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Tenant vacates before UD court date.

Santa Maria, CA |

In California If a tenant answered the summons to a unlawful detainer complaint by a landlord and vacated the unit prior to the court date but does not appear in court.

Does the judge have to dismiss the UD complaint and refer the money damages part to a civil trial with a separate hearing?

Or does the judge just rule right then for money damages if the tenant does not show up?

Or does the judge dismiss UD action and refer plaintiff to a possible future small claims action instead.?

Attorney Answers 3

Posted

At the time of the trial, when possession is no longer at issue, the court will convert the unlawful detainer case to a regular civil case for damages. (The judge does not dismiss the UD case, but the plaintiff does have the right to do so). This is because the UD no longer has trial priority when possession is no longer at issue.

The landlord has the option of dismissing the unlawful detainer without prejudice, and then file a new civil lawsuit (whether in small claims court or in superior court) for damages. The difference of filing a new action is that the new action can include damages other than unpaid rent and holdover damages.

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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Posted

When the time for trial comes, the judge will roll the UD case into a civil complaint for money damages for back rent, common costs, damages to the premises, etc., as the tenent has left or vacated the property, the claim for possession of the property is no longer an issue or urgency. The judge will not acutally dismiss the Unlawful Detainer case, it is up to the landlord/plaintiff to do it as the tenent has left the building.

The landlord has the option of dismissing the unlawful detainer without prejudice, and then file a new civil lawsuit (whether in small claims court or in superior court) for damages. The difference of filing a new action is that the new action can include damages other than unpaid rent and holdover damages.

Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.

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Posted

California Civil Code section 1952.3 does mandate that the court take trial off calendar and convert it to an ordinary civil action when possession is no longer in issue.

Unfortunately, I have known judges who did not know about the statute or take it at its word. Also, how one goes about showing that possession is no longer in issue is not clear. It should be enough for the tenant to say, "I'm out!" A tenant who later is on the premises is then trespassing. But some judges require evidence that the tenant has vacated and have allowed the landlord to dispute it.

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