Eviction (Unlawful Detainer) Process in California – A Detailed Summary

Unlawful detainer is the legal term for eviction.  It is an expedited court process through which a landlord can evict a tenant[1] who continues to unlawfully possess real property.[2]  A landlord may commence an unlawful detainer action because the lease has expired, because the tenant has defaulted on paying rent, or because the tenant has violated lease terms.[3]  Landlords must follow the unlawful detainer procedures and cannot use self-help.[4]  A landlord who attempts to oust a tenant by taking actions such as terminating water or electricity, changing locks, or removing the tenant’s personal property is liable for actual damages and a penalty of $100 per day.[5]  The prevailing party in an unlawful detainer can be awarded attorneys’ fees and costs if the lease or rental agreement provides.[6]

Note that residents in a hotel or motel do not generally have tenants’ rights.[7]

Notice to Pay Rent or Quit

Before initiating an unlawful detainer action, the landlord must serve notice on the tenant either (1) by personal service, (2) by leaving a copy of the notice with a person of suitable age and discretion at the individual’s home or business and mailing a copy to the person’s home, or (3) if the prior two methods cannot be completed, by posting a conspicuous notice on the property, delivering a copy to any person residing there, and sending a copy by mail to the property.[8]

Landlords must provide different types of notice depending on the reason for the unlawful detainer action, as follows:

Three days’ written notice to the tenant is required in the following situations:[9]

  • Where the tenant has failed to pay rent. The notice must include: (1) the amount due, (2) the name, phone number, and address of the person to whom the rent payment should be made, and (3) details on how the payment can be made (e.g., days/hours for personal deliver or bank information).[10]  This should be labeled “Three Day Notice to Pay Rent or Quit.”
  • Where the tenant has failed to perform other conditions or covenants under the lease.  The notice must require the performance of the conditions.[11]  Note that if the covenants or conditions violated cannot be performed, then the landlord is not required to provide notice.[12]  This should be labeled “Three Day Notice to Perform Covenants or Quit.”
  • Where the tenant has committed waste or committed a nuisance on the premises, is committing waste, or using the premises for an unlawful purpose.[13]   The lease can be terminated and the landlord must serve a three days’ notice to quit before initiating an unlawful detainer action.[14]  This is the “Three Day Notice to Quit.”

30-Day or 60 Day Notice to Quit is required where the landlord wants to end a month-to-month tenancy.[15]  30 days is required for someone who has lived in the unit for less than one year; 60 days is required where the tenant has lived in the unit for more than one year.[16]  Note that local rent control laws may limit a landlord to specific conditions under which it may cancel a month-to-month tenancy.

90 days’ written notice to quit is required where:[17]

  • A property is sold in foreclosure, and the tenant is subject to a month-to-month lease or periodic tenancy at the time of the sale. However, where the tenant is subject to a fixed-term residential lease entered into before the transfer of title at the foreclosure sale, he may possess the  property until the end of the lease term (except under limited conditions set forth in Cal. Civ. Proc. Code  1161b(b)).[18]

Commencing the Action

After serving notice on the tenant, the landlord can commence the unlawful detainer action by serving a “Summons” and verified “Compliant – Unlawful Detainer” on the tenant.[19]

The tenant has five days after service to respond, by either (1) answering the Summons and Complaint, or (2) filing a responsive pleading (such as a motion to quash, a demurrer, or a motion to strike).[20]

An Answer can be filed using the unlawful detainer Form UD-105.  This video will provide you (http://pd.global.playstream.com/courtvsh/progressive/flash/UD-105.html) step by step instructions on how to fill out the form.  The Answer should deny the appropriate paragraphs of the Complaint and explain any affirmative defenses (see below).

Affirmative Defenses to an unlawful detainer complaint include the following:

  • Habitability: Where the landlord has breached the warranty to provide habitable premises.[21]  Habitability includes effective waterproofing, plumbing and gas facilities, hot and cold water, sewage, garbage receptacles, and floors, stairways and railings that are maintained in good repair.[22]
  • Repair and Deduct: Where the tenant needed repairs and properly deducted the cost of the repairs from the rent, and the landlord did not give proper credit.[23]
  • Tenant offered to pay rent within 3 days of being served with the 3 Day Notice to Pay or Quit, but the landlord rejected the rent.[24]
  • Defective Notice to Quit: Where the landlord’s notice to quit was defective.  A 3 Day Notice to Quit must be served either by (1) personal service on the tenant, (2) leaving it with a personal of suitable age and mailing it to the tenant, or (3) posting and mailing the notice.  It must also include required language or advisories, and appropriately state the rent due.
  • Retaliation: Retaliation is “implied” where there is proof that the tenant complained to the landlord about the habitability of the premises and the tenancy was terminated within 180 days, and the tenant is not in default in the payment of rent.[25]  Otherwise, the tenant must prove retaliation without this inference.
  • Discrimination: Where the landlord is discriminating against the defendant in violation of the Constitution or the laws of the United States or California by filing the complaint.  The following are protected categories against which landlords may not discriminate in California: sex, color, race, religion, marital status, national origin, ancestry, familial status, disability, source of income, age, sexual orientation, gender identification.
  • Rent Control: Where the landlord’s demand for possession violates the local rent control or eviction control ordinance.
  • Acceptance of rent after expiration of notice to quit: Where the landlord accepted rent to cover a period of time after the date the notice to quit expired.[26]
  • Domestic Violence: Where the landlord seeks to evict the tenant based on acts against the tenant or a member of the household that constitute domestic violence, sexual assault, human trafficking, or abuse of an elder or dependent adult.[27]  (A temporary restraining order, protective order, or police report of not more than 180 days old is required as proof.[28])
  • Other Defenses include waiver, estoppels, breach of the covenant of good faith and fair dealing, and unclean hands.

Motion Practice

After filing the unlawful detainer action, the landlord may take immediate possession of the property by filing a writ of possession.[29]  The writ of possession will only be granted at that time if the court is satisfied that the tenant resides out of state, has left the state, cannot be found in the state, or has concealed himself to avoid service.[30]  Otherwise, the landlord must continue through the regular unlawful detainer procedure.

Discovery

In eviction cases, discovery must be completed on or before the 5th day before trial.[31]  The normal discovery tools, including interrogatories, form interrogatories, requests for production, requests for admission, and depositions may be used.  Additionally, you may serve a request for inspection of real property.

Parties have five days to respond to discovery served by personal service.  Add five days to that timeline if discovery is served by mail.

Discovery motions and motions for summary judgment may be filed with five days’ notice.[32]

Fee Waivers

Individual may request a Fee Waiver through Form FW-001 and FW-003 (Order on Fee Waiver).  This video provides step by step instructions (http://pd.global.playstream.com/courtvsh/progressive/flash/FW-001.html) on how to fill out the Fee Waiver form.

Individuals are eligible for fee waivers if they are on certain public benefits[33], meet the income guidelines, or if their income is over or close to their expenses.  The court will rule on the fee waiver within five days, and the tenant can redo the form or ask for a hearing if the fee waiver is denied.  The tenant must pay filing fees within 10 days if the fee waiver is denied.  The fee waiver is confidential and must not be served on the opposing party.

Third Party Records

Local Code Enforcement programs enforce housing laws and ordinances, including requirements under California Health and Safety Code 17920.3.  They may receive housing code complaints from tenants, and typically respond by inspecting the property to determine whether there are substandard conditions or conditions that pose a threat to the health and safety of a tenant.[34]  If the tenant previously made such a complaint, you may want to retrieve these records.  You can get Code Enforcement records through a public records request to the city agency handling the records.

In the event that you need to contest the landlord’s standing or ownership of the property, you can get certified copies of the property deed from the County Clerk Recorder’s Office.

Trial

Upon receiving a case, the parties or the attorney should call the court clerk to check whether a trial date has been set.  Because eviction cases are masked from public view for 60 days, this information will not be available on the website.

Once the landlord requests a trial, the court will set a trial date no less than 10 and no more than 20 days from the date of the request.[35]  Note that parties may use the same discovery as in civil cases, but with shortened deadlines.[36]  Because the premise of an unlawful detainer case is “possession” of the premises, the case will turn into a regular civil case if the tenant moves out.

Lockout Process

If judgment is entered for the landlord, the court will issue a Writ of Possession[37], which orders the sheriff to evict the tenant from the unit, but also allows the tenant five days from the date the writ is served to voluntarily leave.[38]  The sheriff will process the writ of possession and generate a Five-day Sheriff’s Notice to Vacate the following day.

The 5-Day Notice to Vacate is posted by the Sheriff Monday through Friday, and provides the specific date the tenant must leave the premises.[39]  If the tenant does not vacate the premises on or before midnight of the lockout date, the landlord must call the Sherriff to remove the tenant.[40]

Where a tenant has left personal property in the unit, the Sheriff can either remove the belongings or have them stored by the landlord, who may charge reasonable storage fees.[41]  To retrieve the property, the tenant must (1) request in writing to reclaim the property within 18 days of vacating the premises, (2) provide the landlord with reasonable storage costs, and (3) agree to remove the property within 72 hours of providing the landlord with payment of the costs.[42]

After that time, the landlord can provide the property someone he reasonably believes is the owner[43], sell the property at a public auction, or keep the items if they are worth less than $700.[44]

Post-Judgment Relief

A tenant can bring a post-judgment motion called a “Stay of Execution“ to ask the court for more time to vacate the premises.[45]  This motion should be brought ex parte and is a hardship-based request.  The tenant may request up to 40 days from the date of the judgment to move out, and must pay rent for the time period upfront.[46]

Confidentiality

Eviction cases are masked from public view for 60 days from the date the Complaint is filed.[47]  If the tenant prevails in the action, the case is masked indefinitely.[48]  If you believe that the case will not settle before this time, you should enter into a stipulation to extend the masking period beyond 60 days.

Local Rules

The eviction process is different in every court, so you should make sure to review the Local Rules for your court and standing orders for your judge (if any).

[1] Throughout this document, “tenant” is used to refer to any possessor of real property, including a tenant, subtenant, or executor or administrator of an estate.  Note that all persons who enter the premises under the tenant after the commencement of the suit are bound by the final judgment as if they were a party to the action.  See Cal. Civ. Proc. Code § 1164.

[2] Cal. Civ. Proc. Code § 1161.  Note: Unlawful detainer in commercial real property cases is discussed in a separate article.

[3] Cal. Civ. Proc. Code § 1161 (3) (Continued possession where there is a “neglect or failure to perform other conditions or covenants of the lease” including an illegal sublet).

[4] Cal. Civ. Code § 789.3(c)(2).

[5] Cal. Civ. Code § 789.3(c)(2).

[6] Cal Civ. Code § 1717.

[7] Cal. Civ. Code §§ 1940-1940.1; Cal. Health and Saf. Code §§ 50580-50591.

[8] Cal Civ. Proc. Code § 1162(a).

[9] Cal. Civ. Proc. Code § 1161 (2).

[10] Cal. Civ. Proc. Code § 1161 (2)(if the address does not allow for personal delivery, the payment is presumed to be received upon mailing)..

[11] Cal. Civ. Proc. Code § 1161 (3).

[12] Cal. Civ. Proc. Code § 1161 (3).

[13] Cal. Civ. Proc. Code § 1161 (4).  Public nuisance under Cal. Civ. Code § 3482.8 or any offense under Cal Civ. Code § 3485 (c) or § 3486(c) qualify as a nuisance.

[14] Cal. Civ. Proc. Code § 1161 (4).

[15] Cal. Civ. Code § 1946.1.

[16] Cal. Civ. Code § 1946.1.

[17] Cal. Civ. Proc. Code § 1161b.

[18] This provision is in effect until December 31, 2019.

[19] Cal. Civ. Proc. Code § 1166.

[20] Cal. Civ. Proc. Code §§ 1167, 1170.

[21] Cal. Civ. Proc. Code § 1174.2; Cal .Civ. Code § 1941.1.

[22] Cal .Civ. Code § 1941.1; see also Disability Rights California, “Your Rights! Protecting Yourself Against unsafe Living Conditions and Evictions,” September 2011, available at http://www.disabilityrightsca.org/pubs/550101accessible.pdf.

[23] Cal .Civ. Code § 1942.

[24] Cal. Civ. Proc. Code § 1161.5.

[25] Cal. Civ. Code § 1942.5.

[26] If a landlord accepts partial payment of rent, he must provide actual notice to the tenant that acceptance of the partial rent payment does not constitute any waiver of rights, including any right the landlord may have to recover possession of the property.  See Cal. Civ. Proc. Code § 1161.1 (c).

[27] Cal. Civ. Proc. Code § 1161.3 (a).

[28] Cal. Civ. Proc. Code § 1161.3 (a)(1).

[29] Cal. Civ. Proc. Code § 1166a (a).

[30] Cal. Civ. Proc. Code § 1166a (a).

[31] Cal. Civ. Proc. Code § 2024.040(b)(1).  Discovery can be a good way to leverage settlement, because opposing parties may prefer to settle before preparing discovery responses.  However, they can also inform the opposing party about arguments and evidence they need before trial.

[32] Cal. Civ. Proc. Code §§ 1170.7-1170.8.

[33] Such as SSI/SSP, CalWORKs/TANF, Food Stamp or General Relief/General Assistance program.

[34] See, e.g., City of Berkeley Housing Code Enforcement at http://www.cityofberkeley.info/HousingInspectionRequestByTenant.aspx.

[35] Cal. Civ. Proc. Code § 1170.5.

[36] See, e.g., Cal. Civ. Proc. Code § 2030.020 (interrogatories may be propounded five days after service of summons).

[37] Cal. Civ. Proc. Code §§ 712.010 et seq., 715.010 et seq., 1170.5(a)

[38] Cal. Civ. Proc. Code § 715.010

[39] Cal. Civ. Proc. Code § 715.040.

[40] Cal. Civ. Proc. Code § 715.010(c).

[41] Cal. Civ. Proc. Code §1965(a)(3).

[42] Cal. Civ. Proc. Code §1965(a)(4).

[43] Cal. Civ. Proc. Code § 1174(h).

[44] Cal. Civ. Code § 1988(a); Cal. Civ. Proc. Code § 715.030.  See Department of Consumer Affairs’ Legal Guides LT-4, “How to Get Back Possessions You Have Left in a Rental Unit,” and LT-5, “Options for a Landlord: When a Tenant’s Personal Property has Been Left in the Rental Unit,” available at http://www.dca.ca.gov/publications/legal_guides/lt-4.shtml.

[45] Cal. Civ. Proc. Code § 918(a); Industrial Indemnity Co. v. Levine, Cal. App. 3d 698, 700 (1975) (“The stay of execution . . . is used to allow the judgment debtor time to gather his resources so that the judgment may be satisfied without unnecessary hardship.”); Medford v. Superior Court, 140 Cal. App. 3d 236, 240 (1983) (stay of execution may be conditioned on the tenant’s payment of rent accruing during the period of the stay, but not on payment of back rent); Kaiser v. Hankcock, 25 Cal.App. 323, 328 (1914).

[46] Cal. Civ. Proc. Code § 918.  40 days is allowed because the court may stay execution for 10 days beyond the last date on which a notice of appeal could be filed.  Under California Rules of Court, Rule 8.822, a party may appeal an unlawful detainer judgment within 30 days after the notice of entry of judgment is mailed by the clerk or opposite party, or 90 days after entry of judgment, whichever is earlier.

[47] Cal. Civ. Proc. Code § 1161.2 (a)(5).

[48] Cal. Civ. Proc. Code § 1161.2 (a)(5).

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