Legal Question in Landlord & Tenant Law in California
Can I clarify on this?
My additional information/ follow up:
First of all, I am dealing with the attorney that works for a newly hired mgmt company, not directly with the landlord.
My rent is 775.00/month ($9,300.00/year)
I have paid ALL rent due for the past year - I do not owe anything.
The Notices/ Unlawful Detainer Complaints:
1st 3 Day Pay or Quit was for one year rent ($9,300.00), dates March 1, 2009 - March 1, 2010. (served 03/16)
1st UD Complaint "amended" the amount due to $14,010.00. (served 03/23)
2nd 3 Day Pay or Quit demanded $3,100.00, no dates given (served May 26, the same day I filed for a court date on 1st one).
The additional demand in this notice that is referred to in my first question is this:
"In other to avoid the filing of a nevv unlawful detainer proceeding, you
must do one of the following three options within the three- day period of time allowed by this notice to pay rent or quit: (1) execute a written settlement of the unlawful detainer proceeding which has remained pending: (2) pay the rent demanded in this notice; or (3) vacate the premises"
It also says that the $3,100.00 is an "intentional understatement" of the total amount due, and if I pay it, my landlord does not intent to waive any portion of the "remaining balance due", or to be estopped from collecting, "be it by subsequent notices to pay rent or quit or otherwise".
2nd UD Complaint "amends" the amount due to $8,910.00 (have only received "courtesy copy" so far, haven't been served)
I want to push the first UD to trial because I do NOT owe anything, and because the landlord's attorney let it sit so long (past 60 days), it will blacklist me as a renter and possibly mess with my credit. I want a judgment on it. I also want to collect my court fees, which can only come with a judgment.
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My question was:
Can a landlord serve a second 3 Day Pay or Quit notice on a tenant while the first one is still active?
The first one has already gone past the tenant's Answer and tenant's request for a court date, and has not been dismissed.
Related Question: Assuming the 2nd Notice is valid, can it demand the tenant to make a settlement on the first notice? Wouldn't that be akin to trying to coerce the tenant to not exercise their right to trial?
The answer given:
A new three day notice can be given for each separate and/or new breach of the lease. A court would probably consolidate all into a single trial. I do not know why you asked for the court date as the landlord can not evict you until they have a judgment so it is normally to the tenants interest to delay having a court appearance. Since you do not quote the "demand to make a settlement on the first notice" I do not know what the nature of the demand is, but in general the landlord can demand that you resolve the disputes of the first notice [especially if the landlord has basically reserved the first notice because of some feared defect in it or service] but if it is worded so that the demands of the first notice are repeated it might be considered that the first notice is rescinded so there should be no hearing on it a instead it would be part of the 2nd three day notice. Ask the landlord what his intention is and to drop the first complaint if he does not intent to try the first notice.
George Shers
Law Offices of Georges H. Shers
4170 Glenwood Terrace, Suite #1
Union City, CA 94587
2 Answers from Attorneys
The new information helps.
My prior answers still hold. There is nothing legally improper about the second notice, but since it does not tell you what dates the claimed rent is for and then gives you inconsistent options [you can avoid eviction by paying $3,100 or $9,300; which sum ar eyou to pay, in a three day notice it must be made clear to a tenant what they exactly must do in order to avoid eviction, but that is not stated in this notice]. The lack of clarity of the second notices probably makes the first unclear an defective, but the statement that they reserve the right to sue for more damages in the future as to the same period covered by the three day notice means everything is totally confused. How are you supposed to know what rent is claimed owed for what period of time; paying the rent they owe does not mean they will not claim you still owe rent so the three day notice is fatally vague and confusing.
Your going to court wil not necessarily resolve the issue of no rent being owed. Most judges would look at both notices and the pleadings, ask you if you understand how much you are supposed to pay, and then dismiss with prejudice both cases for vagueness. I would consider writing the landlord's attorney and point out that you have proof of paying your rent, the landlord has bad records and no proof of rent not being paid, the notices and complaint are legally improper, and if it goes to trial everything will be dismissed but you will be awarded costs and then will sue for intentional/negligent infliction of emotional distress against the landlord, management company, and him, as they al knew better and have caused you great strain. A jury will be delighted to stick it to the three of them, especially an attorney. How is he going to keep all rents off the jury panel? you also want a written letter of apology stating that their is no evidence you did not pay your rent and you claim you did, the litigation should not be used to effect your credit rating, etc. If you do not receive a postive response within 7 calendar days your demand will then increase to the payment of money to you.
Good luck.
I'm with Sher's on everything except the infliction of emotional distress. Proof of damages in emotional distress cases is tough. Without therapy and testimony from psychologists you will be very unlikely to get to a jury. However, this conduct definitely smells to me of abuse of process.
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