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On a writ of possession If the date the complaint was filed is from a closed case is the writ invalid? Must this date be right?

San Luis Obispo, CA |

According to Bedi v. McMullen a writ of possession can not be issued under an un enforceable judgment. Writ is issued with the wrong date and case number, Both are from a closed case that resulted in possession for the tenant. Judge let plaintiffs attorney evict anyway. Pointed this out to Sheriffs who called their counsel and he advised them not to evict. Back in court Judge recalls writ and tells plaintiffs attorney to get a new writ issued. New writ has the same wrong date on it when the complaint was filed. CA Evidence code section 11 may is permissive and "shall" is mandatory
(b) information required by Section 712.020, the writ of possession of real property "shall" contain the following:(4)The date the
complaint was filed in the action that resulted in the judgment of possession.

Does June14th and Aug. 27th seem like a typo to you? I have read and reread the Evidence Code the CCP and all things related to writs and the CA Evidence code section 11 may is permissive and "shall" is mandatory . Pay close atten. to what is written below, especially #4. (a)A judgment for possession of real property may be enforced by a writ of possession of real property issued pursuant to Section 712.010. The application for the writ shall provide a place to indicate that the writ applies to all tenants, subtenants, if any, name of claimants, if any, and any other occupants of the premises. (b)In addition to the information required by Section 712.020, the writ of possession of real property shall contain the following: (4)The date the complaint was filed in the action that resulted in the judgment of possession. Now go read Bedi v. McMullen and then tell me where typos fit into this, I am just trying to find out.

Attorney Answers 1

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If the date is off but it is obvious a typo or something trivial such as a 2-3 days then it probably is enforceable. Some times small technical mistakes are harmless.

This is not a comprehensive answer and it is impossible to provide a meaningful response without a consultation. Call us for more information. 619.797.5456 www.mataelelaw.com

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The procedure for executing a writ for possession is designed to avoid a forcible eviction whenever possible. Accordingly, the occupants of the property must be given five days from the date of service of the writ to voluntarily vacate the property.* Only if the occupants do not vacate the premises in five days is the levying officer authorized to remove them by force, if necessary, and place the landlord in possession. (Code Civ. Proc., ?? 715.010, subd. (b)(2), 715.020, subd. (c), 1174, subd. (d).) The writ also serves to inform the levying officer and the occupants that eviction has been judicially authorized. The mere fact a judgment for possession has [160 Cal.App.3d 277] been rendered does not mean eviction is authorized. The judgment may have been stayed, (Code Civ. Proc., ? 1176, subd. (a)) the tenant may have been granted relief from the judgment (Code Civ. Proc., ? 1179) or the occupant may not be named in the judgment, (seeArrieta v. Mahon (1982) 31 Cal.3d 381 [182 Cal.Rptr. 770, 644 P.2d 1249].) There is no substitute for the crucial element of a valid writ of execution. The fact that before they forcibly evicted the Bedis the defendants tried but failed to obtain a valid writ of execution in no way entitled them to the trial court's solicitude. * We cannot determine from the record whether the Bedis were served with the writ at least five days before execution. It is difficult to understand why, if they had a subsequent, valid judgment for possession, defendants did not obtain a writ of execution based on that judgment instead of proceeding under a writ issued on a judgment which had been set aside. [2c] Nevertheless, on the basis of the facts pled we conclude the complaint states a cause of action for forcible entry and detainer.

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