Overview of the Eviction Process in California
After the landlord has given proper notice and if the tenant doesn’t voluntarily move out, the landlord can evict the tenant. In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in superior court.
In an eviction lawsuit, the landlord is called the “plaintiff” and the tenant is called the “defendant.”
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California Eviction Process: Unlawful Detainer Lawsuit
An unlawful detainer lawsuit is a “summary” court procedure. This means that the court action moves forward very quickly, and that the time given the tenant to respond during the lawsuit is very short. For example, in most cases, the tenant has only five days to file a written response to the lawsuit after being served with a copy of the landlord’s complaint. Normally, a judge will hear and decide the case within 20 days after the tenant files an answer.
The eviction process in California is administered by the court, which assures the tenant of the right to a court hearing if the tenant believes that the landlord has no right to evict the tenant. California state Eviction Laws determine that landlord must use this court process to evict the tenant; the landlord cannot use self-help measures to force the tenant to move. For example, the landlord cannot physically remove or lock out the tenant, cut off utilities such as water or electricity, remove outside windows or doors, or seize (take) the tenant’s belongings in order to carry out the eviction. The landlord must use the court procedures.
If the landlord uses unlawful methods to evict a tenant, the landlord may be subject to liability for the tenant’s damages, as well as penalties of up to $100 per day for the time that the landlord used the unlawful methods./p>
In an unlawful detainer lawsuit, the court holds a hearing at which the parties can present their evidence and explain their case. If the court finds that the tenant has a good defense, the court will not evict the tenant. If the court decides in favor of the tenant, the tenant will not have to move, and the landlord may be ordered to pay court costs (for example, the tenant’s filing fees). The landlord also may have to pay the tenant’s attorney’s fees, if the rental agreement contains an attorney’s fee clause and if an attorney represented the tenant.
Writ of Possession During the California Eviction Process
If the court decides in favor of the landlord during the eviction process in California, the court will issue a writ of possession. The writ of possession orders the sheriff to remove the tenant from the rental unit, but gives the tenant five days from the date that the writ is served to leave voluntarily. If the tenant does not leave by the end of the fifth day, the writ of possession authorizes the sheriff to physically remove and lock the tenant out, and seize (take) the tenant’s belongings that have been left in the rental unit. The landlord is not entitled to possession of the rental unit until after the sheriff has removed the tenant.
The court also may award the landlord any unpaid rent if the eviction is based on the tenant’s failure to pay rent. The court also may award the landlord damages, court costs, and attorney’s fees (if the rental agreement or lease contains an attorney’s fee clause and if the landlord was represented by an attorney). If the court finds that the tenant acted maliciously in not giving up the rental unit, the court also may award the landlord up to $600 as a penalty. The judgment against the tenant will be reported on the tenant’s credit report for seven years.
What Happens after the Tenant is served with the Unlawful Detainer Lawsuit During the Eviction Process?
The Uncontested Case = No Court Appearance
In about half of the cases in a California Eviction Process, the tenant will not respond to the unlawful detainer lawsuit so that the landlord can have a judgment for possession entered by the Court. Once the court clerk enters the judgment for possession, the case is sent to the Sheriff’s office for lockout proceedings.
The Sheriff goes to the property and posts a 5-Day Notice To Vacate on the front door. If the tenants fail to vacate within that period of time, the Sheriff will return and physically lock out the tenants and possession will be restored to the Landlord. Change the locks so that the tenant cannot get back into the property.
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The Contested Case = Court Appearance(s)
Some tenants may have legitimate defenses to an unlawful detainer action. In those cases, the tenant should win the case against the landlord if there are glaring deficiencies in the landlord’s paperwork or serious habitability problems with the premises.
The majority of tenants however, have little or no defenses to the unlawful detainer case and use the Court system to delay the eviction process to buy them more time.
Unfortunately, there are many eviction delay services available to the unscrupulous tenant and, for a nominal fee; the tenant can file various frivolous motions with the court to temporarily halt the eviction proceeding. Many times, the tenant will not even bother to mail a copy of the answer or other motion to the Landlord’s attorney in an effort to “sandbag” them. It is frustrating to be involved with a tenant who pulls these legal tricks and maneuvers but the California court system allows tenants to file the following response / motions regardless of whether there is any merit or truth in them.
California Eviction Process: When does the 3-day Notice Expire?
It’s important to know when the 3-day notice to vacate expires during the eviction process in California.
The following is a simple chart to help determine when the 3-day notice legally expires. Some cases are lost at court because the landlord or attorney filed the case before the 3 full days have expired.
VERY IMPORTANT: Please note that if the last day falls on a legal holiday, the tenant is given an extra day to comply. Example: a 3-day notice served on January 2nd is improper because January 1st is a legal holiday so that the rent is not late if paid on January 2nd.
|A Notice Served on||Will expire at midnight on|
What happens when the Notice Expires?
If there has been no compliance by the tenant with the Eviction Notice, then the Landlord must commence an unlawful detainer lawsuit “eviction”. The Landlord cannot simply change the locks or take possession of the premises without a Court order or a voluntary surrender of the premises by the tenant
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For More information on the California Eviction Process
Do you need more information on the California Eviction Process before you choose to proceed with evicting a tenant? Reach out to the eviction experts at Express Evictions for more information on the process and on how we can help.
California Eviction Process Flowchart