I know CCP 918 governs Stays for Execution of Judgment, but what law governs Stays regarding Writs of Execution??
This is pertaining to unlawful detainers in California. Oh...I think I meant 'Writ of Possession'
Chapter 13 Bankruptcy Attorney
The Writ of Execution of Judgment is what is used by the Sheriff's department in Los Angeles as an instruction from the court that judgment has been entered and its time to execute on the judgment (in most cases collect money or recover possession of the property). You would use CCP 918 to seek a stay of the Execution of Judgment based upon hardship in most cases is what is granted. You can be given up to 40 days whether an appeal is filed or not in limited cases, or up to 70 days in an unlimited case but you could be required to pay fair market rent for that additional time. So by seeking the Stay of Execution of Judgment, if you are successful, the Sheriff would be required to not act upon the Writ of Execution pending expiration of the Stay. So the Writ of Execution is really just part of the execution process of going forward with enforcing the Judgment.
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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).
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.