Ex Parte filed by my tenant right before lockout in eviction case

[James Qiu]

So my long and draining exercise of evicting my tenant is about to finish (or so I thought), after the deputy has scheduled the lockout. Today I got a call and text message from my tenant that she filed an Ex Parte application for an emergency hearing to determine whether to "stay the lockout". So far I have not heard from the Sheriff department to reschedule the lockout. My question is that without any Court order to delay the lockout or Writ of Procession, should I go through with the lockout? I don't see the reason not to, since the last Court order to the Sheriff department was to lockout. Anyone has any experience in similar situation? In the Ex Parte, she stated that she has nowhere to go and has cancer (she never mentioned to me before now), and she never received eviction paper works from me, but I have videos and pictures when she was severed and text messages where she admitted been severed.

[Account Closed]

Quote from @James Qiu:

Quote from @Account Closed:

A tenant that even knows what an ex parte filing is, is not normal. She either has been through this before or is being coached. Is she pro se (no lawyer)? 
All ex parte means is that she is asking the judge to make a decision without notifying you. It's odd that she notified you, so I'm assuming she is trying to do this on her own and saw a late night rerun of Perry Mason and thought this might work. It's pretty rare to have that approved, especially after an order has already been signed. I'd proceed with the eviction until a judge signed an order to stop, which is not likely.

Hi Mike,

Thank you for the insight. By your reasoning of ex parte, it does not sound like I'm required to attend the hearing. But since she has informed me of the hearing, should I attend the hearing to present my evidence and defend myself? What's the pros and cons to be at the hearing? FYI, she did write "in pro per" which is same as "pro se". Also original Judgement was entered by default, so it was signed by a clerk not a judge.

Thanks again!

A default judgment is sometimes overturned if it wasn't properly heard by the court. If the property is in California, anything goes.

I'd show up with all my evidence. Pro per/Pro se same thing. She’s representing herself. She may not show up to the hearing. I'd argue that she had been properly notified, had her chance in court and failed to appear. Make it a point to say she has not paid rent since (whatever date). A normal judge will ask the tenant if they made all of the payments. Then they will ask for proof they made whatever payments they claim they made. But again, you’re in California, so who really knows what direction things will take. She will make all kinds of comments and appeals to the judge, but unless she has paid all rent, it won't matter what she says. Don't get into an argument with her. Speak only to the judge when he addresses you. He's seen it all before, day in and day out for years. :-)

You want to ask for a judgment in the amount owed and you have to have that tallied up by type, amount and date like “Rent - Aug 2023 - $3500”, etc with a total. Then you have to include whatever you have in terms of late rent statements to prove your claim. Be careful though, if the amount owed exceeds the small claims amount for California, he may send it to Superior Court and you certainly don't want that.

Starting November 1, 2021, you can sue or be sued for COVID-19 rental debt in small claims. If you are suing a tenant for COVID-19 rental debt, you can sue for more than $10,000.

https://selfhelp.courts.ca.gov/small-claims-california

If she claims or can prove she was in the hospital for cancer treatment, the judge might grant a temporary stay. I'm not familiar with the particular judge or court but sometimes you can present the exhibits a day or two prior to the hearing for the judge to review.

He won't look at them until the hearing but it shows you're on top of things. I'd also have a copy with me in case he left them in chambers or at the lunch counter, etc. He will want to see proof that each step of the eviction was done properly according to local rules.