California Residential
Eviction Procedure Summary
Revised March 21, 2011
© 2011
Landlord.com.
All rights reserved.
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From its inception, the government of the
State of California has sought a monopoly on
the use of force in the day-to-day dealings
of its citizens, as have all governments and
rightly so. One of the areas in which this
monopoly is prominent is in the unlawful
detention of real property. Real estate
does not move much, except for tracts that
are near the San Andreas and other
earthquake faults. This means that it
cannot be picked up and carried off and so
does not lend itself to casual theft. It
can be stolen in effect, though, as when a
person unlawfully withholds its possession
and use from its owner. The problem comes
when the owner demands possession and the
tenant resists. The occasion for physical
violence is apparent due to the inherently
large stakes involved.
It is in this conflict that California’s
eviction remedy intervenes and the power of
the state is exerted to resolve the
conflict. In a sort of tacit exchange,
California proscribes self help, and offers
instead an expedited and fairly
straightforward remedy occupying a series of
pages in the Civil Code and Code of Civil
Procedure. This remedy does not rely on a
court’s inherent power to resolve disputes.
It is completely dependent on the statutes
that create it. For this reason the
statutes must be complied with to the
letter. Any failure to do so is usually
fatal to the landlord’s plea for relief.
The typical eviction proceeding takes a
tenth or less of the time that a typical
civil action takes. The prescribed remedy
is both complete and draconian. It is the
root canal of landlord-tenant law. While a
root canal is hardly pleasant, it can
prevent the loss of a tooth, which is less
pleasant still. Similarly, an unlawful
detainer – eviction – can prevent the loss
of a piece of real estate when a tenant is
not paying rent, damaging the property’s
improvements, or otherwise jeopardizing the
owner’s ability to continue to hold the
property.
Because a tenancy is a property interest,
deprivation of this interest, i.e.,
eviction, requires due process of law in our
jurisprudence. This means notice and an
opportunity to be heard, hence, the unlawful
detainer proceeding in superior court, which
we outline here. The reader should be aware
that this is only an outline. Reality has
an infinite number of permutations.
However, at the level of detail we will be
dealing with, all eviction cases fit this
general model. If you are interested in a
more detailed treatment, you will find it
here at our store. You will also find a
chart setting out the salient points of
statutes and judicial decisions that deal
with eviction proceedings and
landlord-tenant law in
general here.
Notice
Most all evictions in California depend on
some initial notice demanding that the
tenant do something or stop doing something
or, in the alternative, vacate. The
exceptions are situations in which a fixed
term lease expires by its own terms and is
not renewed or cases where an employee who
is given a right to occupy a premises as
part of his employment is terminated. A
similar remedy beyond the scope of this
summary, for forcible entry or detainer,
also requires no written notice, although a
five day demand for possession is required
to perfect a cause of action for forcible
detainer, and it is usually made in
writing.
The most common reason for eviction is the
failure of a tenant to pay rent. This sort
of case is begun with a
3-day notice to pay the rent or vacate
the property. The exact contents of the
notice are covered at CCP Section 1161(2).
The notice must include a demand for the
precise amount due, with instructions on
where to pay it, an unequivocal demand for
possession if the rent is not paid within
three days of service of the notice, the
date of the notice and the signature of the
landlord or an agent for the landlord. No
particular format is required, but we offer
a time tested one that you can find
here.
The rent must actually be in default, which
means that the notice cannot be served
validly until the grace period, if any, has
expired. There is authority for the
proposition that if the rental agreement is
in writing, other amounts due, such as late
charges, may be included in the demand of
the rent notice. We take the position that
this is unwise as it unduly complicates
matters over amounts that are usually
trivial compared to the rent. Also, recent
amendments to the relevant statutes call the
older authority into question. A separate
notice described below can be served for
these other amounts if desired, which will
keep things clean. The demand must state
the precise amount due, that is, not exceed
it by so much as a penny in residential
cases, although judges will not penalize a
landlord who understates the rent, so it
pays to be conservative.
These notices also usually declare an
election of forfeiture of the tenancy.
Occasionally this is omitted if the landlord
has a reason to do it. Failure to declare a
forfeiture gives the tenant a right to
redeem his tenancy by paying all past due
rent and costs within five days of entry of
an eviction judgment against him. So be
sure your reason for omitting a declaration
of forfeiture is a good one.
A cousin of the rent notice is the
3-day notice to perform a covenant of
the written rental agreement or vacate.
This might be a notice for the payment of
late charges or utilities, or it might have
to do with some non-monetary obligation,
such as one forbidding subletting or
assignment. This type of notice also
demands performance or surrender of
possession in the alternative similarly to a
rent notice. There is a line of authority
holding that if the covenant can no longer
be performed a simple notice to vacate is
sufficient. We almost never recommend this
course as whether a covenant may be
performed is not always obvious and can be a
matter of disagreement. If you give the
notice to vacate only and you end up before
a judge who disagrees, you may have to start
all over again. Our notice to perform a
lease covenant can be
found here. These notices also
characteristically declare a forfeiture.
There is a class of notice that, by statute,
does not require extending the tenant an
opportunity to cure. These 3-day notices
demand possession from a tenant who is
committing a nuisance on or waste of the
premises. The commission of either of these
terminate the rental agreement
automatically, so no opportunity to cure is
necessary, only a demand for possession.
Both “nuisance” and “waste” are legal terms
of art. A landlord who believes his tenant
may be committing either of these should
engage a lawyer’s services.
Next to the non-payment of rent notice, the
most frequently used one, in our experience,
is the 30- or 60-day notice of termination
of tenancy. These are used to terminate
periodic tenancies, that is, those that have
no fixed expiration date, but proceed from
month-to-month usually, but sometimes
week-to-week, etc., until either party
decides to terminate it. If the tenant has
resided on the premises for less than a
year, his tenancy may be terminated on
30 days notice. If he has resided on
the premises for a year or more, he must be
given
60 days notice. In cases of subsidized
housing a 90-day notice must be given.
Because the termination is of a non-default
nature, there is no forfeiture, and the only
notice requirement, other than the formality
of date and signature, is that there be an
unequivocal expression of the intent to
terminate and a demand for possession in the
prescribed time. Our forms of these notices
can be found here. Calif
30-
60 notices, A 30-day notice can also be
used to terminate other forms of tenancy,
such as tenancies at will or at sufferance.
Giving more time than the statute requires
is not fatal, though it wastes a little
time, but not giving at least the full
statutory notice is fatal.
It is not uncommon for a property that has
been foreclosed to be found occupied, either
by the foreclosed owner or by his tenant.
This situation is covered by CCP Sec. 1161a
and following. The erstwhile owner may be
given a three day notice to vacate. A
tenant in possession must be given 30, 60,
or 90 days notice to vacate. This type of
notice has been complicated substantially by
recent amendments to the statutes. If you
are in a position of having to do an
eviction after foreclosure, we strongly
advise obtaining the services of a lawyer.
The notices we have described here must be
formally served on the tenant. The method
of service is prescribed by statute, and the
simplest way to cover this is just to quote
it.
CCP Section
1162. The notices required by Sections 1161
and 1161a may be served, either:
1. By
delivering a copy to the tenant personally;
or,
2. If he
or she is absent from his or her place of
residence, and from his or her usual place
of business, by leaving a copy with some
person of suitable age and discretion at
either place, and sending a copy through the
mail addressed to the tenant at his or her
place of residence; or,
3. If
such place of residence and business can not
be ascertained, or a person of suitable age
or discretion there can not be found, then
by affixing a copy in a conspicuous place on
the property, and also delivering a copy to
a person there residing, if such person can
be found; and also sending a copy through
the mail addressed to the tenant at the
place where the property is situated.
Service upon a subtenant may be made in the
same manner.
30-, 60-,or 90-day notices terminating
periodic tenancies may also be served by
certified mail addressed to the tenant at
the rental unit.
Summons and Complaint
Upon expiration of whatever notice has been
served, and if the tenant has failed to
comply with it, the Unlawful Detainer, i.e.,
eviction proceeding, may start in Superior
Court. This is accomplished by the landlord
filing a document referred to as a
Complaint, and having the clerk issue a
summons. The Summons is simply a court
process that confers jurisdiction and
requires the person served to respond within
five days.
Because an Unlawful Detainer is not a
general civil action but a special
proceeding, the content of the Complaint and
the relief demanded are limited. In a
nutshell, the Complaint contains language
that identifies the parties and the property
involved, describes with particularity the
circumstances of the unlawful detention of
the property, states the method by which the
eviction notice was served and includes a
copy of it and usually a copy of the rental
agreement, describes the monetary damage
being suffered, and includes a description
of the relief demanded. The demand will
include unpaid rent if it is a nonpayment of
rent case, or only the daily rental value of
the property from the expiration of the
eviction notice if the reason for the
eviction is something other than nonpayment
of rent.
Increasingly, landlords are serving, in
addition to the Summons and Complaint, a
document called a Prejudgment Claim of Right
to Possession. This will be described in
more detail below. For now, just be aware
that it heads off potential claims to
possession of the property by unknown
occupants.
Service of the Summons and Complaint must be
accomplished before any other steps may be
taken. This is almost always accomplished
by a registered process server. This is
such a critical step in the proceeding that
there is no substitute for the employment of
such a professional who is familiar with all
of the different ways service of process may
be accomplished, although any mentally
competent adult may effect service provided
he is not a party to the proceeding.
Default
If your tenant is served with the Summons
and Complaint and fails to respond to it
within the time permitted by law, his
default may be entered. A default precludes
the tenant from participating in the
proceeding and permits the clerk to enter a
judgment for possession of the property at
once. This judgment is separate from
whatever judgment for money you are asking
for, and is designed to restore the landlord
to possession of the property as quickly as
possible.
Defaults do not enter themselves. A default
and clerk’s judgment must be requested by
the landlord. Uniformly, courts require the
preparation and filing of a Judicial Council
form titled Request for Entry of Default,
and declarations under penalty of perjury
describing the method and date of service of
the Summons and Complaint. The portion of
the request form for the clerk’s use is
completed by the clerk and the default is
then formally entered. From this point the
practices in the various superior courts and
even in the different branches of the same
court may vary, depending on how busy the
court is, and other matters. If you are
handling this yourself you should contact
the civil division of the court you are
involved with and find out what their
preferred practices are. It is always a
good idea to comply with the wishes of
someone you are asking to help you if at all
possible. If a lawyer is handling your
matter, he will be well versed in the
practices of the court.
Once the default and clerk’s judgment are
entered, you can obtain a Writ of Possession
and instruct the sheriff or marshal
responsible for performing evictions to
perform the physical eviction, a procedure
we will describe below.
At this point you will have a judgment for
possession, but your money judgment will be
in limbo. We recommend waiting to get the
money judgment until after the property is
restored to you. You should account for the
security deposit before you apply for the
judgment in any event and knowing when you
got the property back and how much of the
deposit can be applied to things like unpaid
rent will simplify your attempt to obtain a
money judgment.
It is possible to obtain a judgment for
money owed and expenses of filing and
process service in an unlawful detainer that
has gone by default. This entails the
preparation and filing of a document
referred to as a Declaration in Lieu of
Personal Testimony, which will set forth all
of the competent evidence necessary to
convince the judge who reviews it to order
entry of judgment in your favor. This
procedure is not as simple as it sounds, and
we have seen such declarations rejected for
trivial mistakes. Your writer, when
practicing law in San Francisco, once
struggled for three years to obtain a money
judgment by default, and never did quite
succeed. These applications are screened by
clerks before being submitted to a judge.
Clerks, sadly, are often not very well
instructed. On some occasions, as in the
one just mentioned, a set of documents that
resulted in a judgment in the past would be
rejected by a clerk with an instruction to
me to make some revision. The revision
would be made and the documents resubmitted,
but would find their way to a different
clerk. This clerk would reject them with an
instruction to make a revision that put the
papers back into their original condition.
The turn around on money judgments was about
4 to 5 months, and paperwork ping-ponged
back and forth in this fashion for about
three years. This is not a joke, it is a
fact of life.
Rather than play this costly game of
ping-pong, many landlords prefer to dismiss
their default unlawful detainer proceeding
without prejudice once possession has been
obtained and file a proceeding in Small
Claims Court. Nowadays the maximum recovery
can be up to $7500, which will cover almost
all cases. The proceeding can be filed in
the county where your property is situated
as it is the county where the lease was to
be performed. There will be no clerks
getting between you and the judge or
commissioner who will decide the case. The
snag, of course, is that serving a newly
evicted tenant may be difficult. This snag
is largely illusory. There is no time limit
on how long a small claim can remain on
file. If service cannot be effected
promptly, the hearing can be taken off
calendar and the uncalendared case can pend
for years until the tenant surfaces again.
If you engage a good process server he will
run periodic traces until he finds the
ex-tenant and will only charge if he finds
him. The papers can then be served and you
can take advantage of the informality of
Small Claims Court to get your money
judgment with a minimum of red tape.
In this regard it is worth noting that most
tenants are not evicted because they are
flush. Typically they are broke, and
eviction does not enhance their chances to
become wealthy. You are probably looking at
a wait of years for a substantial lifestyle
change by your ex-tenant before you can
actually recover money, regardless of when
you obtain the judgment. This is not a
reason for not obtaining one, but it is a
reason for patience. You have ten years
after entry of judgment to collect it. If
for some reason you do not do so within that
time, you can renew the judgment for another
ten, and another 10 after that, ad
infinitum, until the tenant or his estate
pays it, with 10% simple interest added on.
Trial
Depending on which county we are discussing,
landlords can expect about a third of the
unlawful detainer proceedings filed there to
be contested by the tenants they are trying
to evict. In most of those cases, the
tenant will file a document referred to as
an Answer. This is an official printed form
designed by the Judicial Council. The
tenant completes it by filling in blanks and
checking boxes and by doing this pleads his
case. In a few cases, some tenant’s clinic
or legal assistance program will prepare the
Answer for him, or even file a motion of
some sort bringing up some technical defect
in the landlord’s pleadings. We take it for
granted that, in this event, unless the
landlord is proficient in civil law and
motions practice, a lawyer will be
retained.
The purpose of this is usually to gain time
in the hope of finding alternative lodging
and gathering the money to do it. The
defenses themselves are often manufactured
of whole cloth. Few take the crime of
perjury seriously anymore. Sometimes there
is a kernel of truth to them. Popular
defenses are breaches of the implied
warranty of habitability, technical defects
in the eviction notice, claims of improperly
rejected rent tenders, and sometimes just a
general denial of the allegations of the
landlord’s complaint. Retaliation is also a
popular defense because it can be raised in
the complete absence of physical evidence.
By interposing an Answer the tenant forces
the landlord to prove his case to a judge in
the formal setting of a trial. This is
necessary because the judge has no way to
decide who is right until both sides have
presented their case.
Once the Answer is filed the court will set
a trial date. As with a default, nothing
will happen until the landlord makes the
necessary request for trial setting, which,
again, is prepared on a Judicial Council
form. Once this request is filed, the trial
must begin within 20 days. Typically the
trial is to the judge, but occasionally
tenants will seriously expect to be able to
present their case to a jury. If this
happens, the landlord should retain counsel
at once.
On the day of the trial, sometimes before at
a special hearing called a settlement
conference, the parties will have an
opportunity to compromise and settle the
case by agreement. The court prefers that
cases be disposed of in this way, and not
just because it reduces the number of
hearings that must be conducted. There is a
justified belief that the parties are far
better off settling their case because they
can then fashion the outcome that both sides
are willing to live with, rather than
leaving it to a judge whose powers are
limited unless the parties reach agreement.
Regardless of whether it is obtained by way
of trial or by way of settlement agreement,
we always recommend that the landlord
obtain, at minimum, a judgment for
possession of the property, except in the
rarest of circumstances. This is the only
way the landlord can be sure of recovering
possession of the rental unit. Even in the
case of a settlement in which the tenant
repays the back rent in the hope of
reinstating the tenancy, it is the only
inexpensive way for the landlord to retain
the leverage to motivate the tenant to
perform, and the most prompt remedy if he
does not.
In some cases, usually when a landlord
insists on conducting his unlawful detainer
trial himself, the tenant actually
prevails. This often occurs in the context
of a claim by the tenant that the rental
unit was partially uninhabitable. In such a
case the judge will make a determination of
how much, expressed as a percentage of the
contract rent, the rental value of the
property was diminished. Assume the judge
found the reduction amounted to 10%. The
judge will order that the back rent through
the date of trial be reduced by 10%, and
that all future rental installments be
similarly reduced until the landlord makes
the necessary repairs. The back rent, less
the reduction, is ordered paid within five
days. If not paid, the landlord is allowed
to apply for an order for entry of judgment
for eviction. As can be seen, things can
get complicated fast.
Post-judgment proceedings
There are things that can be done by the
tenant between the entry of judgment and his
physical eviction to prolong the agony.
Almost all of these consist of one of two
things: 1. Applications to the judge for
stays of eviction, and, 2. claims by third
parties, often fictitious, that they have a
right to possession of the rental unit.
There are other things, such as applications
to reinstate the tenancy on payment of all
outstanding rent, that can be done but they
are too rare to go into here.
Most common are applications to a judge for
delays in the physical eviction of the
tenant. Such applications are made in
writing with a minimum of 24 hours
notification to the landlord or his lawyer.
Sadly, tenants often do not take the
notification requirement seriously and skip
it. In any event, the court will read and
consider the application. The first
application for a stay is almost always
granted, but such stays are almost always
granted on the condition that the tenant
pays the daily rental value of the rental
unit into court. The court will then issue
the money to the landlord. The court’s
power to issue stays is limited, and the
aggregate of all stays issued may not exceed
a total of 40 days from the date of entry of
judgment unless the landlord consents to
further stays.
Post judgment claims of rights to possession
of the rental unit are less common but can
be more troublesome. Such claims may be
made by persons who were in possession of
the rental unit at the time the complaint
was filed but were not served with the
summons and complaint. This type of problem
usually arises when the landlord does not
know the person is on the property or
mistakenly believes that only persons such
as signatories to the rental agreement are
tenants who need be party to an eviction.
The claim is made by filing at court or
handing it to the sheriff when he comes to
do the eviction. The claim itself must be
accompanied by filing fees or a fee waiver
by the court and a hearing on the claim is
scheduled from five to fifteen days from the
date the claim is made.
The ins and outs of making the claim, what
constitutes a valid claim, how the hearings
are conducted, and so on, are beyond the
scope of a summary like this. Those
interested in them may wish to consult other
detailed materials available on this site,
or may wish to read CCP Section 1174.3,
which sets this all out. Suffice it to say
that a successful claim may put the landlord
in the position of having to virtually start
from scratch as to the successful claimant
and delay the eviction for a month or more.
The service of a Prejudgment Claim of Right
to Possession, which we discussed in the
context of the Summons and Complaint, short
circuits all of this. Service of such a
claim, even if it needs to be made
constructively, puts all potential tenants
on notice that they must file their claim
and their responses to the complaint
immediately, and the sheriff may ignore such
claims after judgment is entered and the
time has come for eviction.
Eviction
The physical eviction is the final act in
the unlawful detainer drama. The sheriff or
marshal will go out to the premises and
physically escort all persons on the
property off, giving the landlord a receipt
for return of the property. If the tenant
returns without the permission of the
landlord, he is guilty of trespassing and
the police will arrest him if he persists.
The landlord may then dispose of personal
property left on the premises as set out on
page two of the Writ of Execution for
Possession of Real Property.
The physical eviction begins with the court
clerk issuing a document called a Writ of
Execution for Possession of Real Property.
This is a summary of the judgment entered
with an order to the sheriff to restore the
plaintiff to possession of the rental
property. This writ is delivered to the
sheriff with instructions to do the eviction
and a deposit against the sheriff’s fees.
The sheriff will open a file and schedule a
date to deliver a five day eviction notice,
which by law must be done within three days
of delivery of the writ and instructions to
the sheriff. The notice will tell the
tenant that he must vacate the premises or
he will be evicted by a certain date and
time. Unless a prejudgment claim of right
to possession has been served, a blank claim
form with instructions will be included.
The sheriffs of the various counties have
varying procedures depending on how they
have their work load organized. In some
cases, an eviction appointment is set by the
sheriff and the landlord notified of the
date and time, with the request that the
landlord cancel the appointment if the
tenant moves out as required by the notice.
In other counties the sheriff does not set
an eviction appointment but lets the
landlord know what the tenant’s last day of
possession is and advises the landlord to
call to make an appointment if the tenant
does not move. In such counties the sheriff
will close the file within a week or two
after the tenant’s deadline to move if he
hears nothing.
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