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I've heard that in San Francisco, with a landlord that's not on top of his things, and a tenant who doesn't care about his credit report, it would be cheaper to withhold rent and pay a retainer instead of paying rent, and such a tenant will not be evicted if they select doing a jury trial.

Is there a way for a landlord in California to protect against such situation?

  • Can you clarify your preamble? Are you saying the eviction in CA is done by civil trial, and then suggesting that rent would be adequate to secure a defense attorney to fight eviction? – feetwet Jul 19 '15 at 2:49
  • @feetwet, I thought I already added a comment on this; basically, if there is an issue with the unit, and the tenant withholds rent because it wasn't addressed by the landlord, then if the jury agrees that X should have been withheld, then the whole UD suit fails, and tenant cannot be evicted (unless they fail to pay again, and are subject to another subsequent UD); plus, tenant's attorney fees might have to be covered by the landlord etc. – cnst Jul 19 '15 at 3:04
  • Your clarification doesn't sound as pernicious as the original question. As I understand it you're saying that: (1) A tenant asserts that a landlord has not met his lease obligations. (2) The tenant withholds rent until the issue is resolved. (3) If the landlord tries to evict the tenant the tenant fights the eviction in court. (4) If the tenant was correct he might get attorneys fees covered. Sounds like standard practice for any contract dispute. What sort of "protection" could exist against a contract dispute, except, perhaps, a binding arbitration clause? – feetwet Jul 19 '15 at 3:12
  • @feetwet, Well, the issue is, attorney fee coverage is generally standard for rental agreements; basically, the tenant could pay 2k to a lawyer, win the suit, have 2k returned; and disappear before the trial for the second UD, possibly saving some 6k in rent if they don't care about their credit. – cnst Jul 19 '15 at 3:19
  • If the tenant disappeared before trial, a default judgment would enter in the second case and the landlord could collect that from the tenant through garnishment, etc. just like any other judgment and including not just rent but attorneys' fees in the second action. More than a credit rating would be at stake. – ohwilleke Jan 7 '17 at 9:38
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Your question is not particularly clear, but it sounds like you're describing a situation where:

  • The tenant doesn't pay the rent
  • The landlord files an action to evict the tenant, and
  • The tenant files a request for a jury trial.

The act of filing for a jury trial doesn't guarantee that the tenant won't be evicted, but it will likely make the eviction process more time-consuming and expensive for the landlord.

I'm assuming the tenant is entitled to a jury trial--otherwise this would be useless as a stalling tactic. In that case, the question you really want answered is, can the landlord force the tenant to waive any right to a jury trial by contract, for example in the lease?

In California, the answer is no. The linked document suggests that you may be able to specify some form of ADR, which would avoid the expense of a jury trial, but the California courts won't let you get away with a straight jury trial waiver.

  • 1
    FWIW, the bar on pre-litigation jury waivers in CA leases remains exceptional and has not been widely copied by other states (it may be the only such state for all that I know) despite the suggestion in the linked source that other states might follow its lead. Also, some states treat eviction as preliminary relief to be decided by a judge, with a jury trial right, even if allowed, limited to the issue of damages once an eviction has been granted or denied by the judge. – ohwilleke Jan 7 '17 at 9:33

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