A notice to vacate is the first step in the eviction process in California. What happens once the notice is served largely depends on the tenant. If the tenant complies with the notice, no further action can be taken by the landlord. If the tenant does not comply with the notice, the landlord must secure a court order directing the tenant to move out. The eviction process is a complicated one and the stakes are high for both the tenant and the landlord. Tenants should immediately seek the advice of an attorney if served with a notice to vacate.
Understanding the Contents of the Notice
It is important to carefully read the contents of the notice. Most notices give the tenant the option of doing something or moving out by a particular date. The alternative to moving out is usually to pay rent. The vast majority of notices provide that the tenant has three days to comply or move out. Some notices do not provide an alternative to moving out. Such a notice may direct the tenant to move out within three days, 30 days, 60 days or 90 days. If the tenant complies with the demand to do something or moves out, the eviction process ends.
Initiation of the Eviction Lawsuit
If the tenant does not comply with the demands of the notice to vacate, the landlord can file an eviction lawsuit. Once filed, the landlord must have a copy of the lawsuit paperwork served on the tenant. Unlike with the notice to vacate, the landlord is not allowed to serve the tenant himself. Instead, the landlord must have a person at least 18 years old serve the paperwork.
Time to Respond
The tenant must be afforded the opportunity to respond to the lawsuit paperwork by contesting its contents. Generally, the tenant has five court days to file a response. However, if the paperwork was mailed to the tenant, the tenant is given 15 days to file a response. If the tenant fails to respond, the landlord automatically wins the lawsuit.
If the tenant files a response to the lawsuit paperwork, the landlord must ask the court clerk to set a trial date. Once a trial date is scheduled, the court clerk will mail a notification of the time and place for trial. The trial begins with the landlord explaining to the judge why the tenant is being evicted and what steps the landlord has taken to evict the tenant. If the landlord has not followed the eviction process properly, the court can dismiss the case. The tenant is then given an opportunity to respond to the landlord's allegations. At the conclusion of the tenant's presentation, the judge renders a judgment. If the judge finds for the tenant, the eviction process ends. The majority of eviction trials take less than five minutes.
Writ of Possession
If the landlord prevails, whether after trial or because the tenant did not file a response in time, the landlord must have the court issue a writ of possession. The writ of possession is the official document that gives the landlord the right to retake the premises. The landlord must deliver a copy of the writ to the county sheriff or marshal. The sheriff or marshal then serves the writ on the tenant. The writ orders the tenant to move out of the premises within five days. The sheriff or marshal will return to the property after the five-day period has expired and will physically remove the tenant from the premises if the tenant has not left. It is customary for the landlord to meet the sheriff or marshal with a locksmith, who will immediately change the locks.
- "California Eviction Defense Manual"; Continuing Education of the Bar; 2010