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A Question of Due Process in Eviction

Discussion in 'Commercial Landlord & Tenant Issues' started by aviddiver, Apr 24, 2011.

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  1. aviddiver

    aviddiver Law Topic Starter New Member

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    This question was posted in a miscelaneous forum. I tought of posting this in a more appropriate forum and perhaps I can get some leads.

    I was unemployed from beginning of 2010. By September, I received a UD from landlord. The hearing date was 11/01/2010. I was offered a job the week before 11/01 and had to start at 11/01 for orientation with other new hires. I spoke with the LL Attorney and gave me conditions. I wanted to start the job and even though I knew and said to attorney that I cannot afford his condition, I signed a stipulation. The attorney required me to make a month's payment befre stipulation, so, I borrowed money and made the payment.
    It turned out that I was not getting paid for Holidays in the next 90 days. Needless to say, I was not able to make payments as stipulated.
    My question here is that, was there due process violation in the way I was evicted given the events below:

    01/07/2011, Friday: Judgment for Writ of Possession filed and granted
    01/13/2011, Thursday: Writ of Possession served by posting at the door with 5 days to move out by 01/18/2011.
    01/14/2011, Friday: Pro Se; missed ex parte hearing for Stay of Eviction; clerk says have to be in court by 1300hrs. clerk did not accept papers for Stay of Eviction because it is an ex parte and needs 24 hrs notice to Plaintiff (landlord).
    01/15/2011, Saturday: no court
    01/16/2011, Sunday: no court
    01/17/2011, Monday: Legal Holiday (MLK); no court
    01/18/2011, Tuesday: day to move out; no ex parte hearings on Tuesdays

    Any leads are appreciated.
    Thank you.
     
  2. mightymoose

    mightymoose Moderator

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    It doesn't sound like anything was wrong... they were flexible with you and you still did not make payments. The reason you did not make payments is not relevant.
    It is your own fault that you missed the stay hearing.
    We don't know what you signed either, but I would bet that whatever you signed made it easier for them to evict you if you failed to pay again, which is what happened.
     
  3. jacksgal

    jacksgal Super Moderator

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  4. aviddiver

    aviddiver Law Topic Starter New Member

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    Thank you for the link, jacksgal.

    Thank you for your opinion, mightymoose. I believe that the stipulation I signed is one thing whle the due process is another.
    The LL atty had me pay a month's rent before before agreeing to a stip. Then, his condition says that I pay a month's rent on the first of the month of $1225.00 PLUS $400. Then, $400 on the 15th. I owe 2 month's rent.

    My question is in the due process. Sorry for not being clear with regards to the stay hearing because there was no hearing. From my post, the writ was posted on Thursday and got it after work hours. I went to court the next day, Friday, to file a Stay of Eviction. After everything and being able to type up the papers, it was about 2:00pm. The clerk did not accept my papers because it was after 1:00pm. I was told that my papers require an ex parte hearing that starts at 1:00pm. If I am not in line, I will not get a hearing. Furthermore, I was told that I would need to notify the Plaintiff 24 hours before the hearing. Obviously, it is not going to happen. And even if the clerk accepts my papers and I can notify the Plaintiff, the next hearing would be following Monday. The following Monday is MLK Holiday and court is close. So the next business for the hearing would be Tuesday. But the court does not have ex parte hearings on Tuesdays. And Tuesday is the day I should move out. So, I feel that the LL atty targeted to post the writ that Thursday knowing that I would not be able to challenge the eviction.

    As always, I appreciate yours and anyone's advise.
     
  5. aviddiver

    aviddiver Law Topic Starter New Member

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    As I have been evicted by way of Writ of possession, my research continues.

    A plaintiff (LandLord) may apply for a writ of possession by way of a noticed motion, or in proper circumstances by ex parte motion. This area of law is governed by Sections 512.010, et. seq., of the California Code of Civil Procedure.

    Ex Parte Issuance Of Writ: A writ of possession will issue ex parte (without a noticed hearing on very short notice) only if: (none of these apply to me)
    1. The property was stolen, or
    2. The property is a credit card, or
    3. The property was acquired by defendant for commercial purposes, is not necessary for support, will not be available for levy by reason of removal, or destruction, and immediate seizure is necessary to protect it. [Ca Civ Pro § 512.020(b)]
    An ex parte writ of possession cannot issue in any other circumstances. [Ca Civ Pro § 512.020(a)]

    Under the Fifth Amendment to the U.S. Constitution, "No person shall … be deprived of life, liberty, or property, without due process of law." A bedrock feature of due process is fair notice to parties who may be affected by legal proceedings. An ex parte judicial proceeding, conducted without notice to, and outside the presence of, affected parties, would appear to violate the Constitution. However, adequate notice of judicial proceedings to concerned parties may at times work irreparable harm to one or more of those parties. In such a case, the threatened party or parties may receive an ex parte court hearing to request temporary judicial relief without notice to, and outside the presence of, other persons affected by the hearing.

    Ex parte judicial proceedings are usually reserved for urgent matters where requiring notice would subject one party to irreparable harm. For example, a person suffering abuse at the hands of a spouse or significant other may seek ex parte a temporary restraining order from a court, directing the alleged abuser to stay away from him or her. Ex parte judicial proceedings are also used to stop irreparable injury to property. However, the apartment was not in danger in any means because I lived there wit hmy 7-yr-old son.

    Noticed Hearing: The usual method of obtaining a writ of possession is by order following noticed hearing. [Ca Civ Pro § 512.020(a)] The substantive prerequisites for issuance of the writ must be shown at the hearing, and defendant must be given an opportunity to oppose its issuance.(I was not given this).

    An UD judgment is enforced by a writ of possession, which you must immediately issue on request from a prevailing plaintiff. [See CCP §§715.010(a), 715.020, 1174(d), 1170.5(a).] However, in a nonpayment-of-rent case when the landlord did not elect to declare a forfeiture in the 3-day notice and the lease has not expired, you may order that a writ not be issued to enforce the judgment for five days, to give the tenant an opportunity to cure the default and retain possession by paying-past due rent, damages, and costs. [See CCP §1174(c).]

    The required contents of a writ of possession are set forth in CCP §715.010(b). The writ must be enforced without delay, notwithstanding receipt of notice that the defendant has filed a bankruptcy proceeding. [CCP §715.050; but see In re Butler (Bankr CD Cal 2002) 271 BR 867, 876 (bankruptcy debtor/tenant has equitable interest even after landlord obtains unlawful detainer judgment; to obtain relief from automatic stay, landlord must request relief from bankruptcy court; CCP §715.050 is preempted and unconstitutional).]

    California Code of Civil Procedure Section 512.020:
    (a) Except as otherwise provided in this section, no writ shall be issued under this chapter except after a hearing on a
    noticed motion.
    (b) A writ of possession may be issued ex parte pursuant to this subdivision if probable cause appears that any of the following
    conditions exists:
    (1) The defendant gained possession of the property by feloniously taking the property from the plaintiff. This subdivision shall not apply where the defendant has fraudulently appropriated property entrusted to him or obtained possession by false or fraudulent representation or pretense or by embezzlement.
    (2) The property is a credit card.
    (3) The defendant acquired possession of the property in the ordinary course of his trade or business for commercial purposes and:
    (i) The property is not necessary for the support of the defendant or his family; and
    (ii) There is an immediate danger that the property will become unavailable to levy by reason of being transferred, concealed, or
    removed from the state or will become substantially impaired in value by acts of destruction or by failure to take care of the property in a reasonable manner; and
    (iii) The ex parte issuance of a writ of possession is necessary to protect the property.

    In conclusion, It seemed to me that the landlord acquired a Writ of Possession by Ex Parte hearing at which I was not notified and given the opportunity to challenge the Writ. As above, an Ex Parte hearing could be a violation of my constitutional rights (5th). Furthermore, the Writ was not served to me immdediately but a week after. By my understanding, the Writ should not have been issued because the conditions of its issuance does no apply to being that (1) I did not take the property eloniously; (2) property is not credit card; (3) the apartment was not used for business and that it was my primary home and for my 7-yr-old son.

    Am I understanding this correctly? As always, I appreciate any advise.
     

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