The Eviction Process and Unlawful Detainer Lawsuits
To evict a tenant from a residential or a commercial property in California, a landlord needs to file an unlawful detainer lawsuit in the Superior Court, which is an accelerated court proceeding, in order recover possession of the rental property. Normally, the case is decided within 20 days after a request for trial is granted. DBY Law handles unlawful detainer lawsuits for both commercial and residential leases. We provide all type of eviction services in Los Angeles to both landlords and tenants, and charge a flat rate fee for the entire unlawful detainer process (hourly fees are also available). Because of the accelerated nature of the unlawful detainer lawsuit, there is no room for error in the eviction process. Landlords who fail to follow the legal requirements will likely have their cases dismissed and could also unintentionally forfeit the right to evict a tenant. Similarly, tenants have very little time to act and respond to the unlawful detainer complaint, and must have viable legal defenses if they went to remain in the rental property. Call us today at (213) 316-8844 for a free consultation.
The basic steps in an unlawful detainer eviction lawsuit:
- Notice of termination (normally a 3-day notice to quit)
- Filing and Serving the Unlawful Detainer
– Optional Step: Service of the prejudgment claim of right to possession form on unnamed tenants
- Tenant’sResponse (or default – failure to respond)
- Requesting Trial
- Trial and Judgment for Possession
- Getting a Writ of Possession
- Actual Eviction According to the Writ of Possession
The unlawful detainer eviction in California can be based on the following reasons:
- Tenant’s non-payment of rent
- Violation of the lease agreement
- Committing waste (materially damaging the rental property)
- Committing a nuisance (substantial interference with other tenants)
- Domestic violence, sexual assault, or stalking (against another tenant)
- Using the property for an illegal purpose
- Dealing, cultivating, importing, or manufacturing illegal drugs
- Using the rental property for dogfighting and cockfighting
- Nuisance caused by illegal conduct involving illegal weapons
If the tenant does not move out (or cure of the breach) after the 3 days, only then can a landlord initiate an unlawful detainer lawsuit for eviction in the Superior Court.
STEP 1: 3-Day Notice To Quit
A landlord or the attorney can initiate a tenant eviction through an unlawful detainer lawsuit only after preparing and giving the tenant an advance written 3-day notice to quit. The 3 days start counting on the first day after the day the notice was served. If the third day is a Saturday, Sunday, or a holiday, the 3 days are not completed until the following Monday or non-holiday.In order to be effective, the notice must be in writing and properly served on each tenant (see below). The notice must also contain the following:
- Description of exact rental property (address, rental unit number, etc.)
- The amount due or the nature of the breach (such as failure to pay rent and the amount due, committing nuisance, waste, etc.)
- The name, address, and phone number of the person that the tenant must pay rent to
- A demand for cure or correction of breach within 3 days, if the breach can be corrected (such as non-payment of rent, or having a pet that is not allowed under the lease)
– Alternatively, if the breach is not correctable, the notice must contain a demand that the tenant leave the rental property within 3 days
- Unambiguous demand for possession, in the event that the tenant does not cure the breach
- Optional provision: Declaration of forfeiture. If the landlord wants to get the tenant to move out and also get the rent that the tenant owes, the 3-day notice to quit must contain a “forfeiture of the lease” declaration (If this provision is missing, the judgment in the unlawful detainer suit could allow the tenant to stay in the rental by paying rent and damages within 5 days after entry of judgment)
- The landlord’s signature
– *Rent control ordinances may impose additional requirements
Serving the 3-Day Notice To Quit
The law requires that the 3-day notice to quit be served on the tenants (delivered or given to them) an in exact way in order to be effective. The service requirements ensure that the tenants are put on notice that they have 3 days to act.Unlike a30-day or a 60-day notice, the 3-day notice must be served in one of the following ways:
- Personal Service: giving or hand-delivering a copy of the notice to the tenant personally
- Substitute Service on Another Person:if the landlord cannot find and serve the tenant at home or at work, the tenant can still be served. The person serving the notice must leave a copy with another person at the tenant’s home or workplace, and also mail another copy to the tenant’s home. The person who the notice is left with should be an adult or at least a teenager.
- Posting and Mailing (“Nail and Mail”): if the landlord cannot find the tenant at home or at work (personal service), and cannot serve the tenant by substitute service, the 3-day notice to quit can be served by taping or affixing the notice to the front door of the rental unit (or another visible place), and also mailing another copy to the tenant at the rental property’s address.
Service of the 3-day notice is not effective and incomplete until the copy of the notice has been mailed (under options 2 & 3). The 3-day period starts the day after the notice was posted and mailed.
STEP 2: Filing and Serving the Unlawful Detainer Complaint
If the tenant has not moved out or cured the breach after the 3 days expire, the landlord or the attorney then file and serve the unlawful detainer complaint. In order for it to be effective, the unlawful detainer complaint must contain certain allegations (such as the basis for eviction) and come along with certain attachments (such as the summons, 3-day notice to quit, etc.).If the complaint is missing one of the essential allegations or attachments, the tenant could potentially dismiss the case by filing a demurer or a motion to quash (always consult an attorney before using such procedures). After the complaint is filed in the appropriate court, the tenant must be served with a copy of the complaint.After the tenant is served, the proof of service must be filed with the court. Serving the Unlawful Detainer Complaint There are 5 ways to serve a tenant with the complaint in an unlawful detainer lawsuit:
- Personal Service: giving or hand-delivering a copy of the complaint to the tenant (the landlord cannot be the one serving the tenant because he/she is a party to the lawsuit).
- Substitute Service on Another Person: if the tenant cannot be personally served at home or at work, the tenant can still be served. The person serving the complaint and summons must leave a copy with another person at the tenant’s home or workplace, and also mail another copy to the place where the complaint was left. The person who the complaint is left with should be an adult who is at least 18 years of age and who is informed of the contents.
- Mailing with Acknowledgment of Receipt:A copy of the summons and complaint can be mailed to the tenant, along with 2 copies of a statutory form notice and acknowledgment of receipt and a return envelope, postage prepaid, addressed to the sender (usually the landlord).
- The notice and acknowledgment form must notify the tenant that unless he/she signs and returns the acknowledgment form within 20 days, service will be made in some other way and the tenant will be responsible for the extra costs of service.
- Posting and Mailing (“Nail and Mail”): only with prior court approval, a tenant may be served by taping or affixing the complaint to the front door of the rental property (or another visible place), and also mailing another copy to the tenant at the rental property’s address.
- Alternative Certified Mail:only available when the tenant leaves/abandons the rental property before the lease is up. The landlord can terminate the rental by serving a written “Notice of Belief of Abandonment.” The tenant can then respond with a written notice of intent not to abandon. The landlord then has the option of starting a new unlawful detainer action against the tenant.
- The complaint can be served on the tenant by certified mail, postage prepaid, to the address shown on the tenant’s notice of intent not to abandon.
OPTIONAL STEP: Serving the “Prejudgment Claim of Right to Possession” on Unnamed Tenants All adult tenants occupying a rental property must be named on the complaint for it to be effective against them. If certain tenants are not named, they can get a postjudgment claim of possession against the landlord and then the landlord must initiate a new unlawful detainer lawsuit against those tenants, resulting in delays in the eviction process. To avoid such a risk, the landlord should serve a “Prejudgment Claim of Right to Possession” on the unnamed tenants. When the tenant is served with the unlawful detainer complaint, the prejudgment claim of right to possession form should be attached to a copy of the complaint. This forces the tenants who are unnamed in the complaint to add themselves to the unlawful detainer lawsuit by filing a claim of right to possession. Unnamed tenants have 10 days to file that claim by completing and filing the prejudgment claim of right to possession form. After that, the unnamed tenants can no longer object to the enforcement of the unlawful detainer judgment against them (no matter if they file a claim of right to possession or not). After filing the prejudgment claim of right to possession form, the unnamed tenants have another 5 days to file an answer with the court.
STEP 3: Tenant’sResponse to the Complaint (or default – failure to respond) Tenant’s Answer
Tenants in California have certain rights that landlord must abide by. Normally, tenants have 5 days after being served with the unlawful detainer complaint to file an answer with the court (or other responsive motions), so that they can avoid a default judgment. If the landlord uses the optional prejudgment claim of right to possession, the deadline to file an answer is extended by 5 days, meaning that named tenants will now have 10 days to file an answer with the court. The unnamed tenants who file the claim of right to possession with the court (within 10 days) have an additional 5 days to file their answer. A copy of the tenant’s answer must be served on the landlord by personal service or by mail. The proof of service for the answer needs to be attached to the original answer filed with the court. Once the tenant files an answer, the landlord should request a trial as soon as possible (see step 4). See the tenants’ rights page for more information of what to do when being served with an unlawful detainer complaint. Tenant’s Default (failure to respond to the unlawful detainer complaint) If the tenant does not file an answer with the court within 5 days after being served with the unlawful detainer complaint (or 10 days in some cases), the court could grant a default judgment in favor of the landlord without trial (or in other words, the landlord wins and the tenant will have to move out). In order for a landlord to obtain a default judgment against a tenant, the landlord or an attorney must file a written application for entry of default, along with proof of service of the summons and complaint.The landlord must then mail a copy of the default entry application to the tenant at the last known address. The court then enters the tenant’s default and grants a default judgment. With that default judgment, the landlord is awarded possession of the rental property and the court issues a writ of possession (an order for the sheriff to remove tenants from the rental property – see step 6). The sheriff then takes the writ of possession and posts it on the defaulting tenants’ property, giving them5 days from the date that the writ was served to leave on their own. If the tenants do not leave by the end of the 5th day, the writ of possession allows the sheriff to physically remove and lock them out. The landlord is not allowed to regain possession of the rental property until after the sheriff has removed the tenants.
STEP 4: Requesting a Trial
If the tenant files an answer to the unlawful detainer complaint, the landlord or the attorney should then file a Request to Set Case for Trial form (Judicial Council Form UD-150) with the court, which includes a Proof of Service by Mail form. After mailing the tenant a copy of the form, the person who mailed it fills out a copy of the Proof of Service by Mail form. Thereafter, the Request to Set Case for Trial and the Proof of Service by Mail forms are filed with the court. The court clerk will then set the date for the unlawful detainer eviction trial (normally not more than 20 days after the request). However, in some cases, the court could extend the time before the case is brought to trial. If the tenant is not in possession of the rental property when it is time for trial, the case is no longer eligible for an unlawful detainer trial.
STEP 5: Trial and Judgment for Possession
In preparation for trial, the landlord or the attorney can conduct discovery by scheduling an oral deposition (a witness’s sworn testimony), submitting interrogatories (set of written questions), and demanding to inspect relevant documents and/or the property. Prior to trial, the judge will encourage the landlord and the tenant to negotiate and settle the matter without proceeding to trial. The parties then meet and typically negotiate the date that the tenant will move out and other outstanding amounts owed such as rent and damages to the property. If an agreement is reached, the court will enter a judgment according to the parties’ terms (called a stipulated judgment), which gives the landlord right to the property and provides time for the tenant to move out. If an agreement cannot be reached, the case will proceed to trial. At trial, the landlord goes first and must prove through evidence and witness testimony certain elements in order to win. For example, to recover possession of the rental property and make the tenant move out, the landlord must prove:
- The creation or existence of the landlord-tenant relationship
- The landlord’s compliance with the pre-lawsuit notice requirement (3-day notice to quit)
- The termination of the landlord-tenant relationship
- The tenant’s continued possession of the rental property
After the landlord makes his case, the tenant must prove (with evidence and testimony) facts that are essential to his/her affirmative defenses. At the end of trial, if the judgment is for the landlord, the tenant has to move out and could also be responsible for any unpaid rent, for landlord’s court costs, and attorney’s fees. On the other hand, if the judgment is for the tenant, the tenant does not have to move out and the landlord could be responsible for tenant’s court costs and attorney’s fees.
STEP 6: Getting the Writ of Possession
When the landlord wins and the court enters a judgment for possession in his/her favor, the landlord is entitled to immediately get of a writ of possession. The request is made to the court clerk by a written application along with a completed writ form (Judicial Council Form EJ-130). The writ of possession has strict requirements that must be followed in order to be effective. The landlord can get a writ of possession after the tenant’s default as well (without trial).
STEP 7: Actual Eviction According to the Writ of Possession
After getting the writ of possession from the court, the landlord or the attorney then deliver the writ to the sheriff/marshal along with proper instructions and the required fee. The sheriff must then enforce the writ under the law and physically evict the tenant if he/she does not move out. First, the sheriff serves the writ of possession on the tenants, and they have 5 days to leave the rental property on their own (with additional time to remove personal belongings). If the tenants have not left after the 5 days, the sheriff can physically remove the tenants along with other occupants who did not move out after the expiration of the 5 days.
DBY Law can help in the unlawful detainer eviction process!
The unlawful detainer process can be difficult for those who are not experienced in evictions. Therefore, it is important to have an experienced landlord-tenant lawyer to navigate the process and help reach a resolution quickly and painlessly. Call the office today at (213) 316-8844 for a free consultation.