Unlawful Detainer Process
Our firm is pleased to guide you through California’s unlawful detainer process. If you have a particular legal question, please feel free to call, and an experienced attorney will address your question at no charge.
The unlawful detainer lawsuit is the only legal way to remove a tenant or occupant who refuses to vacate your property. This process applies to residential rentals, commercial rentals, investment purchases, and foreclosure acquisitions. A summary of the unlawful detainer lawsuit – both uncontested and contested – can be seen in the time chart.
This firm’s practice is focused on representing owners in the eviction process. Our approach combines cutting-edge legal technology with professional, efficient service. Because of this effectiveness, we’re able to handle your evictions faster, and for less than the competition.
There are several steps involved in the eviction process from serving the initial notice, to executing the judgment – all of which are discussed in detail in the links below.
We encourage our clients to initiate proper eviction steps as soon as possible – time is money. We are available to serve you any and every step of the way.
Preparing the Notice
California law states that a tenancy may be terminated by proper written notice that is correctly served on the tenant. Common types of eviction notices are:
Three Day Notice to Pay Rent or Quit This notice must be used when the tenant violates the agreement by failing to pay rent when due. The rent stated in the notice must be exact – do not include late charges or other non-rental requests.
Three Day Notice to Quit This notice is used when dealing with a tenant at-will, holdover tenant from an expired term lease, or holdover prior owner occupant following foreclosure.
Thirty Day Notice A thirty day notice is served on a regular month-to-month tenancy when the tenant has lived at the property less than one year. No reason need be given (except in certain rent control areas). The notice may be served at any time during the month.
Three Day Notice to Cure Breach or Quit This notice (also known as a perform covenant or quit notice) is used when you have a violation of the lease other than non-payment of rent. For example, the tenant may have unauthorized pets in the premises, is creating disturbances, or has sublet to another person without your consent.
Other Notices Other notices include nuisance, illegal purpose, foreclosure, and commercial cases. Make sure you are using the proper forms. Feel free to give our office a call for legal advice regarding and preparation of all notices.
Serving the Notice
Service of any of the above notices may be accomplished in one of three ways:
Personally Each tenant is handed a copy of the notice. Remember to keep the original and serve a copy of the notice.
Substituted Service Service by substitution is completed when a person of suitable age and discretion is given a copy of the notice at the residence and an additional copy is sent to the tenant’s residence address by normal mail.
Post and Mail This is the least desirable, but the most common type of service. Under the “nail and mail” procedure, the notice is posted on the door and another copy mailed the same day by normal mail: certified or registered is not required. This method is used when nobody is found at the premises and you are unaware of the occupant’s regular place of employment.
In the unlawful detainer, the court will require a declaration of service of notice to tenant. The “proof of service” is a written statement, under penalty of perjury, detailing how and when the notice was served. Feel free to give our office a call for legal advice regarding service and preparation of the declaration of service.
Summons & Complaint: Filing and Serving
Once the notice period expires and the tenant has not complied, the landlord may file an unlawful detainer lawsuit against the tenant. It is a package of documents requiring conformity with a slue of technical requirements.
The vast majority of unlawful detainer actions are filed in Superior Court, which has jurisdiction over rents up to $25,000. Once the summons and complaint for unlawful detainer has been filed with the court, it needs to be served immediately by a third party. Our office arranges service through a knowledgeable and efficient process server to avoid errors in service.
The summons and complaint should be served personally. If the tenant is served personally, he or she has five days to apply to the court if they wish to contest the proceedings. In the event we are unable to serve the tenant personally, other methods of service are available.
Substituted service and a court-ordered posting are available as alternatives to personal service. However, by resorting to these alternative methods of service, the court will afford the tenant and unknown occupants an additional ten days to respond.
If there is evidence to suggest undesirable traffic in and out of the premises or additional unknown occupants residing there, it is best to serve a pre-judgment claim of right to possession. This “super service” covers all the John and Jane Does who may or may not be living there and puts them on notice that they need to file a reply to the court in order to be heard.
Our process servers work diligently to effectuate service as fast as possible, frequently on the same day as filed. Our office will keep you fully informed as to the status of service.
Obtaining a Judgment
After the tenant has been served with the summons and complaint for unlawful detainer, she has either five, ten or fifteen days to respond, depending on the type of service, and whether or not we have served “unknown occupants.”
The Default Case
In the majority of cases, the tenant will not respond to the complaint, and after the time period for the response has expired, our office applies to the court for a “default.” In effect, you have won the case by forfeit with regard to possession of the property.
On the morning of the first day following expiration of the response period, we will contact the court to find out whether or not your tenant has filed an answer. If not, we will immediately prepare the necessary documents, which we will send to the court the same day. The court clerk makes an entry into the official court record that the tenant had failed to respond.
In a default case, no appearance by you or the property manager is required. Our office will handle all the paperwork for you. The paperwork we file at this point is to request that the court issue a judgment for possession only as authorized by law. It generally takes four to five days to complete. You will not obtain a money judgment at this time.
Once you have been restored to possession of the premises, our office is then able to go back, with a supplemental declaration in support of judgment, to obtain a judgment of rent that was due to the date of departure by the tenant, including court costs and, in certain cases, attorney’s fees. But this supplemental process is completed after the tenant has already been moved out by the Sheriff.
The Contested Case
The tenant, after being served with the summons and complaint, may file a response with the court within the time period allowed by law. We cannot prevent the tenant from exercising her right to have her day in court. As tenants become more adept at maneuvering the system, we see an increasing percentage of contested cases, even though they have no legal defense. Filing a response does not mean the tenant wins the case – it merely means a further delay to the process.
Once our office learns of the answer, we immediately set the matter for court trial on the first available date. Unlawful detainers are entitled to preference of the calendar and are usually set within 20 days after the period for answering has elapsed.
Our office will notify you or your property manager of the trial date and prepare you thoroughly for the hearing. It will be necessary for the owner or resident manager to be present at trial to testify regardless of whether or not the occupant appears.
In some cases, it is a good idea to settle the case. Settlement may occur at any time before trial including the same day as trial. Frequently, we will enter into a stipulated judgment, that is, a judgment by agreement between the parties, which is also approved by the judge. Typically, the stipulated judgment will provide for possession of the premises on a mutually-agreed date and an amount of back rent and costs owing.
Once the trial concludes, our office prepares the post-trial judgment packet, which includes a judgment after trial by court, cost memorandum, and writ of execution. The judgment is processed by the court and is usually entered within four to five days after the trial, although some courts take longer.
Once the judgment has been entered, either by default or after trial, the final step in the eviction arrives.
Writ of Execution
The Sheriff has the power and duty to enforce court judgments. In unlawful detainer cases, this is done by a writ of execution for possession of the premises, which is a five-day notice to vacate. The writ of execution is issued by the court clerk after the judgment is entered and then delivered to the Sheriff for enforcement.
If the occupants fail to vacate, the Sheriff will physically move them out on the day of the lockout. The Sheriff’s office will contact you to make arrangements to meet at the premises to give you legal possession so you can change the locks, usually one day in advance. The Deputy Sheriff will give you a receipt for possession of the premises. Once this happens, the premises are yours and the tenant has no further right to occupy it.
Claims of Right to Possession
If you did not serve a pre-judgment claim of right to possession as discussed in Obtaining a Judgment, any adult occupant to the premises who was not named in the unlawful detainer judgment and who claims that he or she has been residing in the property before the commencement of the unlawful detainer, can file a claim of right to possession.
If that happens, the lockout will be put on hold – even as to the named defendants – pending a hearing on the validity of the third party claim. The filing of a third party claim will delay the unlawful detainer process about ten to fifteen days. If the claimant loses at the third party hearing – and they usually do – the Sheriff will return the property and this time move everybody out. No further third party claims can be filed.
As stated above, this delay can be avoided by serving a pre-judgment claim of right to possession. Serving a pre-judgment claim form at the beginning of the unlawful detainer case puts everyone on notice to file their claim immediately or they will be unable to do so later. The only downside is that it requires you to wait an additional ten days before requesting trial, or obtaining a default judgment. Give us a call to discuss which option is best for you.
After you have been restored to possession by the Sheriff, you are then able to make the premises rent-ready.
If the tenant leaves personal property behind, you must allow 15 days to claim the property after the Sheriff did the lockout. If the tenant simply moved with no lockout, you must mail a notice of abandonment of personal property to the tenant’s last known address, and allow the tenant 18 days to claim the property.
You are not required to store the personal property in leased premises, but you do have to store it in a safe place during this period. If the property left behind is worth less than $300.00, you may dispose of it after expiration of the above period. However, if the value exceeds $300.00, you must sell the property through public auction after publishing the date of the sale in a newspaper. Call our office regarding this procedure.
If the tenant returns to claim the property, you must return it to him, but you can charge reasonable storage fees. You may not hold the personal belongings as “ransom” for rent even if you have a judgment.
In all cases, it’s a good idea to take pictures of the personal property and write down a complete inventory for your records.
The law requires that you account to the ex-tenant regarding the disposition of the security deposit. Remember that the accounting is necessary even though the tenant (generally) owes much more than the deposit.
When calculating the deductions, first deduct for damages to the premises above ordinary wear and tear, then take cleaning expenses. After that, the balance, if any, goes as a credit against back rent owing. This written accounting must be mailed by normal mail within 21 days after you receive possession of the premises, to the last known address, which will usually be the eviction address. In most eviction cases, this accounting will show that there is a balance due you that exceeds the security deposit.
The unlawful detainer process entitles you to recover possession of the premises and a money judgment. Our attorney-staffed collection division, upon authorization from you, will work on collection by exercising lawful means, including wage garnishment, bank levy, and other attachments. Please contact our collection division for further information.