Legal Question in Landlord & Tenant Law in California

Re: Tenant desperately seeks advice RE: Unlawful Detainer suit!

Sadly, there is likely little to do but pack.

First, you are not entitled to rely upon information from the clerk. Besides, the tenant (T)knows when he/she was served. It makes no difference that the landlord (LL) didn't file the proof of service (POS) quickly. The rules are the rules -- a responsive pleading is due filed within five days of service of an unlawful detainer. Even if the LL had not filed the POS, that doesn't mean that the T doesn't have to respond to the complaint. Under these facts, a default was rightfully requested.

Second, it is true that LL cannot obtain entry of "default" as well as a "default judgment for money" at the same time. BUT -- LL clearly can obtain "entry of default" and "default judgment for possession only" at the same time. In fact, this is done routinely. (Filing a POS "late" doesn't mean that the T gets additional time to respond. Whoever is giving T this advise has no idea what they are talking about).

Third, what does T mean when T needs to "find someone to sign proof of service on Plantiff." This doesn't make any sense. T is not serving Plaintiff with anything other than a copy of T's responsive pleading, which is serve by mail only.

Fourth, missing your hearing on the motion to vacate default is practically inexcusable. Regardless of the reason, the court will not likely consider letting you file again. Here's why -- the only way to get the court to reconsider it's denial of your 473 motion (aka "motion to set aside default") is to seek reconsideration. (You cannot simply file another motion because you missed the date). The requirements are exceedingly strict. Too many issues to discuss here in such short space. (Also know that the T's defenses to the case are compeletely irrelevant at this point -- the only issue is whether or not the default should be set aside.)

Finally, because the sheriff is already knocking at your door, you need to move extremely fast and seek an order staying execution of the judgment. There may not even be time.

Not knowing the timing of any of the facts and events in your situation, I cannot accurately assess whether you have even the possibility of success on continuing to litigate these issues. I will need to know specific dates of these events before determining how you should proceed. You should definitely get an attorney's opinion about where to go with this, if anywhere.

Re: Tenant desperately seeks advice RE: Unlawful Detainer suit!

You may file another 473 motion to vacate judgment and quash writ, but the chances of the court hearing the motion are slim. If you failed to appear at your first 473 motion the court has the option to allow the motion to be reheard, but only on good cause. That is solely at the courts discretion.