[WSBARP] UD Defense Gurus

[Paul Neumiller]

Lenard, thanks for these cases. You are basically right, but later cases took offense that the language in the earlier cases said that the courts "lacked jurisdiction."  The later court decisions said that the superior courts "of course" had jurisdiction for a UD under the WA Constitution but rather are "prevented from exercising" their jurisdiction if the proper pre-eviction notice wasn't given.  

Have a great weekend.
 

-----Original Message-----
From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Lenard Wittlake
Sent: Wednesday, November 13, 2019 6:06 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] UD Defense Gurus

Proper statutory notice under RCW 59.12.030 is a "jurisdictional condition precedent" to the commencement of an unlawful detainer action.  Terry, 114 Wn.2d 564-65, quoting Sommers v. Lewis, 49 Wn.2d 891, 894, 307 P.2d 1064 (1957).  Noncompliance with statute prevents court from gaining subject matter jurisdiction so case must be dismissed.  See also IBF, LLC v. Heuft,
141 Wn.App 624, 632, 174 P.3d 95 (2007).

Lenard L Wittlake, PLLC
Attorney & Counselor at Law
22 East Poplar Street, Suite 202
P.O. Box 1233
Walla Walla, WA 99362
(509) 529-1529 voice
(509) 850-3515 fax
Lenard at wittlakelaw.com

-----Original Message-----
From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Wednesday, November 13, 2019 2:24 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] UD Defense Gurus

Found the answer to the second question; CR 15 says the amending party must get "leave of the court" to amend a pleading if a responsive pleading has already been served.  Anyone have any input as to requiring the LL to have to file a new lawsuit if the LL serves a new eviction notice?  

 

-----Original Message-----
From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Paul Neumiller
Sent: Wednesday, November 13, 2019 12:19 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] UD Defense Gurus

Hi All, I represent a commercial tenant in an UD action.  At the show cause hearing yesterday, I alleged that LL had improperly served the eviction notice, if at all.  Judge ordered an evidentiary hearing on question of whether tenant was served properly or, from the bench the Judge suggested the LL re-serve the eviction notice and then "amend the complaint."  So, today, the LL served a brand new eviction notice on the tenant.  It would appear that the LL has decided to re-ring the bell and serve a new notice rather than fight about service of the old notice.  I suspect the LL is following the Judge's advice from the bench and will now attempt to amend the complaint.  

1.	BUT BUT BUT, the initial complaint is based on faulty service of the
eviction notice.  Doesn't the LL have to file a new complaint?  Can a LL really rehabilitate the old complaint by re-serving the eviction notice and then amend the complaint.  Or, is this one of those times when the judge will roll his or her eyes at me and allow the LL to amend the complaint because that is the functional equivalent of a filing a new lawsuit?  

2.	BTW, I have already filed an answer to the old complaint so is my
understanding correct that the LL has to note up a hearing to get the court's permission to amend the complaint? 





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