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Help (unlawful detainer case)

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  • Help (unlawful detainer case)

    In an unlawful detainer case in accordance with CCP § 367, every action must be prosecuted in the name of the real party in interest; CCP §1161(1) only proper plaintiff may bring the action and CC §2322 an agent cannot sue in their own name am I wrong in believing that a property manager who has no interest in the property is not allowed to sue as the plaintiff?

    A demurrer was filed on these grounds and was denied where do you go from here?

    Discovery is shortened in an unlawful detainer to 5 days to return responses. Two motions to compel answers to interrogatories were filed, two services, personal and by mail, were made on the opposing party and since the date of service it has been 28 days. The judge is not requiring the answers to be served until the court date. What can be done to push up the delivery date so a person can at least get the time to review them otherwise what is the purpose of interrogatories?

  • #2
    Re: Help (unlawful detainer case)

    When a law states that only a "proper party" can file suit, you must get a definition of a proper party. Everyone knows the owner can file suit. In all states, an attorney is also allowed to file suit, even though he has no interest in the property. He is a hired representative of the owner. In some states, other hired representatives, such as agents or property managers, are also allowed to file suit. Since the demurrer and the request to dismiss on this basis was denied, your area must allow other representatives to file on behalf of the owner as his or her agent. It could also be that the agent has a POA (power of attorney) that would allow him or her to act on behalf of the owner. This was denied, so the agent must be allowed to represent the owner. You will have to find other grounds for dismissal.

    If the judge has ruled that the answers do not have to be filed until the court hearing, there is little you can do. You could ask for more time when the hearing comes so you can prepare a defense to the answers. Ask to have the hearing rescheduled or postponed. But I wouldn't count on it being granted. Most UD cases are so simple that there really is no defense to the answers. For instance, if the UD is for non-payment, you have no defense if you didn't pay (no matter what the circumstances). If it is for lease violations and the plaintiff shows just cause to prove the violations in the answer, you can't defend those violations.

    There just isn't much you can do here. And since the UD has already been filed in court, it is already a part of your court records. Sorry.


    • #3
      Re: Help (unlawful detainer case)

      No this is not a state that allows a manager to bring suit. CCP 1161(1) states only the proper plaintiff, the landlord or successor in estate may bring action. CC 2322 states an agent, such as the property manager, cannot sue in his or her own name even if the agent has been given a power of attorney. This is reiterated in the California Judges Bench Guide section 31.13. And no the property manager does not have an attorney. Besides that I thought in the event of the property title being in a trust the owner had to be represented by an attorney.

      As for this being a shut and close case, I would not be going to these extremes if it was that easy. I sued the manager in August (and prevailed) in September I received a 60 day termination to which the owner said I would be out because I sued the manager. I DID NOTHING WRONG other than stand up for my Constitutional rights. So there is no late rent , no lease violations, nothing.So your words of encouragement did nothing at all to aid me.

      Thank you!


      • #4
        Re: Help (unlawful detainer case)

        You were given a 60 day notice to vacate on a m2m tenancy and failed to move? Unless you are under rent control, you have no choice but to move out or be evicted. No reason is needed to terminate a m2m tenancy. Start packing.


        • #5
          Re: Help (unlawful detainer case)

          You obviously missed the part where I said I had previously sued the manager and won. I agree with you in respect to there being no way out of a 60 day other than move, BUT, I received the 60 day as a RETALIATORY act and why should I be pushed out just because I was being harrassed by the manager and after repeated requests to stop I sued. Now back to the questions at hand- AND

          Can anyone tell me how to switch courts in the same county? From city to city.


          • #6
            Re: Help (unlawful detainer case)

            To switch courts you need to petition for a change of venue. Don't bet on it being granted. This is only done in extreme cases or when the judge is not a disinterested party (he has a vested interest in the case or it is a conflict of interest for him). It is rarely ever granted. Evictions are heard in usually only one court.


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