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If a writ of possession states the wrong date the complaint was filed and the case # is also wrong is the writ invalid?

San Luis Obispo, CA |

The case number on the writ is a closed case where the judgment went to the tenant because of a defective notice and because of default when plaintiff was a no show that day. How can a writ of possession be ordered from a complaint in a case that was ruled in the tenants favor and then closed?

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Attorney answers 1

Posted

The clerk if the court is responsible for executing such a writ. they should check the case number. If they didn't you will have a very hard time getting this unwound.

But... you actually do own money in the other case, I am guessing. So, you would get nowhere fighting this error --if that is the case.

Ms. Straus (aka Carroll) may be reached at 800-400-8978 during regular business hours, Pacific Time, or anytime by email at: ECSEsquire@AOL.com. All of Ms. Straus’ responses to questions posted on Avvo are intended as helpful information based upon the facts stated in the question, and are not to be relied upon as a final legal opinion. It may not be what you wished to hear, and it does not create an attorney-client relationship. Ms. Straus is licensed to practice law in California. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state, and retain him or her. Me Straus provides “unbundled” services if you need specific assistance with a specific issue.

Asker

Posted

No money owed in the case that is stated on the writ but now the court wont issue a court date for a right to claim of possession hearing with the case number on the writ that was used to evict. Can they change case numbers whenever they feel like it. Please read Bedi v McMullen and let me know what you think.

Edna Carroll Straus

Edna Carroll Straus

Posted

I think you owe these people money-- but are hoping to escape based on an error. I think clerks are supposed to fix such errors but it will take lot of work. (No attorney will take this case.) I also think the real case will go forward while you are off chasing the wild goose. Bedi v McMullen is about trespass. Not on point. Deal with the people you owe the money to.

Asker

Posted

Bedi v McMullen is about using an invalid writ from an unenforceable judgement and manipulating the sheriffs to evict on a writ that they knew was no good. It goes on to say that a landlord that evicts under the color of an invalid writ is in no better position than a landlord that uses self help eviction tactics, Yeah the court that would not recognize the written notice of substandard conditions from the local code enforcement and would not even look at the invalid and illegal 3 day to pay or quit notice that was served 70 days after the written notice of substandard conditions with no repairs being made. CC1942.4.(a) states that....I know you know it.And yes all the conditions existed but judge did even look at it or the 3 day notice that asked for rent already paid and asked for rent not due. So before you assume that every one is a slime you should also know that after 10 years of not missing a rrnt payment the scumlord would not fix heater or any of the other substandard issues.

Asker

Posted

I thought lawyers were not to assume anything. NOT HELPFUL

Edna Carroll Straus

Edna Carroll Straus

Posted

I am pretty sure the slime notion came from you.

Asker

Posted

My rent is 1500.00 and that is way to much money to have to be dealing with a place that does not have a heater.My rent included my utilities also. The jerk I was paying my rent to quit making the mortgage payments 2 yrs. ago and he stopped paying the utilities in Feb of 2012 . He did that right after he informed me that I needed to send 100.00 more, effective immediately for increased utilities. No the rent did not drop back where it was. The rent I did not pay LL went into an escrow account. Oh by the way your latest comment is just as useless and unprofessional as you have been. I have used Avvo many, many times and this is the first and only time I have ever received derogatory,smart ass answers from anyone.You shouldn't assume you know the whole story when you do not. There are bad tenants out there but I am not one of them. Something else you are wrong about is that no attorney would touch this case, in fact the first three attorneys I met with all were willing to take the case . I chose the first one.

Asker

Posted

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. Additional information 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. - edit

Edna Carroll Straus

Edna Carroll Straus

Posted

YOU fix this. it is YOUR problem--not mine.

Asker

Posted

Thank You for the quick reply, no I do not need your help but would accept it if offered. Mostly I was trying to get opinions on the whole it is just a typo so the writ is valid vs the wrong information pursuant to 712.020 and the writ "shall" (being mandatory) contain...so the writ is iinvalid argument Typo vs CCP 712.020

Asker

Posted

Any thoughts would be appreciated.

Asker

Posted

Edna,Since shall is mandatory,and 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. How can anything but the date the complaint was filed in an action that resulted in possession be used to issue the writ? You are not the only lawyer that I am asking. I am not trying to be difficult ,merely trying to understand how a typo could possibly take precedence over a code or a civil procedure.

Edna Carroll Straus

Edna Carroll Straus

Posted

If you bothered to read my disclaimer you'd know I am not "Edna"--that is Avvo's BS. AS I said-- this is going to be hard to fix-- but fixing it is YOUR JOB. Have you noticed no one else has even responded????? Smart attorneys avoid clients with chips on their shoulders and/or axes to grind-- non paying ones even more so.

Asker

Posted

carol we paid over 4k for the privilege of getting a lawyer that would act on our behalf . It is unfortunate he was so arrogant that he would not listen until 6 mo. into the appeal.He could not get his head wrapped around the notion that a mere cash paying client might have done better, more thorough research than he did and actually have a point worth arguing . Get past the incorrect assumption about money being an issue with me. I am not rich but by the same token I am not without means.If you could use that same narrow minded focus on forming your opinion ,so you could give it to me ,I would have hopefully already had a better understanding about the perplexing typo versus CA evidence code and ccp what a writ of possession requires.I can cite CA laws and code requirements as they pertain to this issue .What can you cite on typos and their requirements ? Thank you. been on the path to undrst

Edna Carroll Straus

Edna Carroll Straus

Posted

My name is Carroll-- but thanks for not calling me Edna. If you want to hire me to a limited rep'n will take this on. If it was easy you would have managed it by now. I have no doubt there are far too many attorneys with confirmation bias. I am n ot oine of them. But I seldom take clients who insult me, so... keep on bitchin'. How's ;s that working out for you?

Edna Carroll Straus

Edna Carroll Straus

Posted

P.S. "the incorrect assumption about money being an issue with me"-- I nebr said that--YOU assumed that is what I meant by what I DID say. If no money is at stake here...what is?

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