My landlord served me with a 3-day Notice for $2200.00 then served me the next DAY with a 3-day Notice for $843.00. The landlord filed an Unlawful Detainer against me with the Notice for $2200.00 and when i filed my answer, i included the correct 3-day notice of $843.00. I have trial on Friday. What grounds do I have to request the judge to dismiss the case and force the landlord to re-file the correct valid notice?
Unlawful Detainer
- Thread Starter cmpx
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Gail_in_Georgia
Moderator
Quite likely, absolutely none. You can, of course, argue to the judge that this was the incorrect amount. It's up to him/her to decide whether this was simply a mistake or the landlord has to refile.
Is there some point of dragging this out longer?
Gail
Is there some point of dragging this out longer?
Gail
fredrikklaw
Moderator
You Have No Cause!
I am of the same opinion as well.
Never mind that you have absolutely no cause or grounds whatsoever to ask for a dismissal based on the landlord's mistake of inserting the wrong amount in his complaint, as well as the fact that a motion to dismiss is a Noticed Motion giving at least a 5 day opportunity for a reply, you are procedurally barred from making such a motion anyways.
You appeared in the case when you answered the unlawful detainer and have already objected to validity of the first 3-Day notice ($2,200) and by way of a counter claim inserted what you deem to be the correct 3-day notice ($843.00).
All that aside, unlawful detainer actions are landlord favoring summary procedures the aim of which is to return the property to its rightful owner without much fuss or frills, which is why such an action is mandated to be scheduled for a trial within 20 days of filing of the complaint when it takes over a year sometimes to convene a murder trial.
So if you are planning to continue your tenancy with this landlord, you must have ready on you to pay the landlord $843.00 in court to bring your account current. But only if the termination notices DO NOT contain or included a landlord's election to terminate lease upon judgment, which will mean whether you settle or not and come what may on the day of the trial, you will be given a few days to leave the property.
fredrikklaw
I am of the same opinion as well.
Never mind that you have absolutely no cause or grounds whatsoever to ask for a dismissal based on the landlord's mistake of inserting the wrong amount in his complaint, as well as the fact that a motion to dismiss is a Noticed Motion giving at least a 5 day opportunity for a reply, you are procedurally barred from making such a motion anyways.
You appeared in the case when you answered the unlawful detainer and have already objected to validity of the first 3-Day notice ($2,200) and by way of a counter claim inserted what you deem to be the correct 3-day notice ($843.00).
All that aside, unlawful detainer actions are landlord favoring summary procedures the aim of which is to return the property to its rightful owner without much fuss or frills, which is why such an action is mandated to be scheduled for a trial within 20 days of filing of the complaint when it takes over a year sometimes to convene a murder trial.
So if you are planning to continue your tenancy with this landlord, you must have ready on you to pay the landlord $843.00 in court to bring your account current. But only if the termination notices DO NOT contain or included a landlord's election to terminate lease upon judgment, which will mean whether you settle or not and come what may on the day of the trial, you will be given a few days to leave the property.
fredrikklaw
I guess I should have explained the situtation a little more detailed.
There are several things that we making this house un-inhabitable. For one, the electrical panel was melted at the bus bars and needed to be replaced. There was no weather striping on the door and windows. You could see daylight through the openings. The main entry doors would not lock, There was no heating period in the house. 1/2 of the house did not even have any heater at ALL and the other half was covered by a unit on top of the house that doesn't even work because the compressor is blown out. There was garbage and debris left on the property including hypodermic needles in the flower beds and grass where my children play. There were 2 broken windows in the house in which the landlord said she would replace the first month we were there. I notified the landlord of all the MAJOR repairs in the home and received no response. 50 days later, In October, I sent a letter to the landlord informing that there would be no monies paid until all MAJOR repairs were fixed. Still did not hear from landlord. Finally in the end of November, the landlord had the electrical panel replaced. Then in the second week of Decemeber they installed a heater in the portion of the home that never had one. During this time they never once objected to me not paying monies during the time of the repairs. After that, they decided that the new heater that they in stalled in the portion of the house that didn't have one, was sufficient enough to heat the rest of the house instead of fixing the main heater unit. Remind you the heater they installed at one end of the house, only covers a maximum of 400 sq. feet and the home is approx 2300 sq ft. Instead of fixing the main unit, they decided to evict me, which currently I have NO HEAT in 80 % of my living space including my bedroom and my kids bedrooms. For the last 4 months, I have been trying to heat my home with space heaters and propane heaters. Not to mention the fact that because of the electrical panel and the main heating unit not working properly, my Electric bill went from being $190 to $1080 in 1 month. The wiring in the house is so bad that my lights get BRIGHTER not dimmer. When they put the new panel in, they never once check any of the wiring in the house which is the same wiring that caused the panel "bus bars" to melt. So the landlord decided to try and evict me rather than allow is home warranty company to replace the main heater on top of the house (which is fully covered by the warranty company and is no cost to the landlord).
I hope that helps explain my position now. Is there a chance that the Judge will allow me to stay paying a portion of rent until all Major repairs are complete?
There are several things that we making this house un-inhabitable. For one, the electrical panel was melted at the bus bars and needed to be replaced. There was no weather striping on the door and windows. You could see daylight through the openings. The main entry doors would not lock, There was no heating period in the house. 1/2 of the house did not even have any heater at ALL and the other half was covered by a unit on top of the house that doesn't even work because the compressor is blown out. There was garbage and debris left on the property including hypodermic needles in the flower beds and grass where my children play. There were 2 broken windows in the house in which the landlord said she would replace the first month we were there. I notified the landlord of all the MAJOR repairs in the home and received no response. 50 days later, In October, I sent a letter to the landlord informing that there would be no monies paid until all MAJOR repairs were fixed. Still did not hear from landlord. Finally in the end of November, the landlord had the electrical panel replaced. Then in the second week of Decemeber they installed a heater in the portion of the home that never had one. During this time they never once objected to me not paying monies during the time of the repairs. After that, they decided that the new heater that they in stalled in the portion of the house that didn't have one, was sufficient enough to heat the rest of the house instead of fixing the main heater unit. Remind you the heater they installed at one end of the house, only covers a maximum of 400 sq. feet and the home is approx 2300 sq ft. Instead of fixing the main unit, they decided to evict me, which currently I have NO HEAT in 80 % of my living space including my bedroom and my kids bedrooms. For the last 4 months, I have been trying to heat my home with space heaters and propane heaters. Not to mention the fact that because of the electrical panel and the main heating unit not working properly, my Electric bill went from being $190 to $1080 in 1 month. The wiring in the house is so bad that my lights get BRIGHTER not dimmer. When they put the new panel in, they never once check any of the wiring in the house which is the same wiring that caused the panel "bus bars" to melt. So the landlord decided to try and evict me rather than allow is home warranty company to replace the main heater on top of the house (which is fully covered by the warranty company and is no cost to the landlord).
I hope that helps explain my position now. Is there a chance that the Judge will allow me to stay paying a portion of rent until all Major repairs are complete?
Gail_in_Georgia
Moderator
Look; you can't have it both ways.
You can't claim that the house is uninhabitable (which, from your description, is very likely) and then state, oh we don't want to move because it's a pain to pull my child out of school...as long as we can live here rent free. It is highly unlikely a judge is going to buy that argument.
As a tenant in California, you do have several options; these include "repair and deduct", "abandon due to uninhabitability" or "withhold a portion of the rent". If the latter it is useful to put this portion in a safe place in case the judge rules that you owe at least some of the back rent:
http://www.dca.ca.gov/publications/landlordbook/repairs.shtml
Gail
You can't claim that the house is uninhabitable (which, from your description, is very likely) and then state, oh we don't want to move because it's a pain to pull my child out of school...as long as we can live here rent free. It is highly unlikely a judge is going to buy that argument.
As a tenant in California, you do have several options; these include "repair and deduct", "abandon due to uninhabitability" or "withhold a portion of the rent". If the latter it is useful to put this portion in a safe place in case the judge rules that you owe at least some of the back rent:
http://www.dca.ca.gov/publications/landlordbook/repairs.shtml
Gail
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