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Ask the County Law Librarian–how do I get rid of my abusive son, who refuses to leave home?



SacCountyPublicLawLibraryLOGOQ. A few months ago, I let my son move back into my home when he lost his job. It was supposed to be temporary while he looked for work. He’s not doing that, and he’s becoming abusive toward me and my husband. We want him to move out, and told him that, but he says we can’t make him leave. Is there anything we can do? -Fran

A. According to the California Landlord’s Law Book: Evictions, by Nolo Press, a respected publisher of easy-to-read, “plain English,” legal self-help books, you may serve a “lodger” of less than a year with a 30-day notice by certified or registered mail, restricted delivery, with a return receipt requested; if the lodger doesn’t leave by the end of the notice period, he or she is guilty of an infraction. Technically, this entitles you to do a citizen’s arrest, which means that you can eject the lodger using reasonable, but not deadly, force (see California Penal Code §§ 602.3; 837), however; we strongly advise against this tactic, and instead suggest calling local law enforcement to handle the situation.

The California Civil Code § 1946.5(c) defines a “lodger” as “a person contracting with the owner of a dwelling unit for a room or room and board within the dwelling unit personally occupied by the owner, where the owner retains a right of access to all areas of the dwelling unit occupied by the lodger and has overall control of the dwelling unit.”

It sounds like your (probably oral?) “contract” with your son might be that you would provide room and board for free while he looked for a job, and if he either stopped looking or found a job, he would either pay rent or move out.  If that is so, it sounds like he may have violated the rental agreement and you can legally evict him.

Unfortunately, however, many local police do not know the procedures for evicting lodgers or may not want to get involved, fearing potential liability for improperly evicting a tenant. My understanding is that the Sacramento Police Department is among those, and may insist that you go through the normal unlawful detainer lawsuit process—which will result in a court order authorizing the police or sheriff to evict your son.

You can read the section of California Landlord’s Law Book: Evictions on lodgers (page 1-13) on any computer (in the Law Library or at home) via the Legal Information Reference Center. Instructions for access are available on our website at http://www.saclaw.org/pages/nolo-ebooks.aspx.

If you still want to evict your son “for cause”—that is, for failing to pay the rent or violation of the rental agreement—you can serve him with a three-day notice, but if he doesn’t leave you will have to go through an unlawful detainer lawsuit process.  You cannot just hand your copy of the three-day notice to the local police and ask them to remove your son. The unlawful detainer process is described, along with further research references, on the “Evictions” Legal Research Guide on our website at http://www.saclaw.org/pages/evictions.aspx.

The Unlawful Detainer Advisory Clinic on the third floor of the Carol Miller Justice Center on 301 Bicentennial Circle, which is open Monday through Friday from 8:00 a.m. to 12:00 p.m. and 1:00 p.m. to 4:00 p.m., can help you by explaining all of your options and by helping you in filling out a complaint, preparing your case for trial, etc.  The Clinic is walk-in only, first come-first served.

If neither party is represented by an attorney in an eviction case, the judge will refer you to mediation on the date of your hearing. You and the other party will meet with a mediator in the hallway, who will explain that mediation is both voluntary and confidential, and does not jeopardize either party’s ability to have a hearing—at any point either one of you can say mediation is not working for you and you would like to request a hearing. In that case both parties will return to the courtroom and wait until the judge is ready to hear your case.

The mediator does not make judgments and typically does not even look at the parties’ evidence. Rather, the mediation process focuses on what the parties can agree to do to make life peaceful in the future. The goal of mediation is to reach an agreement, which can include a restraining order. The mediated agreement is an enforceable stipulated judgment; the unlawful detainer case is dismissed. If the tenant violates the terms of the stipulated judgment, the landlord can re-file the unlawful detainer case.

Of course, you could skip court altogether and go straight to mediation. The Sacramento Mediation Center charges fees on a sliding scale according to income.

Finally, please, if you are being abused, consult one of the community resources listed on our “Protection from Abuse” or “Senior, Disabled, and Health Law” pages on our website, at http://www.saclaw.org/pages/protection-topic.aspx and http://www.saclaw.org/pages/senior-disabled-topic.aspx, respectively. These organizations can help you obtain a Domestic Violence Restraining Order, which could prevent your son from coming near you for up to five years.

Good luck!

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday’s column. Even if your question isn’t selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org