Litigation of Possession of Real Property & Unlawful Detainer In California

The Plaintiff (the bank in an unlawful detainer) must prove three issues, defendant is still in possession, defendant was properly served with three day notice to quit and plaintiff has a duly perfected security interest.

You can request a temporary restraining order or preliminary injunction either before the sale takes place or within the unlawful detainer; must be able to show a likelihood of success on the merits, exigent circumstances, and irreparable harm.

A temporary restraining order is a temporary stop to the sell of the house and a preliminary injunction is a permanent restraint from selling the house the entire duration of the litigation After the unlawful detainer complaint is filed then it must be personally served. Upon personal service or an order to post and mail the defendant (homeowner) defendant has 5 days to respond to the complaint. Unknown occupants who want to make a claim for possession my file and serve a prejudgment claim of possession within 10 days of service of the complaint.

If service of the complaint is not proper then the defendant’s may file a motion to quash. A motion to consolidate in a title action can also be filed to bring the title action and unlawful together putting a stop on the eviction (unlawful detainer). A bond may be required for such and/or a temporary restraining order or preliminary injunction.

Once defendants respond to the complaint via demur then the court will likely order defendants to answer within 5 days at the demur hearing. Once an answer is filed, Plaintiff’s will file a request for trial to be set. Defendant’s may file a counter request asking for a jury trial within 5 days of the original request to set the case for trial.

At trial if a judgment is rendered for Plaintiffs then defendants will have to appeal within 30 days and can file a motion to stay the judgment pending the appeal. If that is denied then defendant’s may take a writ to the order to deny the request for a stay. The writ is granted in many occasions.

Wedgewood v. Brown-Wilson: Court reversed a trial court because Plaintiff failed to provide duly perfected title as mandated by CCP Section 1161 and a trustee’s deed upon sale is not prima facie evidence of a duly perfected title contrary to previous holdings in the appellate division. Riverside – not published so persuasive case law.

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