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Unlawful Detainers
A lawsuit to evict a tenant is called an unlawful detainer. The eviction process begins when the tenant is given a notice from the landlord to move out. If the tenant does not move out in time, the landlord can file a lawsuit. In a lawsuit, the landlord is called the plaintiff and the one who is being sued, the tenant, is called the defendant. The process starts with either a 3-day Notice or 30/60-day Notice.
3-DAY NOTICES A landlord may terminate a tenancy by giving a Three Day Notice to Pay Rent or Vacate Premises to the tenant(s), in the manner prescribed by Civil Procedure section 1162 provided the tenant(s) has failed to pay rent and the rent is late pursuant to the rental agreement.
30/60-DAY NOTICES A landlord may terminate a month-to-month (not a fixed term lease unless the lease has expired and the tenant(s) will not move) tenancy by giving a Sixty (60) Day Notice to Quit if all tenants have been in the unit for more than one year or a Thirty (30) Day Notice if any tenant has been in the unit for less than one year in the manner prescribed by Civil Procedure section 1162.
This procedure involves preparing the original notice, making appropriate additional copies, and serving it on the tenants by either:
a. Personal Service
b. Substituted Service
c. Service by Posting
You then complete a Proof of Service.
You MUST have legal service, following California laws, to continue with the Unlawful Detainer (Eviction) process.
Then, Calendar the date of termination so that any unlawful detainer proceedings may be promptly initiated if necessary.
PLEASE NOTE: A landlord may terminate tenancy for other reasons, including failure of the tenant to perform a covenant of the lease.
SUMMONS & UNLAWFUL DETAINER COMPLAINT
Counting the Time to File the Summons and Unlawful Detainer Complaint.
You may file the Summons and Complaint the day following the expiration of the notice(s) you have served on the tenant(s), provided that the notices have not been "cured" (i.e., tenants have not moved [30-Day Notice] or you have not received any payment towards rent [3-Day Notice to Pay Rent or Quit]).
Who is named as Defendant in the action? The tenants in possession of the property that you have served the notices upon that have not "cured" the notices.
PAPERWORK NEEDED TO EVICT A TENANT
- SUMMONS
- COMPLAINT
- CIVIL CASE COVER SHEET
You may also need a PREJUDGMENT CLAIM OF RIGHT OF POSSESSION. If you have any unnamed tenant(s) who appear to be or who may claim to have occupied the premises at the time of the filing of the Summons and Unlawful Detainer Complaint, service of the appropriate form will place everyone who lives in the rental unit on notice that they may be evicted by court order, not just the tenant(s) named in the Summons and Complaint. This procedure shifts the burden to the unnamed occupants to add themselves as defendants to the action by timely filing a claim of right to possession. Whether or not they choose to so file, all unnamed occupants are thereafter barred from objecting to the enforcement of the eviction judgment (Code of Civil Procedure section 1174.3).
NOTE: IF THIS FORM IS SERVED, A DEFAULT JUDGMENT AND WRIT OF POSSESSION CANNOT BE OBTAINED FOR AN ADDITIONAL TEN (10) DAYS. THEREFORE, IT WOULD BE ON THE SIXTEENTH DAY FOLLOWING SERVICE ON THE TENANTS, INSTEAD OF THE SIXTH DAY, THAT A DEFAULT COULD BE OBTAINED AND A WRIT OF POSSESSION ISSUED TO EVICT THE KNOWN TENANTS. Service of this form must be made with the Summons and Unlawful Detainer Complaint.
SERVICE OF DOCUMENTS ON TENANT(S)
WARNING: YOU, THE PLAINTIFF, CANNOT SERVE THE SUMMONS AND UNLAWFUL DETAINER COMPLAINT. A PROCESS SERVICE IS THE MOST EFFICIENT METHOD OF SERVING THE DOCUMENTS AS THE TENANT(S) MAY TRY TO AVOID SERVICE AND PROCESS SERVERS HAVE THE EXPERIENCE TO EFFECT SERVICE PROPERLY.
A separate Proof of Service must be completed for each tenant served. Please refer to Code of Civil Procedure section 417.10(f) for substituted service as this method requires an additional document, a declaration of diligence. The Summons and Complaint may be served by "Posting & Mailing", but requires a court order (Code of Civil Procedure section 415.45). The completed Proof of Service, together with the original Summons, must be filed with the court. Be sure to make enough copies so you have filed copies for your records.
DEFAULT UNLAWFUL DETAINER PROCEEDINGS
WHEN TO FILE THE REQUEST TO ENTER DEFAULT. If the defendant fails to file an Answer with the court within five days of the effective date of personal service, you can file the Request to Enter Default and the other documents so that you can get possession of your property. Should the sixth day fall on a Saturday, Sunday, or holiday, you must add an additional day before you can file the default documents.
It is important that you are prepared to file your Default documents with the court on the morning of the sixth day after service as any delay will allow the defendant to file an Answer even though the time has expired. Essentially, after the time is expired, how the case proceeds is dictated by who files their documents with the court first. You may call the court and provide them with your case number to verify that an Answer has not been filed.
Exceptions to the five days. If a defendant has been served by any other method other than personal service, such as substitution service, or a Prejudgment Claim to Right of Possession was served with the Summons and Complaint, the Default documents cannot be filed until the sixteenth (16th) day following the effective date of service.
COMPLETE THE REQUEST TO ENTER DEFAULT
COMPLETE THE WRIT OF POSSESSION
CONTESTED UNLAWFUL DETAINER PROCEEDINGS
(IF YOUR TENANT FILES AN ANSWER) If your tenant(s) files an Answer to the Unlawful Detainer Complaint, either party may request that the case be set for trial. Trial of an unlawful detainer action is entitled to preference in setting so long as the tenant(s) remains in possession of the property. The adverse party must have at least five days notice of trial, or 10 days notice if served by mail (Code of Civil Procedure section 594), which is usually the case as the court clerk will mail a notice of the date and time of the trial to both parties. If the tenant(s) vacates the premises, the matter loses its urgency status and proceeds to trial without preference. While the parties are entitled to trial by jury (Code of Civil Procedure section 1171), this will add to the costs of the party requesting a jury and will add to the length of the trial. Generally, an unlawful detainer trial without a jury lasts only a short time.
Preparing Your Case For Trial
- Note the Trial Date set by the court clerk
- Discover What Evidence the Tenant Has Against You
- Get Your Evidence Ready for Trial
Most eviction cases are conducted before a judge or commissioner in a short period of time. Evidence the court usually considers includes documents, such as rental agreements, notices to quit, letters between the landlord and tenant, and photographs of the condition of the property. The court also considers testimony of the parties, and when appropriate, testimony of other witnesses. Testimony is what a person tells the court under oath about what happened in the case. You should make copies of the documents, and an outline of your testimony that you wish to present in court so you will be prepared to present your case. This will help you to focus on the issues in the case.
Bring all documents you need to prove your case. Have extra copies of each document you plan to give to the court, so you can give one copy to the other side first. An additional copy to hand the judge is also a good idea.
Once you win your case, you must PREPARE THE WRIT OF EXECUTION (MONEY JUDGMENT) & POSSESSION OF REAL PROPERTY AND ANY OTHER NECESSARY FORMS
PHYSICAL EVICTION PROCESS: The Sheriff's office will serve the Writ of Possession on the tenant(s). Approximately one week later, the Sheriff will contact you with the exact time and date for the physical eviction. Make sure someone is home to write down the message from the Sheriff's office or that you have an answering machine. The eviction will usually take place the day after the Sheriff notifies you.
In approximately ten (10) days the Sheriff will notify the court that the physical eviction has been completed by returning the original Writ of Possession to the court. You may then proceed with the money judgment if you wish.
Pricing for the above services.
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