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Can I cancel an unlawful detainer trial and refile a trial for a separate issue without being subject to penalties/fines?

Concord, CA |

I am in the middle of a very nasty unlawful detainer suit for nuisance/illegal use. The tenant has a daddy lawyer and is requesting a jury trial. We had a settlement conference today in which he admits that he doesn't have enough holdover rent for the 2 months that he's been living here awaiting the trial. He will have been here 3 months by the time the actual trial is there, without paying any rent. Can I simply serve a 3-day notice to pay rent or quit for the 3 months he owes me, and dismiss the nuisance suit without a penalty, knowing that he cannot pay me at this time, and then refile?

Attorney Answers 2


As the plaintiff, you may dismiss the suit using form CIV-110.. However, if you want to refile, you must dismiss without prejudice as opposed to dismissing with prejudice.

Hope this helps.

Armen Taslakian. 818. 937.3590. Note: Armen Taslakian is an attorney licensed in the State of California. The answer is provided for informational use only. One should not act or refrain to act solely based on the information provided. No attorney/client relationship is created unless an Agreement is signed by the attorney and the client.

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Would I have to dismiss it before filing the suit for non-payment of rent, or could I have 2 suits pending at once?


As long as "trial" has not been commenced in your unlawful detainer lawsuit, you can dismiss it "without prejudice" and then file a new unlawful detainer lawsuit after serving a new 3 day notice to pay rent or quit.

However, it is not entirely clear to me why you need to dismiss the current unlawful detainer suit if the prayer for damages in the UD complaint seeks holdover damages in addition to unpaid back rent as set forth in the original 3 day notice to pay rent or quit.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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It's a case for a 3-day unconditional notice to quit with a jury trial and all sorts of other complications. Non-payment of rent would be easier to prove. Also, he is on Social Security and has told me that I won't collect a dime from him after he is evicted. So I'm trying to figure out my options. If I lose my jury trial case, I have to pay all sorts of fees and then I lose another month and then I have to refile all over again. It's just getting so expensive to evict him. He already said that I won't get a dime from him, so maybe just evict for non-payment and then I don't have to go through the hell of proving all the bad stuff that he did to me with a bunch of police reports and vindictive witnesses, etc. But he keeps filing demurrers to my lawsuits, so I'm just trying to do the most timely thing there is. That's my dilemma.

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