What is the Eviction Process in California?
An eviction lawsuit is formally referred to as an Unlawful Detainer.
Prior to filing an Unlawful Detainer at the Court the landlord is required to serve a Notice on the Tenant.
Generally a 3-day notice is used when the landlord alleges violation of the rental agreement. The 3 most commonly issued 3 day notices are:
3-day notice to pay rent or quit. A demand that the tenant either pay outstanding rent or vacate the property within 3 days after receiving the notice
3-day notice to perform covenant or quit. A demand that the tenant correct a violation of the lease, repair damages caused by the tenant, cease a nuisance, or instead vacate the property within 3 days of receiving the Notice.
3 day notice to quit. A demand that the tenant vacate within 3 days of receiving the Notice due to an incurable violation of the rental agreement.
A 30-day notice is used to terminate a month-to-month tenancy where the tenant has lived at the property for less than one year. A month-to-month tenancy that has existed for less than one year may be terminated without just cause at the discretion of the landlord. CC § 1946.1
Whereas a 60 day notice is served on the tenant when there is no fault just cause (termination of the tenancy not due to a failure to make payment or violation of the lease by the tenant) only if the tenant has been living at the property for one year or longer and one of the following conditions apply:
1. The landlord or their spouse, domestic partner, children, grandchildren, parents, or grandparents intend to occupy the premises. (Tenancies established after July 1, 2020 may not terminate tenancy for this reason unless the tenant agrees in writing or the Lease allows the landlord to terminate the tenancy for their or their family members occupation of the property).
2. The landlord intends to remove the property from the rental market.
3. The Court, a government agency, or local ordinance orders the occupants to vacate the property.
4. The landlord intends to demolish or to substantially remodel the residential real property.
If the tenant continues to occupy the property after expiration of the Notice the landlord may then file an Unlawful Detainer Complaint against the tenant seeking possession of the property.
The Court implements the following two steps shortly after a landlord files an Unlawful Detainer Complaint:
1. The Court Clerk schedules a Case Management Conference Hearing to occur within 120 to 180 days from the date that the case was filed. The purpose of this hearing is to ensure that the case is progressing. If the landlord has taken no further action with respect to the case by the date of this hearing the case will usually be dismissed. The Case Management Conference is typically removed from calendar after the tenant files their responsive pleading with the court, or a default judgment for eviction has been entered against the tenant. The calendaring of a Case Management Conference will not protect the tenant from the filing a default judgment against them by the landlord if the tenant does not file their response to service of the Unlawful Detainer Summons within their deadline for filing after receiving service of the Unlawful Detainer Summons.
2. The Court Clerk sends a Notice of Unlawful Detainer with a separate Clerk’s Certificate of Mailing by regular mail to the tenant at the property that is subject to the eviction lawsuit. This Notice is sent to the tenant by the court as a courtesy to make the tenant aware that an Unlawful Detainer has been filed. The Notice is usually one page and provides the information for the courthouse where the eviction was filed, the names of the parties to the case, and the Case Number assigned by the Court. The Notice also includes a one or two page certificate of mailing signed by the Court Clerk.
After the case has been filed the landlord is required to have a person who is over 18 years old and not a party to the case serve the tenant with the Unlawful Detainer Summons and Complaint. If the Unlawful Detainer Summons and Complaint is personally served on the tenant a responsive pleading must be filed by the tenant with the Court within 10 business days from the date when the tenant was served with the Unlawful Detainer Summons. (Day 1 of this 10 day deadline begins the first business day after service of the Unlawful Detainer Summons is effected on the tenant.)
If the Unlawful Detainer Summons is served on another adult other than the defendant named on the Unlawful Detainer (substituted service) the tenant will have an additional 10 calendar days from the date that the summons was posted or sent by mail in addition to the established 10 Court days for filing their responsive pleading with the Court. CCP § 415.20
If three unsuccessful attempts are made to serve the tenant with the Unlawful Detainer Summons the landlord may petition the Court for an Order to Post and Serve the Summons by Mail. If the Court issues an Order to Post and serve the Summons by mail the landlord may have service of the Unlawful Detainer Summons effected on the tenant by posting the Unlawful Detainer Summons to the entrance of the property and/or sending the Unlawful Detainer Summons to the tenant by USPS Certified Mail.
If an Order to Post and Serve Summons by Mail is issued by the Court the tenant will have in addition 10 calendar days from the date that the summons was posted to the property or sent by mail in addition to the established 10 Court day deadline for filing their responsive pleading. CCP § 415.45
The landlord may file a Request for Entry of Default Judgment against the tenant if the tenant does not file their responsive pleading with the Court within their deadline for filing after service is effected on the tenant. If a Default Judgment for Unlawful Detainer is entered against the tenant the landlord may then file an Application for Writ of Execution. An Application for Writ of Execution may also be filed with the Court by the landlord simultaneously with the Request for Entry of Default Judgment. Upon approval of the Request for Entry of Default Judgment and the Application for Writ of Execution the Court will then issue an Order for Writ of Possession.
An Order for Writ of Possession is essentially an Order authorizing the Sheriff’s Department to post a 5 Day Notice to Vacate at the entrance of the property. When the Order for Writ of Possession is issued it will be sent to and processed by the Court Services Division of the Sheriff’s Department. When the Sheriff’s Department completes processing the Writ of Possession a 5-day Notice to Vacate will be posted to the entrance of the residence. After this Notice expires the Sheriff’s Department will visit the residence to remove the occupant from the property and stand by as the locks are changed.
However, so long as the tenant files their responsive pleading after service of the Unlawful Detainer Summons, and they file their responsive pleading within their deadline for doing so, the landlord will not file a Request for Default Judgment, if they do, the Request for Default Judgment will be denied by the Court Clerk.
There are four different types of responsive pleadings that a tenant may file in response to an Unlawful Detainer Summons:
1. Answer to the Unlawful Detainer Complaint. This raises any and all affirmative defenses against the allegations contained in the Unlawful Detainer Complaint.
2. Motion to Quash. Challenges the validity of service of the Unlawful Detainer Summons.
3. Motion to Strike. Formal request to remove improper, redundant, or immaterial parts of the Unlawful Detainer Complaint.
4. Motion for Demurrer. Challenges the complaints adherence to the technical civil code requirements that must be met by the Unlawful Detainer Complaint seeking dismissal of the case.
The type of responsive pleading filed by the tenant following service of the Unlawful Detainer Summons determines the timeline of the eviction proceedings.
If the tenant files an Answer to the Unlawful Detainer Complaint with the Court as their responsive pleading after service of the Unlawful Detainer Summons the landlord may shortly thereafter submit their Request to Set the Case for Trial with the Court. The Court Clerk will schedule a bench trial (non-jury trial) to take place 20 days from the date that the landlord files their Request to Set the Case for Trial. CCP § 1170.5
If the tenant files a Motion to Strike, Motion to Quash, or Motion for Demurrer as their initial responsive pleading following service of the Unlawful Detainer Summons on the tenant a hearing on the Motion will be held 5 to 7 days after the date that the Motion was filed. CCP § 1170
If at this hearing the judge overrules the Motion the tenant will be ordered to file an Answer to the Unlawful Detainer Complaint within 5 days from the date of the hearing. If the tenant does not file their Answer to the Unlawful Detainer Complaint within 5 days from the date of the hearing the plaintiff may then file a Request for Default Judgment against the tenant. However, so long as the tenant does file the Answer to the Unlawful Detainer Complaint within 5 days from the date of the hearing the landlord may not be awarded entry for default judgment against the tenant. Instead, the landlord may file a Request to Set the Case for trial. Trial will be scheduled to take place 20 days from the date that the landlord’s Request to Set the Case for Trial was filed. CCP § 1170.5
When the Court Clerk schedules the trial the Court will send a Notice of Unlawful Detainer Trial to the tenant by mail to make them aware of the recently scheduled trial date. It is strongly recommended that tenants call or visit the courthouse to determine whether trial has been scheduled and if so when the trial will take place rather than wait for the Notice of Unlawful Detainer Trial to be received by mail.
If the tenant vacates the property and returns the keys to the landlord before the date of the trial, and the tenant then attends the trial to make the judge aware that the property was vacated and there is no longer a dispute over rightful possession of the property the judge will either dismiss the Unlawful Detainer Case entirely, or order the plaintiff to amend their complaint so that the landlord may sue the tenant for monetary damages, such as unpaid rent, in ordinary civil court. This essentially converts the Unlawful Detainer Case into a civil suit for collection of an unpaid debt, and provides an opportunity for the tenant to avoid a judgment for Unlawful Detainer from becoming entered against them or placed on their records. CCP § 1161
The tenant may also attempt to negotiate settlement terms by entering a stipulation for entry of judgment. The tenant may also contest the case at trial by raising whatever affirmative defenses that they may have. If the tenant prevails in their defense of the Unlawful Detainer the case will be dismissed and the tenant may continue their tenancy at the property. However, if the tenant loses at the trial a judgment for Unlawful Detainer will be entered against the tenant. This will result in the publishing of a judgment for eviction on the tenant’s records, and the Court issuing an Order for Writ of Possession and the subsequent posting of a 5-day Notice to Vacate at the property by the Sheriff’s Department.