How Long Do I Have to Respond to an Unlawful Detainer Summons?
After the filing of an Unlawful Detainer Complaint with the Court the landlord is required to have an individual who is 18 years old or older, and who is also not a party to the case serve the Unlawful Detainer Summons on the Tenant.
If the process server hands the Unlawful Detainer Summons to the tenant, or leaves the Unlawful Detainer Summons with the tenant the tenant must then file a response to the Unlawful Detainer Complaint either as an Answer to the Complaint, a Motion for Demurrer, a Motion to Strike, or a Motion to Quash within 10 days from the date that the documents were handed or left with the tenant in order to prevent entry of default judgment from becoming entered against the Tenant and a subsequent Sheriff’s Lockout from taking place. AB 2347
This 10 day deadline begins the first court day after the day that the Unlawful Detainer Summons was served on the tenant.
The process server must make a reasonable effort to personally serve the Unlawful Detainer Summons on the Tenant (reasonable effort is usually considered at least 2 or 3 separate attempts). If each of these attempts to effect personal service of the Unlawful Detainer Summons on the Tenant are unsuccessful the process server may then serve the Unlawful Detainer Summons on the Tenant by handing or leaving the documents with a responsible person who is 18 years old or older at the tenant’s residence, or at the tenant’s place of work. The process server must explain to the person who they leave the Unlawful Detainer Summons with that the papers are legal documents for the tenant. This is considered substituted service.
If the Unlawful Detainer Summons is served by substituted service the Tenant has 10 court days beginning the first Court day after the date that the documents were left with an adult at the tenant’s residence or place of work, and also an additional 10 calendar days to file their response to service of the Unlawful Detainer Summons to prevent Entry for Default Judgment and an ensuing lockout. CCP § 415.20
If the process server takes reasonable efforts to effect personal service of the Unlawful Detainer Summons, and they are unable to locate the Tenant or another adult at the Tenant’s residence or place of work to serve the documents on, the landlord may file an Application and Order to Serve Summons by Posting for Unlawful Detainer with the Court to request permission from a judicial officer to post the Unlawful Detainer Summons at the entrance to the tenant’s residence, and also send a copy of the Unlawful Detainer Summons to the tenant by USPS Certified Mail.
If the Court grants an Order to Serve Summons by Posting the service of the Unlawful Detainer Summons is considered effected on the tenant and complete 10 calendar days after the date that the Unlawful Detainer Summons was posted to the entrance of the Tenant’s residence and sent by USPS Certified Mail. After these 10 calendar days have passed the tenant has an additional 10 Court days to file their response to the Unlawful Detainer Complaint to prevent Entry for Default Judgment for Eviction and a Sheriff’s Lockout. CCP § 415.45
- Important Notes on Service of the Unlawful Detainer Summons on the Tenant -
After service of the Unlawful Detainer Summons has been effected on the tenant the landlord must file Proof of Service with the Court. The Proof of Service is essentially a form featuring the process server’s attestation that they did in fact serve the Tenant with the Unlawful Detainer Summons. The Proof of Service provides either the name or description of the person who was served with the documents, and the place, date, and time that service of the Unlawful Detainer Summons took place. Often, the landlord will hold onto the Proof of Service and then file it at the same time that the landlord files their Request for Entry of Default Judgment after the tenant’s deadline for filing their response to the Unlawful Detainer Summons has passed.
A process server may have completed a Proof of Service claiming to have served the tenant with the Unlawful Detainer Summons, but the Court may not have any record of the Proof of Service until the landlord files the Proof of Service with their Request for Entry of Default Judgment with the Court.
If a tenant learns from the Court Clerk that Proof of Service for Service of the Unlawful Detainer Summons has not yet been filed this does not necessarily mean that a process server may not have already inaccurately claimed to have served the tenant with the Unlawful Detainer Summons. The process server may have completed and provided the landlord with Proof of Service that erroneously states that the tenant was served with the Unlawful Detainer Summons when, in fact, the tenant was not served with the documents. The landlord may hold onto the Proof of Service and wait until 10 days have passed from the date that the process server claimed to have served the Unlawful Detainer Summons on the tenant before filing the Proof of Service and the Request for Entry of Default Judgment with the Court simultaneously.
Occasionally, a process server will either mistakenly or dishonestly claim that the tenant was served with an Unlawful Detainer Summons when they were not. The process server may also provide an inaccurate date for when service of the Unlawful Detainer Summons was effected on the Tenant. If this happens, and the landlord inappropriately files a Request for Entry of Default Judgment and a Judgment is awarded against the tenant the tenant may file an Ex-Parte Motion to Set Aside Judgment Caused by Mistake, Inadvertence, Surprise, or Excusable Neglect with a Proposed Answer to the Unlawful Detainer Complaint to schedule an emergency hearing referred to as an ex-parte hearing that typically takes place within 3 days after filing the Motion. In the Motion for Ex-Parte and at the hearing on the motion the tenant may argue that service of the Unlawful Detainer Summons was invalid, and present any available evidence establishing that service of the Unlawful Detainer Complaint was not effected as described by the Process Server in the Proof of Service that was filed with the Court.
If the Tenant prevails at the Hearing on the Ex-Parte Motion to Set Aside Judgment the judge will vacate the judgment entered against the tenant and schedule a trial date. Alternatively, if the Ex-Parte Motion to Set Aside Judgment is overruled at the hearing the Judgment against the tenant will not be set aside, and the landlord may proceed in their efforts to secure a Sheriff’s Lockout to take place at the residence.
A tenant who suspects that an Unlawful Detainer Complaint may have been filed against them, or a tenant who has received a Notice of Unlawful Detainer in the mail from the Court, may visit the civil filing window at the local courthouse closest to their residence (or the Courthouse addressed on the Notice of Unlawful Detainer to ask a Court Clerk if the Court’s records reflect that an Unlawful Detainer Complaint has been filed against the tenant by providing their name and address or presenting the Notice of Unlawful Detainer received in the mail to the clerk. If the Court Clerk finds that an Unlawful Detainer Complaint has been filed against the tenant the tenant may collect a copy of the Unlawful Detainer Complaint from the Court Clerk and use the content of the Unlawful Detainer Complaint to prepare and file their responsive pleading.
A tenant should not wait to file their response to the Unlawful Detainer Summons until after Proof of Service has been filed with the Court. It is also not necessary for a tenant to wait to file their response to the Unlawful Detainer Summons until after they are served with the documents. To prevent the potential improper filing of a Request for Entry of Default Judgment a tenant may file their responsive pleading to an Unlawful Detainer Complaint as soon as possible after learning that an Unlawful Detainer has been filed and they have gathered a copy of the Unlawful Detainer Complaint from the Court.
Collecting a copy of the Unlawful Detainer Complaint from the Court Clerk does not qualify as effecting service of the summons on the tenant, and does not formally begin the 10 day deadline for filing a responsive pleading.
It is possible, but not common for a Court Clerk to ask for proof of Identification or proof of address in order to release a copy of the Unlawful Detainer Complaint to the Tenant. If a tenant has received a Notice of Unlawful Detainer in the mail from the Court and they present that Notice to a Court Clerk this should serve to verify the identity of the tenant so that they may collect their Unlawful Detainer Complaint.
By filing a response with the Court without first receiving service of the Unlawful Detainer Summons a tenant protects themselves from the potential improper filing of an Entry for Default Judgment against them if a process server claimed to have effected service of the Unlawful Detainer Summons on the wrong date, or if a process server claims to have served the Unlawful Detainer Summons on the tenant when, in fact, the process server did not.