Monday, June 23, 2014

Red County or Blue County

Legalese.  Not even judges understand it or agree what it means.  Take, for example, the basic rule that court files are open for inspection by the public [the court is, after all, a branch of the government], and what is required to seal [make non-public] the court's file.

California Rule of Court 2.550 --
The court may order that a record be filed under seal only if it expressly finds facts that establish:
(1)There exists an overriding interest that overcomes the right of public access to the record;
(2)The overriding interest supports sealing the record;
(3)A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
(4)The proposed sealing is narrowly tailored; and
(5)No less restrictive means exist to achieve the overriding interest. 

Therefore, court records are available to the public unless the court specifically finds the factors above.

X County -- if both parties, landlord and tenant, reach a stipulation/agreement in an eviction case [usually written in court on the day of trial], the parties can agree to seal the court's file [make the entire file, including its existence, non-public].  The court will un-seal the record [making it public again] only if the tenants don't perform.  This is good for tenants, obviously, because future landlords, when screening these tenants' rental applications, will not find the previous eviction on their record.  It is good for the "current" landlord, because tenants are more likely to agree to move out, and are more likely to actually move out on the date specified.  It is not good for future landlords, because the eviction won't be listed in the public records, denying the future landlord the ability to make an informed decision on whether to rent to these tenants.

Y County -- for eviction cases, this county won't make the court's file non-public without a motion and a hearing, and a really good reason.  Therefore, tenants are less likely to want a stipulation/agreement unless it does not include a judgment.  Most landlords want a judgment.  Therefore, despite most eviction judges wanting the parties to settle, cases are more likely to go to trial.

This is one of many reasons why it's important to know what the courts are allowing in each county, before opening settlement negotiations in a case.

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