What happens during your trial for unlawful detainer (eviction)?

In a typical trial for unlawful detainer, the landlord must establish the elements of her case. These elements include the existence of the landlord-tenant relationship, termination of the relationship, i.e., by properly serving a Three-Day Notice to the tenant, and the tenant being in possession of the premises after the notice expired.

If the trial is for nonpayment of rent, then the landlord has the burden of proving that rent was due and it was not paid. If there is an oral lease, then the landlord must prove the amount of rent due by her records. A tenant can defend an eviction for nonpayment if the landlord is claiming that the rent is more than one year overdue.

If there is a clause in the lease that the prevailing party at trial will pay attorneys fees, then if the tenant prevails, he can make a motion to obtain his attorneys’ fees and court costs from the landlord. If there is no prevailing party clause, then if the tenant is successful at trial, he would be entitled to claim only certain statutory costs in the action. These costs include filing, jury and witness fees. Expert witness fees are not recoverable as costs unless the expert was ordered by the court.

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Mary Catherine Wiederhold

Tenant Attorney
1458 Sutter Street
San Francisco, CA 94109

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