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The Eviction Shop » Blog Archive » A Complete Guide to California Eviction Process

A Complete Guide to California Eviction Process

Author: Todd Christiansen | Category: Eviction

Like root canals and tax returns, eviction proceedings are unpleasant but unfortunately sometimes required by California landlords.  Some landlords, unfortunately, forget that, landlording is indeed a business.  Sufficient and consistent cash flow is what all business need to stay in business.  One piece of that cash flow is getting the payments from your customers in a timely and property manner.  Landlords are no exception to this business rule, although their “product” is not really something tangible, but is is very important.

I get many visitors from other states such as Florida, Texas, and California.  Obviously there is not great information on the internet about how to do an eviction in those states.  I did some research into what it takes to evict tenants in California for you.

Disclaimer:  This website is meant for informational purposes, only. The content is based upon my experiences and opinions on doing many Minnesota evictions.  I am not an attorney, CPA, nor expert. Different cities and states will also have different laws, ordinances, and customs regarding the landlord/tenant relationship.  Please consult a competent adviser.

Before starting your eviction process in California, understand that just like most jurisdictions, you as the landlord must follow every step perfectly or risk the judge throwing out your case on a technicality.  You will lose your filing fees and more importantly, you will need to start from scratch on evicting your tenant.

The California Landlord-Tenant Laws
The California Civil Code (“CCC”) and Code of Civil Procedure (“CCP”) contain the state’s entire Landlord-Tenant Code. A little-known fact is that these laws reflect a legislative compromise of sorts. To prevent frustrated landlords from resorting to destructive, disruptive self-help measures, the lawmakers have build the eviction process to be pretty quick and painless to settle disputes.  Because of this, a typical California eviction takes slightly less than one-tenth of the time that ordinary civil suits consume.  In order to benefit from these quicker process, the landlord must follow all the steps perfectly.

Step 1: Eviction Notice Preparation
Just about all valid California evictions start by serving a “3-Day Notice to Quit” on the delinquent tenant. Form 982.1(90) is California’s standardized Unlawful Detainer Complaint. Pursuant to CCP Section 1161(2), this notice to quit must contain:

  • Date of notice;
  • Signature of landlord or his/her duly authorized designee;
  • An explicit demand for an exact sum of money;
  • Complete instructions about where and how it must be paid; and,
  • An unambiguous demand for immediate possession of the tenant fails to pay all past due amounts within three days of receiving this notice.

Step 2: Notice service
CCP Section 1162 allows 3-day notice service by:

  • Personal delivery to the tenant;
  • Delivery to any other adult of suitable discretion found upon the premises; or
  • Conspicuous posting on the rented premises.

Landlords opting for service via either of the two latter methods must also mail of a full copy of the notice addressed to all lessees at the property’s street address.  Be careful on this step as many landlords will cut corners or not understand the process service.  While the statute does not spell it out, I recommend that you have a professional process server or sheriff deliver the documents.  That person should then sign an affidavit specifying when and where they served the document.  Bring this with you to court so that there is very little chance the tenant could claim that you did not serve them properly.

Step 3: Complaint Preparation
If the tenant fails to pay all past-due amounts by the 3-day deadline, the landlord must file a “Complaint” in the appropriate California Superior Court. All relevant details surrounding the situation must be fully and accurately stated on the eviction documents.  Unfortunately, I was unable to find an electronic copy of California eviction form on-line to link to.  A fee of $240.00 must accompany this filing.

Step 4: Summons issuance
Upon complaint filing and fee payment, the Superior Court Clerk will prepare and issue an Unlawful Detainer Form 982(a)(11) Summons. This document provides the tenant with official notice that an Unlawful Detainer action has commenced and how to respond to it.

Step 5: Service of Summons and Complaint
The Sheriff, a professional process server, or other non-interested legal adult must then serve the tenant with both the Summons and Complaint. State law allows the tenant five days within which to answer the Complaint.

The importance of doing the Summons and Complaint service properly cannot be overstated. In fact, this technicality is so essential that professional process service is virtually indispensable as I mentioned above.  While the California Landlord-Tenant law allows any mentally competent legal adult who has no interest in the litigation to execute service of process. Despite this, the cost of engaging an expert process server is minuscule when compared to the consequences of adverse court rulings due to legally defective notice to delinquent tenants.

Complaint contents
The Complaint is the formal document that initiates a lawsuit and informs other party(ies) and the Court of the specific legal grounds for the landlord’s claims and requested relief. Thus, strict procedural rules apply to its proper preparation and service. To avoid summary court dismissal, a complaint must contain, at a minimum:

  • All surrounding circumstances leading up the claim(s) asserted;
  • Method by which the 3-day notice was served and a copy thereof;
  • A copy of the original lease or Rental Agreement;
  • Itemized accounting of all delinquent amounts due; and,
  • Formal request for judgment awarding full monetary compensation and immediate possession of the premises.

Experienced California landlords also serve a “Prejudgment Claim of Right to Possession” along with the Summons, Complaint, and any accompanying exhibits. This form negates any potential claims by unknown premise occupants.  In other words, if there is someone living in the property that you don’t know about (who is not on the lease), they can’t come back after the eviction and say that the eviction was invalid because the landlord did not notify them also.

Step 6: Trial demand
Roughly one-third of all California Unlawful Detainer suits go to trial. The means that the tenant must official protest forced removal from a rented home by filing an “Answer” to the landlord’s Complaint.  Fortunately, most tenants go through the process without an attorney and their “answers” represent mere attempts to stall. Consequently, most Answers are dismissed or otherwise resolved in the landlord’s favor.

After being served with a tenant’s Answer, the landlord must file a formal Request for Trial Setting by completing a standardized Judicial Council Form. By law, the trial must commence within 20 calendar days of the filing of this request.  In most cases, the judge is the sole case arbiter who hears all evidence presented at the trial. Occasionally, however, tenants demand trial by jury. In such cases, the landlord should immediately find a good eviction attorney.  This is not the time to try and figure this out alone.

Step 7: Pre-trial settlement conference
After either party files a Request for Trial, the court will usually schedule a “Settlement Conference.” This information meeting gives the parties a chance to attempt amicable dispute resolution via negotiation.  This may include a payment agreement or allowing the tenant to move out immediately.

Step 8: Eviction
After completing all the above steps, if the landlord wins his case, a California landlord may request a Writ of Possession. This court order gives the landlord the legal right to immediate repossession of the leased premises.  Most tenants are long gone at this point. In those rare instances involving persistent deadbeat occupants, the landlord must present the Writ of Possession to a local constable, marshal, or sheriff. That official will then physically evict all occupant(s) from the premises.

Petition for Default Judgment
If the tenant fails to respond to a properly served Summons and Complaint within the legally allotted time, the Court will issue a default judgment against the tenant(s) after the landlord fills out the Request for Entry of Default document.  Final Default Judgment entry precludes any subsequent tenant protest or defense presentation against the landlord’s initially allegations. It also automatically grants all legal relief the landlord initially requested.  Keep in mind that this judgement and the writ are only for taking back possession of the property.  It is NOT for getting your money back.

Writ of Garnishment
After regaining possession of their premises, landlords may request file a Declaration in Lieu of Personal Testimony.  This is essentially a summary of the eviction and other details to convince the judge to issue a judgement for the money owed.  Once you obtain this, you can file a Writ of Garnishment. This court order enforces all monetary judgment(s) by compelling employers to withhold a portion of the former tenant’s wages. Entry of either a Default Judgment or Writ of Garnishment in public records puts an immediate and severe blot on the tenant’s credit report for up to seven years.  Unfortunately, I have been told that getting a Declaration in Lieu of Personal Testimony is very difficult and if often rejected for trivial mistakes in the paperwork or the original court case.  There is a story of an attorney in San Francisco trying for 3 years to get a Declaration done with no success.

Most landlords will actually take a different tact.  Once they have possession of the property back, they will file a dismissal of the unlawful detainer and the go to small claims court to get a judgement against the deadbeat tenant.  The bar is much lower in that court and you will always have an opportunity to get a decision on your case (instead of the constant paperwork battle of a Declaration).  The biggest challenge with small claims court is finding that newly evicted tenant to serve them the court papers.

Evicting a tenant in California is very similar to the process in other states.  You need to follow the letter of the law closely and ask questions along the way.  Good luck!

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