Delaying the lockout date for an eviction in California

Delaying the lockout date for an eviction in California is the topic of this blog post.  

Delaying the lockout date for an eviction in California can be requested by filing an ex-parte application for a stay of execution of the judgment.

A tenant facing eviction will often experience difficulty in finding another place to live and as a result they will suffer great hardship if they have to vacate within a short period of time. A stay of execution can allow a tenant more time to get their affairs in order provided that they can meet the requirements.

If you can make a good showing that you would suffer great hardship if the judgment were to be executed, and that the landlord will not suffer any further damage if a stay of execution is granted, then the Court will most likely grant at least a short stay.

Code of Civil Procedure § 918 states that, "(a) Subject to subdivision (b), the trial court may stay the enforcement of any judgment or order. (b) If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed. (c) This section applies whether or not an appeal will be taken from the judgment or order and whether or not a notice of appeal has been filed."

This means that the Court has the power to stay the enforcement of the judgment for a maximum of 40 days from the date that the judgment was entered, and/or the date that notice of entry of the judgment was given by the clerk, or another party to the action. Note that some courts have a policy of only granting a one week stay.

Note that in order to obtain the stay of execution you must show to the court that they are ready and able to pay rent as it falls due for the period during which execution is stayed. Otherwise the court will most likely not grant your application. Note that appellate courts have ruled that the trial court cannot require you to pay any back rent, only the rent that falls due for the period during which execution is stayed. I strongly recommend that a Cashiers Check or other certified funds be purchased in an amount sufficient to pay the rent for the entire period of the stay requested, made payable to the clerk of the court and submitted at the time of the ex-parte application for a stay of execution.

A California Court of Appeal has ruled in a published case that a stay of eviction may be conditioned on the payment of rent accruing during the period of the stay, but not on payment of the back rent.

Code of Civil Procedure § 1176(a) states in pertinent part that, "Stay of judgment shall be granted when the court finds that the moving party will suffer extreme hardship in the absence of a stay and that the nonmoving party will not be irreparably injured by its issuance."

The request for a stay of execution may be made ex-parte, a formal noticed motion is not required. However you still must notify the plaintiff or their attorney of your ex-parte application.

Normally, a party seeking an ex parte order in a civil case must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance (absent a showing of exceptional circumstances justifying shorter notice). In unlawful detainer proceedings, however, an ex parte applicant may give shorter notice "provided that the notice given is reasonable." See California Rule of Court 3.1203.

Attorneys or parties in the State of California who wish to view a portion of an 11 page sample ex-parte application for a stay of execution for an eviction judgment containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and declaration regarding ex-parte notice, and proposed order sold by the author can use the link shown below.

Sample Ex-Parte Application for Stay of Execution in California eviction by Stan Burman on Scribd


For more information regarding a California eviction document collection containing over 30 sample documents for eviction defense including a sample ex-parte application for stay of execution of an eviction judgment sold by the author use the link shown below.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.