1. Which statute would be most appropriate? and
2. How do I file or request the petition (i.e. what is the process)
I lost my pro per UD case to my landlord. Though less than 60 days, our names are appearing in a UD registry apartment complexes use. I need more time to find a place to move my family. I am unemployed and broke. Buying unbundled srvcs. Legal Aid swamped.
I may appeal decision.
Facts: House was vacant for over a year; they tried to to modify loan. They failed to follow through - Notice of default entered on 10/4/11. Landlord told judge will short sale house.
Monthly Rental agreement is for $0 rent/mo - pay utilities, maintain property (all of which we have done). This is a case of bad blood between family (they want to collect "cash for keys") and want us out.
Divorce / Separation Lawyer
60 days after the UD is filed the record becomes public, it's the filing date not the trial date.
The answers on this discussion board are general in nature and NOT intended as legal advice. Responding to questions does not constitute an attorney-client relationship. Always see a lawyer about your individual situation.
In California, a tenant may make a motion for relief against forfeiture of the lease pursuant to Code of Civil Procedure § 1179.
Section 1179 provides:
The court may relieve a tenant against a forfeiture of a lease or rental agreement, whether written or oral, and whether or not the tenancy has terminated, and restore him or her to his or her former estate or tenancy, in case of hardship, as provided in Section 1174. The court has the discretion to relieve any person against forfeiture on its own motion.
An application for relief against forfeiture may be made at any time prior to restoration of the premises to the landlord. The application may be made by a tenant or subtenant, or a mortgagee of the term, or any person interested in the continuance of the term. It must be made upon petition, setting forth the facts upon which the relief is sought, and be verified by the applicant. Notice of the application, with a copy of the petition, must be served at least five days prior to the hearing on the plaintiff in the judgment, who may appear and contest the application. Alternatively, a person appearing without an attorney may make the application orally, if the plaintiff either is present and has an opportunity to contest the application, or has been given ex parte notice of the hearing and the purpose of the oral application. In no case shall the application or motion be granted except on condition that full payment of rent due, or full performance of conditions or covenants stipulated, so far as the same is practicable, be made.
The reference in Section 1179 to Section 1174 appears to refer to subdivision (c), which permits a court to permit the tenant to “pay . . . the amount found due as rent, with interest thereon, and the amount of the damages found by the jury or the court for the unlawful detainer, and the costs of the proceedings, and thereupon the judgment shall be satisfied and the tenant be restored to the tenant's estate.” This is essentially the same requirement expressed in Section 1179, that motions under Section 1179 cannot be granted except on the “condition that full payment of rent due, or full performance of conditions or covenants stipulated, so far as the same is practicable, be made.”
On the issue of hardship, the trial court has “near plenary discretion” under Section 1179. See Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1064. But it must balance the hardships on both sides. See id., at 1064-66.
More specifically, the court must “’take into consideration the circumstances of the case, the hardship, if any, to the lessee from the forfeiture, the hardship, if any, to the lessor from relieving the lessee from the forfeiture, the wilful or other character of the breach, and then use its best discretion in determining whether relief will be granted.’” Thrifty Oil Co. v. Batarse (1985) 174 Cal.App.3d 770, 777 (quoting Hignell v. Gebala (1949) 90 Cal.App.2d 61, 70—71).
The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.