I am a tenant involved in an UD suit awaiting trial next week, and am nervous about defending myself in court. First and foremost, I will have moved out and paid the remaining rent I owe before trial. Nevertheless, I want to be prepared to defend myself in court but don't know the strength of my defense. The 3 day notice to quit was posted on 3/1/12, and the UD suit a few days later (I was in the hospital and couldn't be served in person), and the proof of service form indicates that copies were mailed on 3/1/12 and 3/6/12. However, the UD suit was sent by certified mail from the plaintiffs postmarked on 3/26/12. I think this proves it was improperly served. Is this a valid defense? What could I expect at trial as a result? Didn't the person perjure himself on the proof of service form?I didn't receive ANY mail prior to the certified mail that was postmarked on 3/26/12, so nothing, not even a copy of the notice to quit. Also, the reason this is an issue is because if I had been served properly, I would have had more time to respond and potentially negotiate with the landlord. I still filed an answer, but it was done hastily cause I wanted to play it safe and not give them an opportunity to enter a default judgment against me for failure to respond in time.
Procedural deficiencies such as improper service of a 3-day notice MIGHT be valid defenses to an unlawful detainer trial, but those defenses must be asserted in your Answer to Complaint.
If you filed an answer to the unlawful detainer complaint prior to moving out, then the unlawful detainer case converts to a regular civil action for money damages once possession is no longer at issue. The landlord would still have to request a trial date in order to prove-up the landlord's damages. However, if you will have also paid the back rent, then the case ought to be dismissed.
If the landlord is also seeking other types of damages such as late fees and damages to the physical property beyond normal wear and tear not covered by the security deposit, the landlord cannot do so in the same unlawful detainer action. The landlord would need to dismiss the unlawful detainer action "without prejudice" and file a new lawsuit for breach of lease to seek the other types of damages, which may include the late fees, unpaid rent as well as future rent, and any other damages.
Note that if the landlord is an individual and the amount of unpaid rent is $10,000 or less, the landlord can use the small claims court, which is the fastest and most economical method of obtaining a judgment. (If the landlord is an entity, the small claims court limit is $5,000.) Converting to a regular civil action could take many months, compared to approximately one month for obtaining a small claims court judgment.
Practically speaking, many landlords are happy just to regain possession of the premises and are not inclined to spend more attorney's fees and costs to obtain a judgment against their former tenants who likely have no assets. Such landlords typically dismiss their unlawful detainer complaint by filing a Request for Dismissal (Judicial Council Form CIV-110).
Hopefully, that is what will happen in your case!
Frank W. Chen is licensed to practice law in the State of California. 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.
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