California Residential Eviction Procedure Summary

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 has 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 the 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, and the remedy is complete and draconian.  It is the root canal of landlord-tenant law, as it were.  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 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 validly be served 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.  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. 

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 or not 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 are those demanding possession from a tenant who is committing a nuisance or waste to 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 is 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.  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 fine, but not giving 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 1161b.  The erstwhile owner may be given a three day notice to vacate.  A tenant in possession must be given 60 days notice to vacate.  Our forms are here. 

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 will need to account for the security deposit 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, and preferably after the eviction though there is nothing to stop you from trying to get one before if you really want to muddy the waters, to obtain a judgment for money owed and expenses of filing and process service in the unlawful detainer itself.  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.  This is not a joke, it is a fact of life. 

Rather than play this costly game of legal ping-pong, many landlords prefer to dismiss their 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 would 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 also 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. 

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 all 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 present 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 to act if he does not. 

In some cases, usually when a landlord insists on conducting his unlawful detainer trial himself, the tenant actually prevails.  This usually 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 pay 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 issues may not exceed a total of 40 days 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 simply does not know the person is on the property or just mistakenly believes that only persons such as signatories to the rental agreement can be 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 rent. 

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 claims 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.