Legal Question in Real Estate Law in California

real estate

I have an attorney handling an eviction for my client. The tenant didn't show up to court and my flight was delayed and I couldn't attend. The lawyer we have said the only thing he could do was get it post poned cause I wasn't there? My question is since he is representing us shouldn't he have been able to ask for a judgement against the tenant for not showing up or did I have to attend personally?

Asked on 6/13/08, 1:53 pm

4 Answers from Attorneys

Robert F. Cohen Law Office of Robert F. Cohen

Re: real estate

Your lawyer has to present evidence to the court. For instance, the lawyer would ask you under oath if the tenant is still in possession, if the tenant paid during the three day notice period, whether you accepted money from the tenant afterwards, etc. If the tenant had been present, the lawyer could have tried to get the answers from the tenant.

If you have a realtor or another person managing your property, you might be able to have the that person appear as your agent at the next trial if your attorney agrees that that's proper.

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Answered on 6/13/08, 2:01 pm

Carl Starrett Law Offices of Carl H. Starrett II

Re: real estate

From what you described, it sounded like the hearing was supposed to be the trial. Your attorney cannot simply show and request a judgment. Your attorney still needs to present evidence to the judge before issuing a verdict. Your attorney cannot testify on your behalf.

Landlords will often send property managers to testify on their behalf, but a continuance is about the only thing that your attorney could have done under the circumstances.

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Answered on 6/13/08, 2:12 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: real estate

A judge cannot make an order or render a judgment without some kind of record. Without evidence to support the claims of the complaint, the judge has no basis for making a decision. Your lawyer could, in theory, have been sworn in and given testimony. This rarely happens, partly because the lawyer is rarely a competent witness to the necessary facts, and also because the lawyer becoming a witness opens him or her up to cross-examination and loss of the attorney-client privilege against disclosure of confidences.

I'd say the lawyer did the right thing, and you're lucky you weren't subjected to sanctions for failing to appear where you were the plaintiff. A case can be dismissed due to a party's absence from the trial even if the party's attorney appears at the trial, unless the party's absence does not preclude the matter from proceeding that same day, and the party would have arrived by the time his or her presence as a witness was required. Cohen v. Hughes Markets, Inc. (1995) 36 Cal.App.4th 1693; Code of Civil Procedure section 581.

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Answered on 6/13/08, 2:50 pm
Mitchell Roth MW Roth, Professional Law Corporation

Re: real estate

No. He had to prove up a case and needed a competent witness.

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Answered on 6/21/08, 6:04 pm

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