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2009-04-01 18:37:19

What You Should Know: Evictions and the Right to a Jury Trial


For over 100 years, California’s Constitution has granted defendants in most lawsuits the right to a jury trial.  The California Constitution states in part, “Trial by jury is an inviolate right and shall be secured to all…”  This right extends to both residential and commercial tenants subject to an unlawful detainer action (eviction). 
Can this right be waived in the tenant’s lease or other document? Recent case law has clarified that a right to a jury trial cannot be waived before the lawsuit is filed. This means that jury trial waivers in both commercial and residential leases are not enforceable.
Using the jury trial as leverage
Unfortunately, some unscrupulous attorneys and tenants demand jury trials for the ulterior purpose of holding their landlord hostage to the legal system. Knowing that a jury trial typically takes much longer to set, and longer to try, and that it is therefore more expensive to prosecute, some tenant’s attorneys and eviction defense firms can, and do, use the demand of a jury trial as leverage to make unreasonable settlement demands.
They also know that a jury is much less predictable than an experienced judge, and that juries occasionally decide cases on misunderstandings, or what they think the law should be, but is not. Ironically, jury trials for evictions drive up legal costs for landlords, creating more pressure to raise rents, hurting the very tenants that legal defense centers claim to be helping.
Demanding jury trials on unlawful detainer actions is also a tremendous burden for the courts and ultimately the taxpayers who pay for them. Typically, unlawful detainer trials are heard by competent commissioners and judges who are familiar with the intricacies of landlord/tenant law. In a typical day, one court can hear as many as eight or more cases. On the other hand, a jury trial can take up an entire courtroom for several days. It is often difficult to find available court rooms to hear jury trials, and delays of up to several weeks can occur.
Free legal representation for the defendant
Once a residential unlawful detainer action is filed, court clerks are required to mail notices to defendant/tenants informing them that they may qualify for pro bono (free) representation along with contact information of legal aid and eviction defense firms.  Some of these firms, especially in the San Francisco Bay/Oakland area, demand jury trials on almost every case as a matter of course. 
So what can be done when a defendant/tenant demands a jury trial during the eviction process? The first thing to do is determine whether or not the defendant/tenant posted the required amount of jury fees, which is a condition of being granted a jury trial. However, if the defendant/tenant cannot afford to pay for a jury trial, they can request the court waive the fee based upon their financial status.
Summary judgments
The next step is to determine whether or not it is prudent to file a summary judgment motion. This motion would remove the need for a trial by jury as it alleges that there are no disputed issues of fact for a jury to decide and instead, the case can be decided by a judge on the basis of the law alone. If a summary judgment motion is not advisable, then a motion can be made requesting the court to limit the scope of the jury to a short, specific set of facts. If granted, this strategy can reduce the number of days of a jury trial as well as the risk of an undesirable decision based on extraneous evidence.
Attorney’s fees and costs
Attorney’s fees and costs are an important consideration when facing a jury trial. If the defendant/tenant is the prevailing party, the landlord is responsible for paying the tenant’s attorney’s fees and costs in addition to their own fees and costs.  Payment of “reasonable” fees and costs must be made even if the defendant qualified for free legal aid services and has not actually paid any attorney’s fees or costs. As a result, many landlords are limiting the amount of attorney’s fees to be awarded to the prevailing party through their lease. The limit is typically $500 to $1000.  
It is important to limit rather than remove the attorney’s fees and costs provision in your lease, since having an attorney’s fees clause may be important as a deterrent to otherwise litigious tenants, and also allows for recovery of fees and costs through the collection process.  In fact, many attorney’s fees and costs awards are more than 40% of the landlord’s total judgment in an unlawful detainer, and judgments carry a 10% interest rate until collected. Although the prevailing landlord will also be limited in the recovery of fees and costs, there is a benefit to preventing an unlimited fees and costs award in the event that the tenant is the prevailing party…especially in an expensive jury trial. 
Experienced representation
It is also very important to be represented by a firm or attorney who is experienced in conducting jury trials. Many attorneys have never tried a case in front of a jury and it takes an experienced attorney to know how best to represent their clients in what some have called “an art.”  If you are faced with a jury trial, make sure your attorney is experienced and skilled in conducting jury trials.
Settling the case
Should you settle?  There are other than just monetary considerations when deciding whether or not to take what seems to be an unreasonable offer of settlement. If you settle the case, you have certainty and you avoid the stress and anxiety that a trial can bring. You also save the time spent in preparation and in court. However, you may also end up with a tenant who is motivated to share the terms of the settlement with other tenants on your property and/or repeat the same actions with future landlords. Although the terms of the settlement can include confidentiality, it is difficult to enforce.  Finally, the attorney or eviction defense firm also learns that you are amenable to settlement offers from future defendant/tenants.
Kimball, Tirey & St. John LLP trial attorneys performed approximately 7,000 court and/or jury trials in 2008, and are seasoned experts in representing the firm’s clients in litigation.

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