Is the client an appealing/credible witness? If you have client control issues or if their credibility could be questionable in front of a jury.

Is the landlord an appealing/credible witness? It’s disappointing, but if the landlord doesn’t come off as a bad actor, they could garner the sympathy and votes of the jury.

Very technical defenses such as illegal rent increases over the span of many years, compliance with rent control statutes, etc. can sometimes be too convoluted for a jury to follow.

Example: Section 8 cases might hinge on technical defenses; you might have a better result in front of a judge rather than 12 jurors who might not be sympathetic to someone who is already receiving a government subsidy.

In cases with weaker defenses, counsel may be willing to agree to an alternate stipulated judgment for a “soft-landing” if you waive jury.

If fees are not capped and significant chance of judgment in landlord’s favor.

Financial concerns: Will your client miss a lot of work (i.e. income)? Can they get fired for asking for too much time off?

Fear: Many clients fear the judicial system, so much so that they would rather settle or have an expedited proceeding in front of a judge. “I just want to get it over with.”

If any of your witnesses refuse to appear voluntarily, they must be subpoenaed. The subpoena must be served at least 24 hours prior to the trial by someone who is over the age of 18 and not a party to the lawsuit. (CCP §1987(a)-(c))

It is also sometimes strategically wise to subpoena friendly witnesses.

If the witness requests, you must pay them a $35.00 witness fee when the subpoena is served, plus 20 cents per mile each way. (CCP §1987 (a)-(c))

No subpoena necessary for adverse party or agent, service of notice to appear is sufficient. (CCP §1987(b))

Some courts require preparation of a trial brief describing the case, the issues to be resolved, your client’s arguments, and points and authorities in support thereof.

Why you should prepare a trial brief:

Be prepared to submit additional briefing on specific issues as they arise during pre-trial discussions, motions in limine, jury instruction negotiations, etc.

■	Examples of common trial briefs to keep handy in non-payment cases: • Actual notice not required to assert a defense based on breach of the implied warrant of habitability. • Three-day notice overstates the amount of rent due because it includes illegal late fees (liquidated damages).

Special Jury Instructions

Some judges will require a full set of customized CACI instructions as opposed to a list of instructions to be used.

Study CACI’s and the accompanying instructions. Do not hesitate to supplement CACI instructions.

Craft carefully. Make sure all your defenses get in. Rank your defenses, list best defenses first, habitability last.

Plaintiffs attorneys rely heavily on motions in limine.

Common Plaintiffs motions in limine:

Common Defendant’s motions in limine:

Examples of other useful motions in limine to consider:

Especially if you do not have a court reporter.

Check with court clerk regarding specific exhibit labeling instructions.

Code of Civil Procedure §170.6 guarantees the right to exercise one peremptory challenge per case to the trial judge, which must be raised at the time of assignment. (CCP §170.6) If timely and properly raised it immediately disqualifies the assigned judge for general prejudice. No specific cause need be alleged or proved. (CCP §170.6)

Challenge must be timely. For cases assigned to trial under the master calendar system, a 170.6 challenge must be made in the master calendar department immediately upon trial assignment.

■	Cannot be raised after the case has been sent out to a trial department. (CCP §170.6(a)(2))
■	This rule applies where the parties personally appear before the court where the assignment is made.
■	Outside of the master calendar system, generally, a CCP §170.6 challenge may be raised any time before trial commences. (CCP 170.6(a)(2); People v. Sup.Ct. (Lavi) (1993) 4 C4th 1164, 1171, 17 CR2d 815, 817.)

Motion may be oral or written, without prior notice.

Tactical considerations, alienating judges

Courtroom schedule.

Time Estimates: A jury trial in a simple unlawful detainer action will usually take two to three days. Be sure not to underestimate the length your case will take. The judge will relay your representation to the jury and will not be pleased if you go over.

Who is paying for the jury? Make sure your client has paid jury fees or has an additional fee waiver on file.

Can any issues be narrowed by stipulation? Can parties stipulate to any facts?

What issues remain to be tried?

Order and estimated time for each witness.

Be prepared to explain what each witness will testify to/why they are necessary.

Avoid being duplicative.

Every judge has a unique jury selection procedure. Make sure you know exactly how things will proceed before the jurors arrive.

Some judges will give you a brief summary on how they conduct voir dire, what method of selection they use, how much you have for questions, and how they will handle challenges for cause.

Be prepared to have a strategy if the Court asks you about how to handle alternates, indicates they will limit attorney questions, and any hardship pleas from jurors

Remember that if you do not exercise your peremptory challenge then you accept the jury as paneled, you do not get a second chance!

Settlement on day of trial is common. Judge may urge parties to explore last-minute settlement possibilities.

Both sides must stipulate to settlement discussions with trial judge

Briefing/argument schedule

Request time to file opposition briefing.

Motions that do not comply with the applicable local rules are likely to be disregarded by the trial judge.

Can be made on day of trial, orally or in writing.

May have picked up case after Defendant already answered, or may opt to not demur and wait to bring motion on day of trial to leverage better settlement/get more time.

Examples: Failure to include language required by local ordinance or CCP §1161(2).

Motion to strike jury trial

Motion to strike second amended complaint

Motion to bifurcate issue of habitability

Scope: “trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of a particular case.’ (CRC 3.25(a)(1))

Craft questions that signal defense theories.

Avoid pitfalls: being boring, grandstanding (if you are talking more than the prospective jurors, you are talking too much).

Keep it conversational. You can use “polling” questions.

Think about keeping them on. No landlord wants to identify with a bad landlord.

Use questions to establish best practices for landlords in contrast to Plaintiffs actions. (e.g. How long does it take you to respond to tenant requests for repairs? Would you allow mold, rodents, etc. in your property?)

Does anyone have any strong opinions about immigrants in our community?

Language issues

What about immigrants who have become citizens, any problem with them working in our community and receiving public benefits to subsist?

Unlimited number of for cause challenges.

General disqualification (e.g. language)

Implied bias→ knowledge of facts or parties/enmity against or bias toward either party. (CCP §229)

Actual Bias→ “the existence of a state of mind on the part of the juror in reference to the case, or to any parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” (CCP §225)

Use indirect evidence to prove that landlord lacks a legitimate reason to evict a tenant:

Civil Code §1942.5(a): “If the lessor retaliates against the lessee because of the exercise by the lessee of his rights under this chapter or because of his complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of his rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following: (1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, or has made an oral complaint to the lessor regarding tenantability; (2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability; (3) After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice…” (CCP §1942.5(a))

Tenant has initial burden of producing evidence of the retaliation.

Tenant must offer evidence of each element:

An inference (rather than presumption) of prohibited retaliatory motive is then established. The landlord then has the burden of producing rebuttal evidence of their other good faith motive.

i.

Introduce your case theme, which will be a unifying thread throughout your trial presentation.

ii.

Outline the facts you intend to prove. This is the road map of the case that will help the jury anticipate and follow your trial presentation.

iii.

Say what you want from the jury.

iv.

Do not argue points of law or refer to inadmissible evidence.

i.

Outline your points and practice delivering your opening with minimal reference to your outline. Do not read from a written statement.

ii.

Use plain language and simple concepts, without being condescending. Avoid legalese. Practicing in front of non-lawyers can garner the best feedback.

iii.

Consider use of visuals such as diagrams and photos if your case is complicated or very visual.

iv.

Keep it short.

Landlord or property manager: to authenticate the lease and notice, testify to the breaching conduct, service of the notice, and continued occupancy by the defendants.

Complaining witnesses: neighbors with first hand knowledge of defendant’s conduct that breaches lease or creates a nuisance, “victims” of defendant’s conduct(e.g., “I live next door and I hear a dog barking in their apartment all day long.”)

Law enforcement: to confirm nuisance behavior or illegal conduct by tenants or guests, authenticate police report.

Your client: Jurors always want to hear from the defendant. Practice at least twice with your client (for both direct and cross). Most of your most important defense evidence will come from your defendant.

Supportive witnesses (friends, neighbors): witnesses who can give first hand accounts of the events that are the basis of the notice or defense

Code enforcement officers: Certified copies of citations are admissible, but in person testimony is usually better.