Before appearing in court, you must carefully prepare your case, just as an attorney would. Among other things, you should:
- Be mindful that when you have been served with the summons and complaint, you have five days in which to file an answer. You should carefully read the summons, which will have very specific information on how to answer the complaint and the strict time lines.
- Talk with a housing clinic, tenant organization, attorney, or legal aid organization. This will help you understand the legal issues in your case and the evidence that you will need.
- Request discovery of the evidence that may be helpful to your case or to preparing a defense.
- Decide how you will present the facts that support your side of the case—whether by witnesses, letters, other documents, photographs or video, or other evidence.
- Have at least five copies of all documents that you intend to use as evidence—an original for the judge, a copy for the court clerk, a copy for the opposing party, a copy for yourself, and copies for your witnesses.
- Ask witnesses who will help your case to testify at the trial. You can subpoena a witness who will not testify voluntarily. A subpoena is an order from the court for a witness to appear. The subpoena must be served on (handed to) the witness, and can be served by anyone but you who is over the age of 18. You can obtain a subpoena from the Clerk of Court. You must pay witness fees at the time the subpoena is served on the witness, if the witness requests them.
The parties to an unlawful detainer lawsuit have the right to a jury trial, and either party can request one.317 After you have filed your answer to the landlord’s complaint, usually the landlord will file a document called a Memorandum to Set Case for Trial (officially called a “Request/ Counter-Request to Set Case for Trial” form (Judicial Council Form UD-150).)318 This document will indicate whether the plaintiff (landlord) has requested a jury trial. If not, and if you are not represented by a lawyer, tenant advisers usually recommend that you not request a jury trial.
There are several good reasons for this recommendation: first, presenting a case to a jury is more complex than presenting a case to a judge, and a non lawyer representing himself or herself may find it very difficult; second, the party requesting a jury trial will be responsible for depositing the initial cost of jury fees with the court; and third, the losing party will have to pay all of the jury costs.319
317 The lease or rental agreement cannot require that the tenant waive the right to a jury trial before a dispute arises. However, the lease or rental agreement can require that any dispute that arises be submitted to arbitration. (Grafton Partners LP v. Superior Court (PricewaterhouseCoopers LLP (2005) 36 Cal.4th 944 [32 Cal.Rptr.3d 5].)
318 In some counties, the court will set the trial automatically; in others, the landlord must file the Request to Set Case for Trial form. Moskovitz, California Eviction Defense Manual, Section 25.1 (Cal. Cont. Ed. Bar 2008).
319 See Portman and Brown, California Tenants’ Rights, pages 291-293 (NOLO Press 2007).