I filed my answer to a UD complaint before my (ex-) landlord lost ownership of the property at a trustee's sale. Is the appropriate action to file a motion to dismiss or go to trial and present evidence of the sale?
(Because of the chronology, the answer does not address the sale. At trial, would I be permitted to argue these facts since they were not in my answer?)
You may need to amend your answer if your answer did not allege lack of ownership (hence lack of standing) as an affirmative defense. You could presumably file a motion for summary judgment, but most self-represented litigants probably don't know how to write such a motion. So, you probably would just argue this at the unlawful detainer trial.
However, if you wanted to be aggressive, file the MSJ. In connection with summary judgment motions in unlawful detainer actions, California Code of Civil Procedure § 1170.7 provides as follows:
"A motion for summary judgment may be made at any time after the answer is filed upon giving five days notice. Summary judgment shall be granted or denied on the same basis as a motion under Section 437c." (emphasis added.)
The five day notice requirement is significantly different from the 75 day notice requirement for summary judgment motions in other civil litigation cases.
Code of Civil Procedure § 437(c) authorizes the Court to grant summary judgment when the moving party has established that there is no triable issue of material fact and is entitled to judgment as a matter of law. Specifically, Code of Civil Procedure § 437(c) provides as follows:
"The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
However, the provisions of Code of Civil Procedure § 437c (a) and § 437c (b) concerning the time for making and hearing the motion do not apply to unlawful detainer actions, nor does the requirement of a separate statement supporting or opposing the motion. (See Code of Civil Procedure § 437c (b) and § 437c (r).)
Any opposition to the motion and any reply to an opposition may be made orally at the time of hearing, pursuant to California Rules of Court, Rule 3.1351(b), or in writing pursuant to California Rules of Court, Rule 3.1351(c).
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. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
Real Estate Attorney
You should call plaintiff or his attorney and see if they will voluntarily dismiss or else you will seek your attorneys fees against them.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.