In the state of California, the eviction process involves a number of steps that must be taken in the correct order. First, the landlord gives written notice of the eviction to the tenant. The landlord may give the tenant a three-day, 60-day or 90-day notice. Then, the landlord must complete the eviction forms. The third step is for the landlord to file an unlawful detainer case with the court.
The landlord then must serve the documents in an unlawful detainer case to the tenant and file the proof of service form with the court. If the tenant chooses to respond to the complaint, the court holds the eviction trial and makes a judgment on the case. If the court rules for the landlord, it will issue an order giving the landlord the right to have the unit back from the tenant.
Who Can Give Proper Notice
A landlord, friend or process server can serve notice on a tenant. The individual that serves the notice must be at least 18 years old. The methods of service include: personal service, which is giving the notice directly to the tenant in person, and substituted service, which is leaving the notice with a member of the household where the tenant lives who is at least 18 years old.
The landlord must also mail a second copy to the tenant at the rental property. The effective date is the day of mailing of the second copy.
A landlord can also post and mail the notice. This method, called “nail and mail,” involves taping or nailing the notice to the front door or at a spot where it can be seen easily. The notice is considered served the day of mailing of the copy of the notice. For both substituted service and nail and mail, the landlord starts counting the notice period the day after mailing.
Unlawful Detainer Action
A landlord must wait until the appropriate notice period is up to see if the tenant complies with the request within the allotted time period. Typically the request is to pay the unpaid rent. If the tenant does not comply with the request, the landlord should file an unlawful detainer lawsuit in order to evict the tenant and receive back rent. If the landlord files the eviction case in court before the notice runs out, the court will dismiss the case.
For purposes of counting, the first day is the day after the notice is served. After that, the landlord counts every day on the calendar. For a three-day notice to pay rent or quit or a three-day notice to perform or quit, the landlord should not count Saturdays, Sundays or court holidays.
When Notice Isn’t Required for a California Eviction
There are a few exceptions to the requirement for notice before filing an unlawful detainer action. If a tenant has a fixed term lease and the lease is up, the landlord can file an unlawful detainer action without giving notice first.
If the landlord accepts rent after the lease runs out, they create a month-to-month tenancy. This is true despite what the original rental agreement states. It takes notice to terminate a month-to-month tenancy.
If a landlord accepts the tenant’s notice to end the lease, the landlord can file an unlawful detainer case if the tenant refuses to vacate right away. If the tenant works for the landlord and lives on the property to do their job, the landlord can file an unlawful detainer case as soon as they terminate the tenant's employment or the tenant quits. If the landlord accepts rent from the individual after termination for a new lease period, this creates a month-to-month tenancy.
Serving Unlawful Detainer Papers
The landlord must have the tenant served with the summons and complaint in an unlawful detainer action. The landlord cannot serve the summons and complaint themselves, even if they served the notice. If there are other people living in the unit that are not included in the complaint, they do not have to leave if the court orders the named defendants to move out. The sheriff will not evict these unnamed individuals, so the landlord may have to file another eviction lawsuit to recover possession of the unit.
If the landlord discovers additional occupants in the rental unit, the server can serve each of them with a prejudgment claim of right of possession and copies of the summons and complaint. The prejudgment claim form gives the other occupants 10 days to tell the judge they retain the right to live on the property. If these individuals do not file any documents, the sheriff will evict them if the landlord wins.
Wait for Tenant’s Response
A tenant can offer no response or respond by filing an answer in court or with another legally valid paper. If the landlord served the tenant in person, the tenant has five days to respond. The landlord should not count Saturdays, Sundays or court holidays. If the landlord served the tenant by substituted service, the tenant has 15 days after the date the server mailed the court papers.
For the first 10 of the 15 days, the landlord should count regular calendar days, including weekends and holidays. On the 10th day, service is complete. The landlord should then count five court days to give the tenant time to respond.
The landlord should not count Saturdays, Sundays or court holidays for these court days. If there is more than one tenant in the unit, there could be different deadlines for their responses. The landlord may have served the tenants in different ways or on different days.
Court Process if No Response From Tenant
When a tenant does not file a response to an unlawful detainer action within five days, the landlord may be able to evict the tenant. If the tenant owes money for back rent and does not answer, the landlord can move to garnish the tenant’s wages or take money from their bank account. The tenant will have an eviction on their record, and it may affect their credit record.
A landlord starts the process of receiving back rent by submitting a motion for the court to make an order in the landlord’s favor. This order is called a default judgment. If there are multiple defendant tenants in the case, the landlord should ask for a default judgment against all tenants that have not responded. If the landlord does not ask for a default judgment immediately, the tenant has more time to answer.
A landlord who wants to get an order giving them possession of the property right away should ask for a form called Clerk’s Judgment for Possession. The landlord cannot include back rent in the Clerk’s Judgment, but they can later ask for a judgment that includes back rent and court costs.
When the Tenant Responds
A tenant who responds must send the landlord a copy of the response. A tenant typically responds with a document known as an answer. If they think the landlord’s complaint or service of the complaint is defective, they may file a motion to quash, or void, the service. They can also file a demurrer, which challenges the service or the complaint.
If the tenant files a motion to quash or a demurrer, the landlord should speak to an attorney about addressing any problems with the case. If the tenant files an answer, the landlord should file a request to set the case for trial, known as unlawful detainer. The landlord will need to serve the tenant by mail with a copy of the request and have the server fill out the proof of service on the back of the request.
Unlawful Detainer Trial
A week after a California landlord files a request to set a case for trial, the clerk mails the tenant the information about the date of the trial. The trial will take place within 20 days. The landlord and the tenant each have a right to a jury trial, and the side that wants the jury trial must pay $150 for court fees. Some counties require the parties to attend a mandatory settlement meeting before a jury trial.
Both sides should prepare for trial by gathering copies of all the information related to their case. This includes the rental agreement, the notice served on the tenant, letters written and received about the unit, photos that show damage to the unit, photos that show unsafe or unhealthy conditions and building inspection reports, if applicable. Both sides can bring witnesses who have personal knowledge of the facts.
At the trial, the plaintiff, who is the landlord, will usually speak first. Then the tenant explains their side. The judge may ask both sides questions at any time and review evidence that the parties present. The judge will then make a decision.
After the Trial
If the landlord wins, the judge will give the landlord a judgment of possession. The landlord must then have the court clerk issue a writ of execution. They take the writ to the sheriff who will then serve the tenant with a notice to vacate the property. The notice gives the tenant five days to move out. If the tenant does not move, the sheriff will remove the tenant from the rental and lock them out.
The judge may order the tenant to pay back rent, damages and costs such as filing fees and attorney fees, if this is in the rental agreement. If the tenant was in the unit illegally, the landlord can get the money for the time that the tenant illegally occupied the unit. If the court finds the tenant stayed in the unit to be mean, spiteful or to make the landlord suffer, it may order the tenant to pay a penalty of up to $600.
If the tenant wins, they retain the legal right to stay on the property. The judge may order the landlord to pay the tenant’s costs, like filing fees and attorney fees, if this is in the rental agreement. The judge may also decide what amount of rent the tenant has to pay.
Appealing the Judgment
A party who is unhappy with any part of the judge’s order can appeal the ruling. They can also file a motion to set aside the judge’s order. If a tenant loses, the eviction does not stop, but the tenant can delay the eviction by requesting a stay of execution.
Stays of Execution
A tenant can file a stay of execution when they receive a notice from a sheriff that gives them five days to leave the unit. The length of time a tenant can remain in the unit depends on the county and the case. The tenant must pay rent for the time they remain in the unit. There are no forms for a stay of execution. A tenant should talk to a lawyer about how to take this legal action.
Collecting the Judgment
When a party wins an unlawful detainer case, the judge will issue a judgment in their favor. The party can begin collecting their judgment as long as the judgment has been entered and there is no stay on enforcement of the order. There can be a stay if either party appeals or if the tenant has an automatic stay issued in their bankruptcy case.
The court does not collect the money for the winning party. A party who is owed money should give the debtor an address where to send money; write a letter and include a copy of the court order; or talk to a collections attorney about options like wage garnishment. A party who agrees to accept less than the whole judgment gives up their right to the rest of the money. A judgment will expire in 10 years.
COVID-19 Eviction Rules
California law provides protections for renters in COVID-19-related financial distress until September 30, 2021. The law protects renters that were given eviction notices because they are unable to pay rent or other charges due to COVID-19. Other evictions of residential tenants must be based on just cause.
California now has a rental assistance program to pay landlords the rent due between March 1, 2020 until September 30, 2021 and beyond for qualifying tenants. A county or city may have additional local protections for renters related to the COVID-19 pandemic.
- Communicate with your tenant only in writing after you have given him notice of the eviction.
- If you fail to show up for the eviction hearing, your tenant may be allowed to stay on the premises.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.