In this post, I’m going to discuss something that often arises in a California residential Landlord-Tenant case where the tenant has lost at trial — can the tenant get extra time to move? If you’re a tenant who has lost his eviction case, the general process from the landlord’s side is to (1) get the court to issue a writ of possession, (2) deliver said writ to the county sheriff’s civil division for service, and (3) the sheriff serves the writ. Steps (1) and (2) can take place within one or two business days of the eviction trial. If the landlord is particularly quick, it might be the same day as the trial. (3) usually is what most people recognize as the sheriff coming to the rental property and taping up a sign on the door saying that the tenant has 5 calendar days to move. The timing of step (3) can vary. In my experience, some sheriff civil divisions are not open every day. Others are open only part of a weekday. On top of that, each division may have set schedules for service (e.g. only serving Monday and Wednesdays). Check with the sheriff’s civil division in your case to find out for certain what their schedule is.

Let’s assume that 5 calendar days elapses between the time the tenant loses at the eviction trial and the time the sheriff posts a notice on the tenant’s door to move out. The notice specifies another 5 days within which the tenant has to move. What happens if the tenant needs more than these 10 days?

The answer is a Stay of Eviction under California Code of Civil Procedure section 918. A “stay” is a fancy legal word for delay or postponement. Section 918 is worded in a confusing way, but says as follows:

918.  (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.

Section 918 applies to all sorts of cases, not just evictions so there is no eviction-specific language present. Section 918 also does not explicitly mention 40 days as a stay term, but it’s in section 918(b). 918(b) mentions the “10 days beyond the last date on which a notice of appeal could be filed” clause. The last date on which a notice could be filed appealing a judgment is 30 days after judgment is entered, pursuant to California Rule of Court 8.822. Adding 10 to 30 gets you the maximum period (i.e. 40 days) a judge may stay or postpone an eviction. 40 days is the maximum stay without the landlord’s consent. This is the “without the consent of the adverse party” clause in the middle of section 918(b).

I have never encountered it as the landlord-tenant relationship has usually broken down if a court proceeding has been filed, but if the landlord consents, it is possible for a stay to go beyond 40 days.

From the tenant’s perspective, not everything is rosy, however. In order to get a stay at all under Section 918, you have to pre-pay the rent for the period of the stay you’re asking for. In other words, if you want a 40-day stay, you have to have rent for those 40 days up front and ready before the judge will give you the stay. If you were evicted because you couldn’t pay rent (e.g. lost your job), then you’re probably not going to have any rent at all, much less 40 days. Second, you should also be prepared to demonstrate why you need extra time to move and why you would suffer a hardship if you didn’t get the stay.

Unfortunately, there are no magic words that I can tell you that will guarantee you’ll get a stay. Even if you have the rent to pre-pay in your hand, what constitutes a sufficient “hardship” will vary from county to county, situation to situation, and judge to judge. Even if all else is equal, what works for one judge could easily not work for another.

The best strategy, then, is that if you’re going to take a case to trial — any case, not just landlord-tenant — is to plan for the worst case outcome. As a tenant, this means you should hope to win and do everything you can to maximize your chance of winning, but you should also plan on what to do if you lose.

Section 918 applies all over California. The Superior Courts in some counties where 918 stays are common provide free packets that should, in large part, apply all over California. Here is the 918 packet put out by the Superior Court in Stanislaus County, California.

Good luck.

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Andy Chen

Attorney-at-Law at The Law Offices of Andy I. Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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