Unlawful Detainer Trial Practice Outline

Practising Law Institute

1177 Avenue of the Americas

New York, New York 10036

California Eviction

Defense:

Protecting Low-Income

Tenants 2017

Co-Chairs

Madeline S. Howard

Jith Meganathan

Unlawful Detainer Trial Practice Outline

Monique Farris

Centro Legal de la Raza

Shirley Gibson

Legal Aid Society of San Mateo County

Lorraine López

Inner City Law Center

If you find this article helpful, you can learn more about the subject by going

to www.pli.edu to view the on demand program or segment for which it

was written.

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PREPARATION FOR TRIAL

1. Timing

 Since UDs are summary proceedings, trial must be set no later

than 20

day after request to set is filed (CCP §1170.5(a)).

○ Opposing counsel will likely file a Request to Set Trial

once service of the Answer(s) is complete.

 Initiate discovery as close to the date of Answer as possible,

otherwise impractical to complete.

○ Consider personal service or overnight delivery if eco-

nomically feasible.

 If parties need more time to complete discovery, include dis-

cussion of trial continuance in meet and confer process.

 Continuances by stipulation of the parties are most likely to

be granted.

2. Discovery tools

 Full discovery is permitted in all unlawful detainer proceedings.

The “Economic Litigation” rules (CCP § 90 et seq.) restricting

discovery in limited civil cases do not apply to unlawful detain-

ers. (CCP § 91(b))

 Landlord and tenant may utilize all available discovery devices

authorized by the Civil Discovery Act. (CCP § 2019.010)

 The normal ten-day “hold” on certain discovery by plaintiff is

shortened in UD actions to five days after service of the sum-

mons and complaint on defendant (or defendant’s appearance,

whichever first occurs). Special statutes shorten the normal dis-

covery time-frames otherwise applicable in general civil actions.

a. Interrogatories - CCP § 2030.020(c); responses are due

within five days after service. (CCP § 2030.260(b))

b. Inspection demand - CCP § 2031.020(c), (d); Inspection

of documents: the party upon whom a demand is served

must be given at least five days

from date of service of the

demand to respond. (CCP § 2031.260 (b))

c. Request for admissions - CCP § 2033.020(c); the party

must be given at least five days after service of the

requests to respond. (CCP § 2033.250(b))

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d. Depositions: at least five days after service of the dep-

osition notice but not later than five days before trial.

(CCP § 2025.270(b))

 Cost of Discovery: Costs should be a consideration if it is uncer-

tain whether tenant will prevail at trial and there is a written

lease with no cap on attorney’s fees for prevailing party.

○ Court Reporters Board of CA: Transcript Reimbursement

fund can cover the cost of transcript of deposition or Court

proceedings. Includes one additional copy and expedited

fees. See: http://www.courtreportersboard.ca.gov/licensees/

trfguide.shtml

 Using Discovery Effectively: Your time and resources will be

used more efficiently if you are selective with your Discovery

tools.

○ Actually review the responses you receive. May provide

leads for development of defenses or additional witnesses.

 Motion to Compel: Can be filed at any time upon 5 days notice.

(CCP §1170.8)

○ Meet and Confer is not technically required if no

responses have been received, but in practice Court is

more likely to grant sanctions if you made an attempt to

meet and confer prior to filing.

○ Meet and Confer declaration and separate statement

required to compel further answers (CRC 3.1345)

 Timing Considerations

○ Discovery must be completed 5 days prior to trial. Com-

pleted = due date for responses and depositions com-

pleted before then.

○ Serve discovery shortly after Answer is filed. Have a strat-

egy for common cases (e.g. non-payment cases, hab-

itability cases, etc.).

○ If you will be noticing multiple depositions, professional

courtesy to meet and confer after service of notices to

coordinate dates and times for depositions. Counsel is

almost never available on the date you originally set.

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○ Be prepared for “retaliation.” If you serve a lot of dis-

covery, be prepared for discovery propounded by plaintiff.

3. Investigation and Evidence Gathering

 Visit the premises: Your storytelling and advocacy will be

greatly improved if you get to know the home you are

defending.

○ Take photos for use as evidence or demonstrative exhibits.

For purposes of authentication, better practice to have

someone who isn’t trial counsel take the photos.

○ Interview neighbors and household members. Get names

and contact information in the event you need to sub-

poena as a trial witness.

○ Walk around the property; get a sense of the layout of

the building (if relevant to case).

 Code enforcement: Obtain copies of inspection reports and

orders. Interview inspectors/investigators as you may want to

subpoena them as witnesses. Do a CPRA request if there’s a

lengthy history of code violations.

 Expert witnesses: consider whether your case benefits from

experts such as private habitability inspectors or medical pro-

fessionals. If so, interviewing and retaining these witnesses must

happen early in your case.

 Keep your client involved: Give your client a list of additional

evidence they may have in their possession with a deadline.

○ Review client documents: rent receipts, maintenance

requests, lease agreement, correspondence to/from land-

lord, prior notices, invoices for repairs, etc.

○ Get a list of potential witnesses: neighbors, other landlord

agents not already disclosed

JURY TRIAL OR BENCH TRIAL?

1. Defendant is entitled to jury trial on issues of fact, unless waived

(CCP §1171, CCP §631(f))

a. Waiver by failure to timely demand within five days of the

Notice of trial setting.

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b. Waiver by failure to post jury fee or have it waived (CCP

§631(b))

c. Failure to appear at trial

d. Written consent or oral consent in open court

e. Failure to post daily juror fees and mileage fees per CCP

§631(e)

2. Factors to consider

 Credibility & Likability

○ Is the client an appealing/credible witness? If you have

client control issues or if their credibility could be ques-

tionable in front of a jury.

○ Is the landlord an appealing/credible witness? It’s dis-

appointing, but if the landlord doesn’t come off as a bad

actor, they could garner the sympathy and votes of the

jury.

 Would the primary defenses make common sense to a non-

lawyer, or are they more technical?

○ Very technical defenses such as illegal rent increases over

the span of many years, compliance with rent control stat-

utes, etc. can sometimes be too convoluted for a jury to

follow.

 “Damage Control:” Are you hurting your client’s interests by

pursuing a jury trial?

○ Example: Section 8 cases might hinge on technical

defenses; you might have a better result in front of a judge

rather than 12 jurors who might not be

sympathetic to

someone who is already receiving a government subsidy.

○ In cases with weaker defenses, counsel may be willing

to agree to an alternate stipulated judgment for a “soft-

landing” if you waive jury.

 Risk of attorney’s fees award:

○ If fees are not capped and significant chance of judgment

in landlord’s favor.

 Is the prospect of a jury trial likely to motivate the plaintiff to

settle the case?

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○ The answer is usually – YES.

 Is there time to adequately prepare for a jury trial?

 Client concerns: Ultimately you still need to discuss how you

will proceed to trial with your client and obtain their consent.

○ Financial concerns: Will your client miss a lot of work

(i.e. income)? Can they get fired for asking for too much

time off?

○ Fear: Many clients fear the judicial system, so much so

that they would rather settle or have an expedited pro-

ceeding in front of a judge. “I just want to get it over

with.”

DAY OF TRIAL

1. Witness Management

 Make sure that you have secured witness attendance. You will

typically need your witnesses to be available by the afternoon

of the first day of trial.

 Subpoena nonparty witnesses

○ If any of your witnesses refuse to appear voluntarily, they

must be subpoenaed. The subpoena must be served at least

24 hours prior to the trial by someone who is over the age

of 18 and not a party to the lawsuit. (CCP §1987(a)-(c))

○ It is also sometimes strategically wise to subpoena

friendly witnesses.

○ If the witness requests, you must pay them a $35.00 wit-

ness fee when the subpoena is served, plus 20 cents per

mile each way. (CCP §1987 (a)-(c))

 Notice to Appear for party witnesses

○ No subpoena necessary for adverse party or agent, ser-

vice of notice to appear is sufficient. (CCP §1987(b))

 Prepare your client for the possibility of being called as a Plain-

tiff’s witness. (Evid. Code §776)

2. Trial Documents

 Have originals and three copies of all of your documents with

you.

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○ Plaintiff’s attorneys are often unused to unlawful detainer

cases being pushed to trial. They will often show up with-

out documents. If you have your documents ready, the

judge may elect to rely only on your documents, disad-

vantaging the landlord. To the contrary, if you don’t have

your documents ready to go, the judge may rely on the

landlord’s documents, disadvantaging your client.

○ Review local rules for any standing pre-trial orders. Local

rules will typically specify which documents are required

on the first day of trial and which documents must be

exchanged prior to trial.

 Pay particular attention to document exchange

requirements, as some local rules require exchange

several days prior to trial. Many landlord attorneys

do not comply with these exchange rules. If you

have complied and opposing counsel has not a

judge may refuse opposing counsel’s filings.

 Trial Brief

○ Some courts require preparation of a trial brief describ-

ing the case, the issues to be resolved, your client’s argu-

ments, and points and authorities in support thereof.

○ Why you should prepare a trial brief:

 You’re dealing with a judge who is unfamiliar with

unlawful detainer law or you anticipate a unique

legal issue that the judge will need to be educated

on.

 Allows you an early opportunity to present your

story to the judge. You can include facts so that the

judge sees the big picture. Present sympathetic or

outrageous facts up-front, let the judge know this

isn’t just another unlawful detainer.

 Effective trial preparation tool. Forces you to organ-

ize your case in advance and make sure you do not

overlook any essential points of law.

○ Be prepared to submit additional briefing on specific

issues as they arise during pre-trial discussions, motions in

limine, jury instruction negotiations, etc.

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 Examples of common trial briefs to keep handy in

non-payment cases:

 Actual notice not required to assert a defense

based on breach of the implied warrant of

habitability.

 Three-day notice overstates the amount of rent

due because it includes illegal late fees (liqui-

dated damages).

 Jury Instructions

○ Special Jury Instructions

 Examples: instructions pertaining to local ordinances,

reasonable accommodation defenses, unclean hands,

waiver/estoppel.

○ Some judges will require a full set of customized CACI

instructions as opposed to a list of instructions to be used.

○ Study CACI’s and the accompanying instructions. Do

not hesitate to supplement CACI instructions.

 Jury Verdict Form

○ Craft carefully. Make sure all your defenses get in. Rank

your defenses, list best defenses first, habitability last.

 Statement of the Case

 Motions in Limine

○ Plaintiff’s attorneys rely heavily on motions in limine.

○ Common Plaintiff’s motions in limine:

 Motion in limine arguing that all evidence of the

breach of implied warranty of habitability should be

excluded because the plaintiff did not have notice of

the defects or because the defense was not properly

pled.

 Motion to preclude question of breach of warranty

of habitability from going to jury.

 Motion to preclude retaliation defense in non-pay-

ment cases.

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 In cases involving a defense based upon retaliation

or discrimination, you can expect a motion in limine

by plaintiff seeking to shift the burden of proof

regarding the plaintiff’s dominant motive or good

faith from the plaintiff to the defendant.

 Another likely motion in limine is one to exclude

evidence of other property owned by the plaintiff.

 Motion to exclude any mention of the fact that the

Defendant will become homeless if evicted/that the

Defendant has nowhere else to go.

○ Common Defendant’s motions in limine:

 Motion to exclude any evidence of behavior allega-

tions not stated in the notice. Especially important

in nuisance cases where notice does not contain facts

sufficient to show a pattern and practice.

 Motion to exclude any evidence of bad conduct by

your client that is unrelated to the ground for evic-

tion stated in the notice to quit.

 Motion to preclude any evidence not turned over in

discovery. Make your discovery requests very spe-

cific as to the categories you know will be liti-

gated. Will prevent Plaintiff from producing new

fake notices/ledgers/other documents at trial.

 Motion to preclude evidence of rent alleged to be

owed before or after the notice period.

 Motion to preclude evidence of prior unlawful

detainer actions or other lawsuits.

 Motion to preclude evidence of any criminal

convictions.

○ Examples of other useful motions in limine to consider:

 Presence of Plaintiff’s agent at counsel table during

trial

 Presence of other non-party witnesses in the court-

room during trial.

 Notice(s) to Appear

 Subpoenas

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 Request for Written Decision

○ Especially if you do not have a court reporter.

 Proposed Voir Dire Questions for Jurors

 Witness List

 Exhibit List

 Exhibits

○ Check with court clerk regarding specific exhibit labeling

instructions.

3. Assignment to Trial

 Master Calendar In some jurisdictions, you will report to a

presiding judge on the day of trial for assignment to a trial

department. A presiding judge will often require the parties to

see a settlement judge before assigning a trial judge. If your

case does not settle the presiding judge will assign your case

out to trial, often forthwith. Counsel must come to trial assign-

ment prepared to start trial.

 Commissioner If the parties so stipulate, the case may be

tried before a judge pro tem or commissioner. (Cal Const. Art.

VI Section 21; and CCP 259, defining powers and duties of

commissioners.) Depending on the knowledge and experience

of any particular commissioner or pro tem, you may or may not

decide to stipulate to this person hearing your case. Like chal-

lenging a trial judge, refusal to stipulate should be a careful

decision.

 CCP §170.6 Peremptory Challenge

○ Code of Civil Procedure §170.6 guarantees the right to

exercise one peremptory challenge per case to the trial

judge, which must be raised at the time of assignment.

(CCP §170.6) If timely and properly raised it immediately

disqualifies the assigned judge for general prejudice. No

specific cause need be alleged or proved. (CCP §170.6)

○ Challenge must be timely. For cases assigned to trial

under the master calendar system, a 170.6 challenge must

be made in the master calendar department immediately

upon trial assignment.

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 Cannot be raised after the case has been sent out to

a trial department. (CCP §170.6(a)(2))

 This rule applies where the parties personally appear

before the court where the assignment is made.

 Outside of the master calendar system, generally, a

CCP §170.6 challenge may be raised any time

before trial commences. (CCP 170.6(a)(2); People

v. Sup.Ct. (Lavi) (1993) 4 C4th 1164, 1171, 17

CR2d 815, 817.)

○ Motion may be oral or written, without prior notice.

○ Tactical considerations, alienating judges

 Consider who else you might get.

 At the end of the day duty is to your current client.

4. Court Reporter

 Typically want reporter present for Motions in Limine

 Depending on cost, may or may not want reporter for voir dire

5. Interpreter

 For interpreting witness testimony, you need someone court

certified in that language. To find interpreters registered with

Judicial Council: www.courts.ca.gov/programs-interpreters.htm.

 Few Courts provide interpreters for unlawful detainer trials.

However, the Judicial Council encourages trial courts to use

surplus funds from previous years to provide interpreters for

indigent non-English speaking persons in civil cases, with

unlawful detainers being one area of priority.

 Some trial courts will permit the use of a non-certified inter-

preter if the parties stipulate.

CONDUCTING YOUR TRIAL

1. Pretrial Conferences

 Provides an opportunity to discuss logistics, ground rules, and

other preliminary matters.

 Logistics

○ Courtroom schedule.

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○ Time Estimates: A jury trial in a simple unlawful detainer

action will usually take two to three days. Be sure not to

underestimate the length your case will take. The judge

will relay your representation to the jury and will not be

pleased if you go over.

○ Who is paying for the jury? Make sure your client has

paid jury fees or has an additional fee waiver on file.

 Review of pleadings and issues

○ Can any issues be narrowed by stipulation? Can parties

stipulate to any facts?

○ What issues remain to be tried?

 Witnesses

○ Order and estimated time for each witness.

○ Be prepared to explain what each witness will testify

to/why they are necessary.

○ Avoid being duplicative.

 Jury Selection

○ Every judge has a unique jury selection procedure. Make

sure you know exactly how things will proceed before the

jurors arrive.

○ Some judges will give you a brief summary on how they

conduct voir dire, what method of selection they use, how

much you have for questions, and how they will handle

challenges for cause.

○ Be prepared to have a strategy if the Court asks you about

how to handle alternates, indicates they will limit attorney

questions, and any hardship pleas from jurors

○ Remember that if you do not exercise your peremptory

challenge then you accept the jury as paneled, you do not

get a second chance!

 Settlement Possibilities

○ Settlement on day of trial is common. Judge may urge

parties to explore last-minute settlement possibilities.

○ Both sides must stipulate to settlement discussions with

trial judge

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 Discuss Motions in Limine

○ Briefing/argument schedule

○ Request time to file opposition briefing.

○ Motions that do not comply with the applicable local

rules are likely to be disregarded by the trial judge.

2. Other Pretrial Motions

 Motions for Judgment on the Pleadings

○ Can be made on day of trial, orally or in writing.

○ May have picked up case after Defendant already

answered, or may opt to not demur and wait to bring

motion on day of trial to leverage better settlement/get

more time.

○ Examples: Failure to include language required by local

ordinance or CCP §1161(2).

 Motions to bifurcate have judge decide legal issues before

deciding to proceed to jury trial. Can help with settlement.

 Never underestimate judge’s willingness to get rid of your

unlawful detainer.

 Common Plaintiff motions:

○ Motion to strike jury trial

○ Motion to strike second amended complaint

○ Motion to bifurcate issue of habitability

3. Jury Selection

 Establish a system (seating chart)

 Voir Dire Questions

○ Scope: “trial judge should permit liberal and probing

examination calculated to discover bias or prejudice with

regard to the circumstances of a particular case.’ (CRC

3.25(a)(1))

○ Craft questions that signal defense theories.

○ Avoid pitfalls: being boring, grandstanding (if you are

talking more than the prospective jurors, you are talking

too much).

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○ Keep it conversational. You can use “polling” questions.

 Have you as a tenant ever had a conflict with a

landlord?

 Do you think that, regardless of the conditions in a

rental unit, the tenant should have to pay 100% of

the rent?

 Who is your ideal juror?

 Landlords on your jury

○ Think about keeping them on. No landlord wants to

identify with a bad landlord.

○ Use questions to establish best practices for landlords in

contrast to Plaintiff’s actions. (e.g. How long does it take

you to respond to tenant requests for repairs? Would you

allow mold, rodents, etc. in your property?)

 Client specific questions:

○ Does anyone have any strong opinions about immigrants

in our community?

○ Language issues

○ What about immigrants who have become citizens, any

problem with them working in our community and receiv-

ing public benefits to subsist?

 Challenges for Cause

○ Unlimited number of for cause challenges.

○ General disqualification (e.g. language)

○ Implied bias knowledge of facts or parties/enmity

against or bias toward either party. (CCP §229)

○ Actual Bias “the existence of a state of mind on the

part of the juror in reference to the case, or to any parties,

which will prevent the juror from acting with entire impar-

tiality, and without prejudice to the substantial rights of

any party.” (CCP §225)

 Peremptory challenges Six strikes per side. (CCP §231(c))

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4. Evidentiary Issues

 Bad Faith intent to evict in Rent Control Jurisdictions

○ Use indirect evidence to prove that landlord lacks a

legitimate reason to evict a tenant:

 The tenant’s rent is lower than all other rents in the

landlord’s building.

 The tenant has lived in the building the longest.

 Retaliation: rebuttable presumption

○ Civil Code §1942.5(a): “If the lessor retaliates against the

lessee because of the exercise by the lessee of his rights

under this chapter or because of his complaint to an

appropriate agency as to tenantability of a dwelling, and if

the lessee of a dwelling is not in default as to the payment

of his rent, the lessor may not recover possession of a

dwelling in any action or proceeding, cause the lessee to

quit involuntarily, increase the rent, or decrease any ser-

vices within 180 days of any of the following: (1) After

the date upon which the lessee, in good faith, has given

notice pursuant to Section 1942, or has made an oral

complaint to the lessor regarding tenantability; (2) After

the date upon which the lessee, in good faith, has filed a

written complaint, or an oral complaint which is registered

or otherwise recorded in writing, with an appropriate

agency, of which the lessor has notice, for the purpose of

obtaining correction of a condition relating to tenantabil-

ity; (3) After the date of an inspection or issuance of a

citation, resulting from a complaint described in paragraph

(2) of which the lessor did not have notice…” (CCP

§1942.5(a))

○ Tenant has initial burden of producing evidence of the

retaliation.

○ Tenant must offer evidence of each element:

 (1) Complaint to a government agency

 (2) Landlord terminated the tenancy before expi-

ration of the 180-day protective period; and

 (3) The tenant’s rent payments are not in default or

the tenant has a lawful basis for nonpayment

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○ An inference (rather than presumption) of prohibited retal-

iatory motive is then established. The landlord then has

the burden of producing rebuttal evidence of their other

good faith motive.

5. Burden of proof: Judgment will be entered for the party who proves

his or her case or defense by a preponderance of the evidence. (Evi-

dence Code 115, CACI 200)

6. Opening statements

a. Content

i. Introduce your case theme, which will be a unifying

thread throughout your trial presentation.

ii. Outline the facts you intend to prove. This is the road map

of the case that will help the jury anticipate and follow

your trial presentation.

iii. Say what you want from the jury.

iv. Do not argue points of law or refer to inadmissible

evidence.

b. Presentation

i. Outline your points and practice delivering your opening

with minimal reference to your outline. Do not read from

a written statement.

ii. Use plain language and simple concepts, without being

condescending. Avoid legalese. Practicing in front of non-

lawyers can garner the best feedback.

iii. Consider use of visuals such as diagrams and photos if

your case is complicated or very visual.

iv. Keep it short.

7. Plaintiff’s Prima Facie Case will include:

 existence of the landlord-tenant relationship

 ownership or management authority

 lease or rental agreement (written, verbal, implied)

 termination of that relationship

 service of a valid notice to quit

 expiration of the notice

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 the tenant’s continued possession of the premises

 rental value damages (usually predicated on contract rent)

8. Motion for nonsuit after Plaintiff’s presentation if one or more

elements are missing

a. CCP § 581c(a) challenge to the sufficiency of plaintiff’s evi-

dence at an early stage of trial without waiving the right to

present a defense if the motion is denied

b. Argument is similar to a demurrer

9. Cross exam of Plaintiff’s witnesses

 Likely witnesses to anticipate are:

○ Landlord or property manager: to authenticate the lease

and notice, testify to the breaching conduct, service of

the notice, and continued occupancy by the defendants.

○ Complaining witnesses: neighbors with first hand

knowledge of defendant’s conduct that breaches lease or

creates a nuisance, “victims” of defendant’s conduct(e.g.,

“I live next door and I hear a dog barking in their apart-

ment all day long.”)

○ Law enforcement: to confirm nuisance behavior or illegal

conduct by tenants or guests, authenticate police report.

 Be professional and polite.

 Ask leading questions that have “yes” and “no” answers. Avoid

asking “why.”

 Outline your main questions and the anticipated answers.

 Listen to the answers given by the witness. Do not get so

attached to your outline that you miss following up on some-

thing useful.

 Many trial attorneys prefer a system of organizing a folder or

trial binder section for each witness that includes all the

related exhibits and outline of questions.

 Motive-based defenses depend on excellent cross-examination

of the landlord.

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10. Direct exam of Defendant’s witnesses

 Witnesses you’ll likely want call

○ Your client: Jurors always want to hear from the defend-

ant. Practice at least twice with your client (for both direct

and cross). Most of your most important defense evidence

will come from your defendant.

○ Supportive witnesses (friends, neighbors): witnesses who

can give first hand accounts of the events that are the basis

of the notice or defense

○ Code enforcement officers: Certified copies of citations

are admissible, but in person testimony is usually better.

11. Closing Argument

a. Re-emphasize the case theme

b. Review the evidence and state the conclusions the jury should

draw from it.

c. Reiterate what you want from the jury.

12. Motion for directed verdict

a. Either Plaintiff or Defendant may move for a directed verdict

at the close of the evidence, per CCP § 630(a).

b. Similar to Motion for Nonsuit (like a demurrer)

c. May be made orally and without notice, outside the presence

of the jury

VERDICT

1. Three-fourths of jury must agree: concurrence of at least nine on a

12-member jury is required to render a general or special verdict.

(Cal. Const. Art. I, § 16; CCP § 618)

2. A special verdict may be requested prior to argument, and a special

verdict form proposed to record the jury’s findings on the ultimate

facts. (CRC 3.1580; CCP § 624)

3. Requesting use of a special verdict form is recommended, to enable

the tenant to shield future claims by the landlord, or appeal a judg-

ment if necessary.

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4. Polling the Jury: Either party may request to poll the jury to see

how jurors voted on the verdict.

5. Interviewing jurors after the trial is permissible and can be very

informative.

6. Statement of Decision

a. After a nonjury trial, and upon timely request, the court must

issue a “statement of decision” that includes findings of fact

and conclusions of law. (CCP § 632)

b. Having a statement of decision is essential to most unlawful

detainer appeals. If you even slightly suspect that an appeal

may be needed, make the request!

c. Written or verbal request on the record

d. Short trials: if concluded within one calendar day or in less

than eight hours over the course of more than one day, the

request must be made prior to submission of the matter for

decision.

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NOTES

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NOTES

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