Can you ask for more time once a judgement has been granted to vacate a property.
Full Question:
Can you ask for more time once a judgement has been granted to vacate a property.
08/21/2007 |
Category: Judgments |
State: California |
#8111
Answer:
The following are CA statutes:
1176.(a) An appeal taken by the defendant shall not automatically
stay proceedings upon the judgment. Petition for stay of the
judgment pending appeal shall first be directed to the judge before
whom it was rendered. Stay of judgment shall be granted when the
court finds that the moving party will suffer extreme hardship in the
absence of a stay and that the nonmoving party will not be
irreparably injured by its issuance. If the stay is denied by the
trial court, the defendant may forthwith file a petition for an
extraordinary writ with the appropriate appeals court. If the trial
or appellate court stays enforcement of the judgment, the court may
condition the stay on whatever conditions the court deems just, but
in any case it shall order the payment of the reasonable monthly
rental value to the court monthly in advance as rent would otherwise
become due as a condition of issuing the stay of enforcement. As
used in this subdivision, "reasonable rental value" means the
contract rent unless the rental value has been modified by the trial
court in which case that modified rental value shall be used.
(b) A new cause of action on the same agreement for the rental of
real property shall not be barred because of an appeal by any party.
1174.25.
(a) Any occupant who is served with a prejudgment claim of
right to possession in accordance with Section 415.46 may file a
claim as prescribed in Section 415.46, with the court within 10 days
of the date of service of the prejudgment claim to right of
possession as shown on the return of service, which period shall
include Saturday and Sunday but excluding all other judicial
holidays. If the last day for filing the claim falls on a Saturday or
Sunday, the filing period shall be extended to and including the
next court day. Filing the prejudgment claim of right to possession
shall constitute a general appearance for which a fee shall be
collected as provided in Section 70614 of the Government Code.
Section 68511.3 of the Government Code applies to the prejudgment
claim of right to possession.
(b) At the time of filing, the claimant shall be added as a
defendant in the action for unlawful detainer and the clerk shall
notify the plaintiff that the claimant has been added as a defendant
in the action by mailing a copy of the claim filed with the court to
the plaintiff with a notation so indicating. The claimant shall
answer or otherwise respond to the summons and complaint within five
days, including Saturdays and Sundays but excluding all other
judicial holidays, after filing the prejudgment claim of possession.
Thereafter, the name of the claimant shall be added to any pleading,
filing or form filed in the action for unlawful detainer.
1174.3.
(a) Unless a prejudgment claim of right to possession has
been served upon occupants in accordance with Section 415.46, any
occupant not named in the judgment for possession who occupied the
premises on the date of the filing of the action may object to
enforcement of the judgment against that occupant by filing a claim
of right to possession as prescribed in this section. A claim of
right to possession may be filed at any time after service or posting
of the writ of possession pursuant to subdivision (a) or (b) of
Section 715.020, up to and including the time at which the levying
officer returns to effect the eviction of those named in the judgment
of possession. Filing the claim of right to possession shall
constitute a general appearance for which a fee shall be collected as
provided in Section 70614 of the Government Code. Section 68511.3 of
the Government Code applies to the claim of right to possession. An
occupant or tenant who is named in the action shall not be required
to file a claim of right to possession to protect that occupant's
right to possession of the premises.
(b) The court issuing the writ of possession of real property
shall set a date or dates when the court will hold a hearing to
determine the validity of objections to enforcement of the judgment
specified in subdivision (a). An occupant of the real property for
which the writ is issued may make an objection to eviction to the
levying officer at the office of the levying officer or at the
premises at the time of the eviction.
If a claim of right to possession is completed and presented to
the sheriff, marshal, or other levying officer, the officer shall
forthwith (1) stop the eviction of occupants at the premises, and (2)
provide a receipt or copy of the completed claim of right of
possession to the claimant indicating the date and time the completed
form was received, and (3) deliver the original completed claim of
right to possession to the court issuing the writ of possession of
real property.
(c) A claim of right to possession is effected by any of the
following:
(1) Presenting a completed claim form in person with
identification to the sheriff, marshal, or other levying officer as
prescribed in this section, and delivering to the court within two
court days after its presentation, an amount equal to 15 days' rent
together with the appropriate fee or form for proceeding in forma
pauperis. Upon receipt of a claim of right to possession, the
sheriff, marshal, or other levying officer shall indicate thereon the
date and time of its receipt and forthwith deliver the original to
the issuing court and a receipt or copy of the claim to the claimant
and notify the plaintiff of that fact. Immediately upon receipt of an
amount equal to 15 days' rent and the appropriate fee or form for
proceeding in forma pauperis, the court shall file the claim of right
to possession and serve an endorsed copy with the notice of the
hearing date on the plaintiff and the claimant by first-class mail.
The court issuing the writ of possession shall set and hold a hearing
on the claim not less than five nor more than 15 days after the
claim is filed with the court.
(2) Presenting a completed claim form in person with
identification to the sheriff, marshal, or other levying officer as
prescribed in this section, and delivering to the court within two
court days after its presentation, the appropriate fee or form for
proceeding in forma pauperis without delivering the amount equivalent
to 15 days' rent. In this case, the court shall immediately set a
hearing on the claim to be held on the fifth day after the filing is
completed. The court shall notify the claimant of the hearing date at
the time the claimant completes the filing by delivering to the
court the appropriate fee or form for proceeding in forma pauperis,
and shall notify the plaintiff of the hearing date by first-class
mail. Upon receipt of a claim of right to possession, the sheriff,
marshal, or other levying officer shall indicate thereon the date and
time of its receipt and forthwith deliver the original to the
issuing court and a receipt or copy of the claim to the claimant and
notify the plaintiff of that fact.
(d) At the hearing, the court shall determine whether there is a
valid claim of possession by the claimant who filed the claim, and
the court shall consider all evidence produced at the hearing,
including, but not limited to, the information set forth in the
claim. The court may determine the claim to be valid or invalid based
upon the evidence presented at the hearing. The court shall
determine the claim to be invalid if the court determines that the
claimant is an invitee, licensee, guest, or trespasser. If the court
determines the claim is invalid, the court shall order the return to
the claimant of the amount of the 15 days' rent paid by the claimant,
if that amount was paid pursuant to paragraph (1) or (3) of
subdivision (c), less a pro rata amount for each day that enforcement
of the judgment was delayed by reason of making the claim of right
to possession, which pro rata amount shall be paid to the landlord.
If the court determines the claim is valid, the amount equal to 15
days' rent paid by the claimant shall be returned immediately to the
claimant.
(e) If, upon hearing, the court determines that the claim is
valid, then the court shall order further proceedings as follows:
(1) If the unlawful detainer is based upon a curable breach, and
the claimant was not previously served with a proper notice, if any
notice is required, then the required notice may at the plaintiff's
discretion be served on the claimant at the hearing or thereafter. If
the claimant does not cure the breach within the required time, then
a supplemental complaint may be filed and served on the claimant as
defendant if the plaintiff proceeds against the claimant in the same
action. For the purposes of this section only, service of the
required notice, if any notice is required, and of the supplemental
complaint may be made by first-class mail addressed to the claimant
at the subject premises or upon his or her attorney of record and, in
either case, Section 1013 shall otherwise apply. Further proceedings
on the merits of the claimant's continued right to possession after
service of the Summons and Supplemental Complaint as prescribed by
this subdivision shall be conducted pursuant to this chapter.
(2) In all other cases, the court shall deem the unlawful detainer
Summons and Complaint to be amended on their faces to include the
claimant as defendant, service of the Summons and Complaint, as thus
amended, may at the plaintiff's discretion be made at the hearing or
thereafter, and the claimant thus named and served as a defendant in
the action shall answer or otherwise respond within five days
thereafter.
(f) If a claim is made without delivery to the court of the
appropriate filing fee or a form for proceeding in forma pauperis, as
prescribed in this section, the claim shall be immediately deemed
denied and the court shall so order. Upon the denial of the claim,
the court shall immediately deliver an endorsed copy of the order to
the levying officer and shall serve an endorsed copy of the order on
the plaintiff and claimant by first-class mail.
(g) If the claim of right to possession is denied pursuant to
subdivision (f), or if the claimant fails to appear at the hearing
or, upon hearing, if the court determines that there are no valid
claims, or if the claimant does not prevail at a trial on the merits
of the unlawful detainer action, the court shall order the levying
officer to proceed with enforcement of the original writ of
possession of real property as deemed amended to include the
claimant, which shall be effected within a reasonable time not to
exceed five days. Upon receipt of the court's order, the levying
officer shall enforce the writ of possession of real property against
any occupant or occupants.