Legal Question in Landlord & Tenant Law in California

Re: invoking civil right to request judicial hearing

There are 2 types of tenancies: tenancy at will and tenancy by contract. A tenancy at will is created when the person with a lawful right of possession allows another person to reside there. A tanancy by contract is created when a person with a lawful right of possession enters into a contract to allow another person to reside on the premises in exchange for rent or something of value.

You indicate the house was sold at a foreclosure. The procedure to be followed by the new owner is to serve a 30 day notice to vacate on all unknown tenants and occupants on the premises. Then the new owner will file an unlawful detainer complaint and serve it on a person over 18 at the premises.

As the new owner has no way of knowing the names of unknown occupants and tenants, he need not name them in the complaint. Instead, the complaint will usually have a document attached to it called a "prejudgment claim of right to possession."

If no prejudgment claim of right to possession is filed with the court before a default or judgment is entered, then the new owner may send the sheriff out to lock out everyone on the premises. Once the lockout happens, anyone who enters the premises may be arrested for trespass.

Sometimes, the new owner messes up and fails to serve the prejudgment claim of right to possession form. When and only when this happens, a tenant may wait until the day the Sheriff shows up for the lockout and hand the Sheriff a form called: "Claim of Right to Possession."

So, unless there is some procedural error involved in this case, your friend very well could be arrested for trespass. In order for me to properly evaluate this case, I would need to see the complaint filed in this case and would need your friend to pull the entire court file for my review.

Note that if a prejudgment claim of right to possesion was served on someone, but your friend was never served and never saw it, you have what is known as a loophole in the law. There is no procedure in place for your friend to make a claim of possession with the court. He cannot file a motion to vacate the judgment because he is not a party. He cannot request a hardship extension because he is not a party.

Your friend would have to file a preliminary writ of mandamus or a complaint in intervention with the court and seek emergency relief. Your friend's attorney fees would exceed $5,000 for this process; and the outcome is unpredictable. And I would be curious why your friend would be paying $5,000 to reside one place when he could put better use to the money and just move.

Re: invoking civil right to request judicial hearing

As the lawyer mentioned who told you that you watched too much t.v., it was to say that you couldn't just go before a judge.

I can't improve on Mr. McCoy's answer.