The Eviction Shuffle: Should I Dance?

Ok, are you ready to dance? Before we start, one more thing: Notices have to be in writing. The landlord cannot simply tell you to get out. The landlord must include a copy of the notice in an unlawful detainer complaint. He can’t simply testify at trial that he told you to leave.

Unfortunately an eviction defense is not an impromptu dance. It is rigidly constructed and while many of the steps are optional, if you’re going to become the belle of the ball, that is win, you should learn to perform as many of the steps as possible. In a nutshell, you are going to need to know these steps: learn the rules; learn the law; strategy; pre-answer motions; the answer; jury demand; defenses; interrogatories; inspection demands; requests for admissions; depositions; relevant evidence; negotiation; settlement conferences; stipulations; settlement agreements; jury instructions; jury selection; trial; judgment and stay of execution. Daunting? Heck, these are only the very basics. In law treatises and practice guides, there are thousands and thousands of pages written on each of these subjects. There are thousands of variations and combinations of these steps. And there are a few thousand more steps I didn’t mention.

Can I win?

Before you decide on your strategy to defend an eviction, you should ask yourself, “Can I win this?” If you believe you can’t win because you haven’t paid your rent in six months and live in a below market rent palace where the landlord responds to your every whim, you might want to think about an exit strategy. On the other hand, if you paid one day late and there have been notices of violation for no heat on your unit for decades, you might want to consider going all in.

The two scenarios above are relatively easy to evaluate. When the facts are relatively clear, cases often settle because neither party wants to spend the resources, time or energy to litigate. The vast majority of cases that are litigated are won and lost on disputed facts. You know the old saw, “There are two sides to every story?” Guess what? There are at least two sides to every story. If you add a few testifying witnesses you can usually come up with many more. You may think you have an ironclad case, but you must carefully evaluate your landlord’s position and his ability to articulate that position.

Most lawyers understand that more lies are told in court than almost anywhere else.

You owe it to yourself to call a lawyer or ten to evaluate your chances of success defending an eviction. I think one of the best services I can provide for my potential clients is to point out the weaknesses of their case before they step into an eviction war. I say war, because that is what your relationship with your landlord has become, a war. They say all is fair in love and war. I believe that all war is based on keeping or acquiring land, regardless of the propaganda. (They don’t call it the “homeland” for nothing.) Therefore, I understand that a landlord will do almost anything to protect his land in an unlawful detainer case. He will lie. He will fabricate documents. He will forge your signature. He will accuse you of doing the same. And he will swear that all of those things are true, under oath, in court. Most lawyers understand more lies are told in court than almost anywhere else. I call that the lies per square foot factor.

So I try to question my clients thoroughly. When they make a statement, I always ask, “How can you prove that?” “Do you have that in writing?” Who was with you when you said that?” “How can you prove that the landlord is lying?” I point out that many of the landlord’s past bad actions may be irrelevant. And on and on… You must prepare yourself by trying, however stinky they are, to step into the landlord’s shoes. I should add that, legally, the landlord has the burden to prove his accusations in an unlawful detainer. But I think you need to be much more prepared than to just deny his accusations.

If you have a tenants union in your area, call or drop by to see them to help you evaluate your case. The San Francisco Tenants Union is open most days of the week. Check their weekly schedule online.

Is it worth it?

Make a business decision based on a cost/benefits analysis. Is keeping your apartment worth spending thousands of dollars on an attorney to defend your eviction? Maybe, if your case is relatively strong and your rent is low and rent-controlled. Maybe, if you can recoup the fees you paid the attorney. Check your lease to see if there is a clause that provides that a prevailing party in a lawsuit on the contract is entitled to collect attorneys’ fees. That cuts both ways. If you lose, you will be liable for the landlord’s attorneys’ fees. If your rent is at market rate and you can easily find another place it may not be worth it.

Is it worth it to defend yourself? Again, make a business decision. Place a value on your time. Calculate your out-of-pocket costs. As you might imagine, litigating anything is very, very stressful. How will you hold up?

Landlord’s Shoes

I am just scratching the surface here. The decision to defend an unlawful detainer is extremely personal because your home is at stake. But always try to make a business decision rather than an emotional one. Remember, if you win, you get to keep your place and you get to keep your landlord.

Don’t default!

Whatever your decision, you should always answer the complaint and demand a jury trial. The only time you need not respond is if you already made a deal with your landlord that includes a timely dismissal and is in writing. In California you have five days to respond. Get on it.

Crow & Rose's legal practice emphasizes eviction defense, wrongful eviction and other landlord tenant and real property matters.

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