve an answer on time will result in a default being entered against the defendant or defendants. The landlord can then obtain a judgment for possession of the premises very quickly, usually within a few days at most. Therefore, it is vital for a tenant served with an unlawful detainer summons and complaint to answer or otherwise respond within the very short time allowed.
In general, the tenant's response is due within five (5) calendar days after service of the unlawful detainer summons and complaint. The five-day period includes Saturdays and Sundays but excludes other court holidays; however, if the fifth day falls on a Saturday or Sunday, the response deadline is extended to the next court day. However, if the summons and complaint was not personally served, but instead was served by substituted service, meaning a copy was given to someone else residing at the premises, and another copy was mailed to the tenant, or an order to post and mail known as "nail and mail" was issued by the Court, than the response time is extended to fifteen (15) calendar days, again if the last day to answer falls on a Saturday or Sunday, or a court holiday, the deadline is extended to the next court day.
Thus, an answer to the unlawful detainer complaint must be filed within this five-day period unless, before expiration of the five days, the tenant has filed some other authorized responsive pleading that temporarily excuses the duty to answer such as a motion to quash, demurrer, motion to strike, etc.
The filing of a motion to quash, demurrer, motion to strike or other authorized preanswer responsive pleading extends defendant's time to answer the complaint. But the preanswer pleading must itself have been filed within the five-day answer period, absent stipulated or court-granted extension of time.
Where "good cause" is shown such as time needed to obtain filing fees, etc, the court may grant defendant an extension of time to respond.
Like any preanswer response, application for an extension of time to plead must itself be made within the five-day answer period. As soon as the five days are up, plaintiff is entitled to obtain a default entry beating out defendant's subsequently filed application for extension of time. Any extension of time that was granted after the time to answer had expired may be ignored and a default entered.
An application for an extension of time may be made ex parte; a formal noticed motion is not required as the narrow five-day window period does not allow time for a noticed motion under normal procedures.
But some form of informal notice must be given to plaintiff; and defendant's written application must advise the court of the nature of the case and what extensions, if any, have previously been granted, whether by court order or the stipulation of the parties.
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.
The ex parte application must be accompanied by a declaration stating either (I) that notice was given, including the date, time, manner and name of the party informed, the relief sought, whether opposition is expected and that the applicant informed the opposing party where and when the application would be made; or (ii) that a good faith attempt to inform the opposing party was made but the applicant was unable to do so, (specifying efforts made); or (iii) why notice should not be required.
If the notice in a UD proceeding was provided later than 10:00 a.m. the court date before the ex parte appearance, the declaration must state why the notice given was reasonable. See California Rule of Court 3.1204[c].
The maximum extension is ordinarily 10 days unless plaintiff consents to a longer time or the court otherwise orders for "good cause" shown.
The parties may stipulate to an extension of time for any reason; but a court-ordered extension will lie only for "good cause" shown. Since eviction actions are supposed to be "summary" (speedy) proceedings, courts tend to be quite restrictive in granting extensions of time. A first-round extension is likely to be granted ("good cause" found) only on allegation that no prior extensions have been granted (by court or on party stipulation) and that (I) defendant needs more time to locate an attorney to represent him or her or to acquire the requisite filing fees, or (ii) a consulted attorney needs more time to evaluate the case to determine whether to accept representation of defendant.
Any further extensions of time are uniformly disfavored in UD proceedings.
Defendant's answer must be verified just as the UD complaint must be verified.
Note that while all answering defendants must sign the answer, only one answering defendant needs to verify the answer. An unverified answer is subject to a motion to strike in its entirety; but the motion must be made within 10 days after service of the answer.
The function of the answer is to put the case "at issue" as to all material allegations in the complaint. Therefore, as with any answer to a civil complaint, the unlawful detainer answer should set forth whatever denials and/or affirmative defenses are necessary to controvert the landlord's material allegations.
All material allegations of the complaint that a defendant does not intend to admit must be effectively denied. If they are not denied then they are automatically deemed to be admitted.
Defendant should respond specifically to each and every paragraph in the unlawful detainer complaint by admitting, denying, admitting portions and denying portions, or denying on the basis of lack of information or belief upon which to admit or deny.
As with general civil litigation, defendant's answer should allege applicable affirmative defenses that are not put in issue under a simple denial commonly referred to as "new matter." As a general rule, whatever the defendant tenant bears the burden of proving at trial is "new matter" and thus is in issue only if specifically pleaded in the answer.
It needs to be stressed that allowable affirmative defenses are very limited. Only "issues directly relevant to the ultimate question of possession" and which, if established, would result in the tenant's right to retain possession, may be asserted in defense to an unlawful detainer.
The defendant (tenant) bears the burden of pleading all essential elements of the affirmative defense (or defenses) raised which means that the defenses pleaded must be supported by factual allegations. However, this simply requires "meaningful notice" to the landlord of the scope and extent of the proffered defense, no detailed evidentiary facts are required.
Please note that the author of this article, 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 article is NOT intended to constitute legal advice.
These materials and information contained in this article have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this article is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.
How A Wireless Expert Witness Can Help You Legal Placement Services: The Difference Between Court Reporters and Paralegals When Should You Contact a Litigation Lawyer? Collecting an Unpaid Judgment Against a Judgment Debtor Who Uses Several Aliases
0 comments:
Post a Comment