Unlawful detainer is the legal term for eviction. It is an expedited court process through which a landlord can evict a tenant who continues to unlawfully possess real property. A landlord may commence an unlawful detainer action because the lease has expired, because the tenant has defaulted on paying rent, or because the tenant has violated lease terms. Landlords must follow the unlawful detainer procedures and cannot use self-help. A landlord who attempts to oust a tenant by taking actions such as terminating water or electricity, changing locks, or removing the tenant's personal property is liable for actual damages and a penalty of $100 per day. The prevailing party in an unlawful detainer can be awarded attorneys' fees and costs if the lease or rental agreement provides.Note that residents in a hotel or motel do not generally have tenants' rights.Notice to Pay Rent or QuitBefore initiating an unlawful detainer action, the landlord must serve notice on the tenant either (1) by personal service, (2) by leaving a copy of the notice with a person of suitable age and discretion at the individual's home or business and mailing a copy to the person's home, or (3) if the prior two methods cannot be completed, by posting a conspicuous notice on the property, delivering a copy to any person residing there, and sending a copy by mail to the property.Landlords must provide different types of notice depending on the reason for the unlawful detainer action, as follows:Three days' written notice to the tenant is required in the following situations:
30-Day or 60 Day Notice to Quit is required where the landlord wants to end a month-to-month tenancy. 30 days is required for someone who has lived in the unit for less than one year; 60 days is required where the tenant has lived in the unit for more than one year. Note that local rent control laws may limit a landlord to specific conditions under which it may cancel a month-to-month tenancy.90 days' written notice to quit is required where:
Commencing the Action After serving notice on the tenant, the landlord can commence the unlawful detainer action by serving a "Summons" and verified "Compliant – Unlawful Detainer" on the tenant.The tenant has five days after service to respond, by either (1) answering the Summons and Complaint, or (2) filing a responsive pleading (such as a motion to quash, a demurrer, or a motion to strike).An Answer can be filed using the unlawful detainer Form UD-105. This video will provide you (http://pd.global.playstream.com/courtvsh/progressive/flash/UD-105.html) step by step instructions on how to fill out the form. The Answer should deny the appropriate paragraphs of the Complaint and explain any affirmative defenses (see below).Affirmative Defenses to an unlawful detainer complaint include the following:
Motion PracticeAfter filing the unlawful detainer action, the landlord may take immediate possession of the property by filing a writ of possession. The writ of possession will only be granted at that time if the court is satisfied that the tenant resides out of state, has left the state, cannot be found in the state, or has concealed himself to avoid service. Otherwise, the landlord must continue through the regular unlawful detainer procedure.DiscoveryIn eviction cases, discovery must be completed on or before the 5th day before trial. The normal discovery tools, including interrogatories, form interrogatories, requests for production, requests for admission, and depositions may be used. Additionally, you may serve a request for inspection of real property.Parties have five days to respond to discovery served by personal service. Add five days to that timeline if discovery is served by mail.Discovery motions and motions for summary judgment may be filed with five days' notice.Fee WaiversIndividual may request a Fee Waiver through Form FW-001 and FW-003 (Order on Fee Waiver). This video provides step by step instructions (http://pd.global.playstream.com/courtvsh/progressive/flash/FW-001.html) on how to fill out the Fee Waiver form.Individuals are eligible for fee waivers if they are on certain public benefits, meet the income guidelines, or if their income is over or close to their expenses. The court will rule on the fee waiver within five days, and the tenant can redo the form or ask for a hearing if the fee waiver is denied. The tenant must pay filing fees within 10 days if the fee waiver is denied. The fee waiver is confidential and must not be served on the opposing party.Third Party RecordsLocal Code Enforcement programs enforce housing laws and ordinances, including requirements under California Health and Safety Code 17920.3. They may receive housing code complaints from tenants, and typically respond by inspecting the property to determine whether there are substandard conditions or conditions that pose a threat to the health and safety of a tenant. If the tenant previously made such a complaint, you may want to retrieve these records. You can get Code Enforcement records through a public records request to the city agency handling the records.In the event that you need to contest the landlord's standing or ownership of the property, you can get certified copies of the property deed from the County Clerk Recorder's Office.TrialUpon receiving a case, the parties or the attorney should call the court clerk to check whether a trial date has been set. Because eviction cases are masked from public view for 60 days, this information will not be available on the website.Once the landlord requests a trial, the court will set a trial date no less than 10 and no more than 20 days from the date of the request. Note that parties may use the same discovery as in civil cases, but with shortened deadlines. Because the premise of an unlawful detainer case is "possession" of the premises, the case will turn into a regular civil case if the tenant moves out.Lockout ProcessIf judgment is entered for the landlord, the court will issue a Writ of Possession, which orders the sheriff to evict the tenant from the unit, but also allows the tenant five days from the date the writ is served to voluntarily leave. The sheriff will process the writ of possession and generate a Five-day Sheriff's Notice to Vacate the following day.The 5-Day Notice to Vacate is posted by the Sheriff Monday through Friday, and provides the specific date the tenant must leave the premises. If the tenant does not vacate the premises on or before midnight of the lockout date, the landlord must call the Sherriff to remove the tenant.Where a tenant has left personal property in the unit, the Sheriff can either remove the belongings or have them stored by the landlord, who may charge reasonable storage fees. To retrieve the property, the tenant must (1) request in writing to reclaim the property within 18 days of vacating the premises, (2) provide the landlord with reasonable storage costs, and (3) agree to remove the property within 72 hours of providing the landlord with payment of the costs.After that time, the landlord can provide the property someone he reasonably believes is the owner, sell the property at a public auction, or keep the items if they are worth less than $700.Post-Judgment ReliefA tenant can bring a post-judgment motion called a "Stay of Execution" to ask the court for more time to vacate the premises. This motion should be brought ex parte and is a hardship-based request. The tenant may request up to 40 days from the date of the judgment to move out, and must pay rent for the time period upfront.ConfidentialityEviction cases are masked from public view for 60 days from the date the Complaint is filed. If the tenant prevails in the action, the case is masked indefinitely. If you believe that the case will not settle before this time, you should enter into a stipulation to extend the masking period beyond 60 days.Local RulesThe eviction process is different in every court, so you should make sure to review the Local Rules for your court and standing orders for your judge (if any). Throughout this document, "tenant" is used to refer to any possessor of real property, including a tenant, subtenant, or executor or administrator of an estate. Note that all persons who enter the premises under the tenant after the commencement of the suit are bound by the final judgment as if they were a party to the action. See Cal. Civ. Proc. Code § 1164. Cal. Civ. Proc. Code § 1161. Note: Unlawful detainer in commercial real property cases is discussed in a separate article. Cal. Civ. Proc. Code § 1161 (3) (Continued possession where there is a "neglect or failure to perform other conditions or covenants of the lease" including an illegal sublet). Cal. Civ. Code § 789.3(c)(2). Cal. Civ. Code § 789.3(c)(2). Cal Civ. Code § 1717. Cal. Civ. Code §§ 1940-1940.1; Cal. Health and Saf. Code §§ 50580-50591. Cal Civ. Proc. Code § 1162(a). Cal. Civ. Proc. Code § 1161 (2). Cal. Civ. Proc. Code § 1161 (2)(if the address does not allow for personal delivery, the payment is presumed to be received upon mailing).. Cal. Civ. Proc. Code § 1161 (3). Cal. Civ. Proc. Code § 1161 (3). Cal. Civ. Proc. Code § 1161 (4). Public nuisance under Cal. Civ. Code § 3482.8 or any offense under Cal Civ. Code § 3485 (c) or § 3486(c) qualify as a nuisance. Cal. Civ. Proc. Code § 1161 (4). Cal. Civ. Code § 1946.1. Cal. Civ. Code § 1946.1. Cal. Civ. Proc. Code § 1161b. This provision is in effect until December 31, 2019. Cal. Civ. Proc. Code § 1166. Cal. Civ. Proc. Code §§ 1167, 1170. Cal. Civ. Proc. Code § 1174.2; Cal .Civ. Code § 1941.1. Cal .Civ. Code § 1941.1; see also Disability Rights California, "Your Rights! Protecting Yourself Against unsafe Living Conditions and Evictions," September 2011, available at http://www.disabilityrightsca.org/pubs/550101accessible.pdf. Cal .Civ. Code § 1942. Cal. Civ. Proc. Code § 1161.5. Cal. Civ. Code § 1942.5. If a landlord accepts partial payment of rent, he must provide actual notice to the tenant that acceptance of the partial rent payment does not constitute any waiver of rights, including any right the landlord may have to recover possession of the property. See Cal. Civ. Proc. Code § 1161.1 (c). Cal. Civ. Proc. Code § 1161.3 (a). Cal. Civ. Proc. Code § 1161.3 (a)(1). Cal. Civ. Proc. Code § 1166a (a). Cal. Civ. Proc. Code § 1166a (a). Cal. Civ. Proc. Code § 2024.040(b)(1). Discovery can be a good way to leverage settlement, because opposing parties may prefer to settle before preparing discovery responses. However, they can also inform the opposing party about arguments and evidence they need before trial. Cal. Civ. Proc. Code §§ 1170.7-1170.8. Such as SSI/SSP, CalWORKs/TANF, Food Stamp or General Relief/General Assistance program.See, e.g., City of Berkeley Housing Code Enforcement at http://www.cityofberkeley.info/HousingInspectionRequestByTenant.aspx. Cal. Civ. Proc. Code § 1170.5.See, e.g., Cal. Civ. Proc. Code § 2030.020 (interrogatories may be propounded five days after service of summons). Cal. Civ. Proc. Code §§ 712.010 et seq., 715.010 et seq., 1170.5(a) Cal. Civ. Proc. Code § 715.010 Cal. Civ. Proc. Code § 715.040. Cal. Civ. Proc. Code § 715.010(c). Cal. Civ. Proc. Code §1965(a)(3). Cal. Civ. Proc. Code §1965(a)(4). Cal. Civ. Proc. Code § 1174(h). Cal. Civ. Code § 1988(a); Cal. Civ. Proc. Code § 715.030. See Department of Consumer Affairs' Legal Guides LT-4, "How to Get Back Possessions You Have Left in a Rental Unit," and LT-5, "Options for a Landlord: When a Tenant's Personal Property has Been Left in the Rental Unit," available at http://www.dca.ca.gov/publications/legal_guides/lt-4.shtml. Cal. Civ. Proc. Code § 918(a); Industrial Indemnity Co. v. Levine, Cal. App. 3d 698, 700 (1975) ("The stay of execution . . . is used to allow the judgment debtor time to gather his resources so that the judgment may be satisfied without unnecessary hardship."); Medford v. Superior Court, 140 Cal. App. 3d 236, 240 (1983) (stay of execution may be conditioned on the tenant's payment of rent accruing during the period of the stay, but not on payment of back rent); Kaiser v. Hankcock, 25 Cal.App. 323, 328 (1914). Cal. Civ. Proc. Code § 918. 40 days is allowed because the court may stay execution for 10 days beyond the last date on which a notice of appeal could be filed. Under California Rules of Court, Rule 8.822, a party may appeal an unlawful detainer judgment within 30 days after the notice of entry of judgment is mailed by the clerk or opposite party, or 90 days after entry of judgment, whichever is earlier. Cal. Civ. Proc. Code § 1161.2 (a)(5). Cal. Civ. Proc. Code § 1161.2 (a)(5).
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