I asked the clerk if we could combine the cases and even though the tenant moved out, we are having a hearing for the unlawful detainer trial. Possession is not even an issue. They mailed me a Plaintiff's Order to go to Small Claims via the UD lawsuit. Is this even proper form? They already started a case with the same documents Plaintiff's Order to go to Small Claims with a separate case number. What do I do now? There can't be two trials for the same thing. This is really confusing to me.
you should have dismissed the case when tenant moved out or converted to limited civil for money damages only. since tenant filed a small claims and you counterclaimed, that's where the money issue will be resolved. if the ud is still an active case, dismiss it and all will be as it should be
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You normally cannot consolidate an unlawful detainer lawsuit with the small claims court lawsuit because (what is akin to a cross-complaint) is not permitted in unlawful detainers.
However, if possession is no longer at issue, the unlawful detainer trial would not be entitled to trial priority, and should to be converted into a regular civil case for damages. Once that happens, you could file a motion to consolidate pursuant to Code of Civil Procedure section 1048.
However, if the amount of monetary damages you seek is less than $10,000, then you can dismiss the unlawful detainer case and just proceed with a counterclaim in the small claims court. I assume your counterclaim is for what damages you would otherwise recover in the unlawful detainer lawsuit (beyond just recovering possession of the premises). if so, the proper form to file is a Defendant's Claim in the same small claims case. It is form SC-120:
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 Avvo.com 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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