Don’t Settle, Stipulate

Eviction Stipulations

Understanding Eviction Stipulations in Eviction Proceedings

What is a Stipulation for Entry of Judgment?

Eviction Stipulations A Stipulation for Entry of Judgment (“Stipulation”) is an agreement between opposing parties regarding a dispute before the court. Parties can agree to resolve any issue that needs a decision in a Stipulation.

For example, anytime during the evictions process, parties can stipulate to any issue raised, including, but not limited to, which party is deemed the “winner” of the case, the amount of rent owed and to be paid, if attorney fees and costs are to be paid and by whom, and who will retain possession of the property.

is a stipulation different from a settlement?

Stipulations are similar to settlements in that both are agreements to resolve issues. However, stipulations are different from settlements because stipulations are official document that, when signed, has the same full effect of a court rendered judgment on the matter. They become an “order” of the court, which means that if one party does not perform as agreed, the opposing party can petition the court to enforce the stipulation.

On the other hand, if a party breaches a settlement, the opposing party will have to file a new lawsuit for breach of the settlement contract, or if the court has continuing jurisdiction under CCP §664.6, present evidence of a breach before the judge in the case to decide.

Another difference is that stipulations end lawsuits in its entirety – parties cannot stipulate to resolve parts of a case. In settlements, however, partial resolutions to a case can be made and the parties can agree to let the court resolve the rest.

Are there different types of stipulations?

There are two types of stipulations: conditional and unconditional. The difference between the two lies in when “entry of judgment” is made. In an unconditional stipulation, entry of judgment is entered when the stipulation papers are filed with the court. In a conditional stipulation, entry of judgment is entered only if, and after, a breach in the stipulation agreement.

This “entry of judgment” date is important in determining if the case will be made public.

What is “masking” in eviction stipulations?

In California, eviction cases are “masked” for the first 60 days (CCP §1161.2(a)(1)(F)). This means that the lawsuit is only known by the parties involved and the court. The records will be “unmasked” if the landlord wins (obtains judgment) within 60 days of filing the eviction lawsuit. And if the landlord obtains a judgment more than 60 days after the filing of the complaint, the records will be unmasked only upon order of the court. If the case is “unmasked,” any delinquency in rent can be reported to the credit bureaus.

Thus, tenants should avoid “entry of judgment”, at all costs, to prevent public disclosure of the eviction, or else the negative impact of the eviction, a bad credit report, can follow them around for years.

What should be included in eviction stipulations?

When drafting a stipulation, the stipulation should include the following:

State the winning party – If the stipulation is silent on who the winning party is, the winning party is the party that obtained “a net monetary judgment” under CCP §1032(a)(4).
Who will receive possession of the premises?
Move-out date – If the tenant agrees to move, include a move-out date.
Past due tent to be paid – Include “benefit for early payment” and ask for less if past due rent is paid, or else the full amount of past due rent is due.
Security Deposit – Specify if the security deposit is to be returned.
List any conditions that need to be met – i.e., repairs, cleaning, change in tenant behavior, habitability issues.
General release of liability – §1542 waiver should be included to prevent future litigation on the same matter.

Section 1542 Waiver – In granting the release herein, which includes claims that may be unknown to you at present, you acknowledge that you have read and understand Section 1542 of the California Civil Code, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” You hereby expressly waive and relinquish all rights and benefits under that section and any law or legal principle of similar effect in any jurisdiction with respect to the releases granted herein, including but not limited to the release of unknown and unsuspected claims granted in this Agreement.

Reserve rights to recover damages under CCC §1951.2.
If and who is to pay attorney fees and/or costs
Enforcement of stipulations – Stipulations may state that the papers will not be filed unless a breach. If so, it may be good to include a notice period more then a 24-hr notice-and-cure period before filing papers.
Dismissal of suit – Dismissal of the suit with or without prejudice on tenant’s performance of stipulation.

Are there any drawbacks from using eviction stipulations?

Stipulations, generally, are a good way to save time and costs to end litigation. However, there are drawbacks when using a stipulation, specifically for tenants.

No Litigation – Tenants will lose the ability to defend the case before the court and the landlords will not have to prove anything.
Cannot Appeal – Once a stipulated judgment is entered, the parties cannot petition the courts to review the agreement.
Public Record – Stipulations when filed become a part of the public records and so some care is needed to keep some issues, or details, out of stipulation that otherwise would be included in a settlement agreement. Only issues that the court may need to enforce should be included.
Limited Collections – Stipulations are not considered “full court judgments” and so not all collection methods are available. Some of the harsher collections methods, like wage garnishment, levies, and liens are unavailable.
Liability – Admission to any fault may lead to exposure to adverse consequences outside of the lawsuit.

Are there other things to consider when using a stipulation?

If a stipulation is being contemplated, consider the following:

Goals – Understand and pursue your goals for the stipulation, whether it be possession of the premises, payment of past due rent, and/or a change in conduct.
Timing – Think about the timing of when to offer a stipulation. Analyze the opposing sides positions/arguments, the strength of the opponent’s case, and the resolve of your adversary.
Costs – Weigh the costs of continuing the suit versus a compromised resolution.
Ability to collect – Determine if the tenant is judgment-proof. If so, determine whether giving up to certain conditions is better than pursuing all remedies against a party that can legal avoid paying any judgment. It may be economically beneficial to lose some rights to save time and costs.

Landlord and Tenant Attorney