Eviction Process Explained
The ABC’s Of The Eviction Process
What Is An Eviction?
3 Day Notice
A landlord can use a written three-day notice (eviction notice) if the tenant has done any of the following:
Failed to pay the rent.
Violated any provision of the lease or rental agreement.
Materially damaged the rental property (“committed waste”).
- used the premises for an unlawful purpose.
- substantially interfered with other tenants (“committed a nuisance”).
- Committed domestic violence or sexual assault against, or stalked another tenant or subtenant on the premises.
engaged in drug dealing, unlawfully used, cultivated, imported, or manufactured illegal drugs.
Using the building or property to conduct dog ghting or cockfighting.
unlawful conduct involving weapons or ammunition.
if the landlord gives the tenant a three-day notice because the tenant hasn’t paid the rent, the notice must accurately state the amount
of rent that is due. in addition, the notice must state:
- the name, address and telephone number of the person to whom the rent must be paid.
- if payment may be made in person, the usual days and hours that the person is available to receive the rent payment. if the address does not accept personal deliveries, then you can mail the rent to the owner at the name and address stated in the three-day notice. if you can show proof that you mailed the rent to the stated name and address (for example, instead, the notice may state the name, street address and account number of the nancial institution where the rent payment may be made (if the institution is within five miles of the unit). if an electronic fund transfer procedure was previously established for paying rent, payment may be made using that procedure.
the landlord normally cannot require that the tenant pay the past-due rent in cash.
if the three-day notice is based on one of the other seven conditions the notice must either describe the tenant’s violation of the lease or rental agreement, or describe the tenant’s other improper conduct. the three-day notice must be properly served on the tenant (see pages 68–71).
depending on the type of violation, the three- day notice demands either (1) that the tenant correct the violation or leave the rental unit, or (2) that the tenant leave the rental unit. if the violation involves something that the tenant can correct (for example, the tenant hasn’t paid the rent, or the tenant has a pet but the lease doesn’t permit pets), the notice must give the tenant the option to correct the violation.
Failing to pay the rent, and most violations of the terms of a lease or rental agreement, can be corrected. in these situations, the three-day notice must give the tenant the option to correct the violation. however, the other conditions listed cannot be corrected, and the three- day notice can simply order the tenant to leave at the end of the three days.
The Eviction Lawsuit
If the tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. in order to evict the tenant, the landlord must le an unlawful detainer lawsuit in superior Court.
In an eviction lawsuit, the landlord is called the “plaintiff” and the tenant is called the “defendant.”
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 ve days to le a written response to the lawsuit after being served with a copy of the landlord’s summons and complaint.
Three forms are necessary to proceed with an Unlawful Detainer Complaint:
Unlawful Detainer Complaint
Civil Case Cover Sheet
You’ll need to submit the Unlawful Detainer Complaint and the Civil Case Cover Sheet to the courthouse in the county where the rental property exists. The forms must be factually accurate, so be meticulous when filling them out. The clerk at the courthouse will give you a summons and a stamped copy of the Unlawful Detainer Complaint.
Be sure to get a copy of the Prejudgment Right of Possession form or print one. This form is used when someone not listed on the rental agreement is living in the unit. You cannot legally evict a person living in a unit who is not named in the complaint, so you’ll need to serve those unnamed occupants with a Prejudgment Right of Possession form and a copy of the complaint and summons. This action will automatically make them defendants in the lawsuit.
From the time you file an Unlawful Detainer Complaint form, the process of getting the tenant evicted typically takes about two months, although eviction can take longer.
Serve the tenant with the proper legal documents
As before, the complaint and summons must be properly served to the tenant. However, you cannot “nail and mail” a summons. After you serve the summons, file a proof of service with the court. Do not continue to reserve the tenant with notices, as this action will end the original case and open a new one, which will extend the waiting period and prolong the case.
Wait for the tenant to respond to the lawsuit
The tenant has five business days to file a “response” to the court to challenge the lawsuit. Responses from a tenant might include a motion to attack the method of service, a motion to answer the complaints received, or a motion to attack the sufficiency of the notice received.
If the tenant fails to respond after five business days, you can ask for a default judgment by filing another form with the court. The clerk of court will set a court date, and you will have to give the judge enough evidence to show that you properly went through the eviction process and the tenant defaulted.
What if the Defendant Fails to Respond?
If the defendant does not respond, they are in “default.” There are three steps to obtaining a default, judgment for possession of the premises and a monetary award:
REQUESTING ENTRY OF THE DEFENDANT’S DEFAULT
- Timing: You must ask the court to enter the defendant’s default if they missed the deadline to file a response.
- Fill out the form Request for Entry of Default (CIV-100) : You must request that the Court hold the defendant in default for failing to respond to the Summons and Complaint. Act quickly. Until you file this form, the defendant can still respond even though their time has expired.
- The boxes and sections you complete depend on whether you are asking for a Default AND Clerk’s Judgment for possession at the same time to be entered or you are just requesting that a Default be entered because the time has not expired for all defendants to respond, including “unnamed tenants” if applicable.
- Serve the Request for Entry of Default: You have to mail a copy to every defendant. Serve the defendant at the address where they got the summons and complaint.
- File the original and one copy following documents with the clerk:
- File a Proof of Service of Summons and Complaint (POS-010) for each defendant served. You have to prove to the court that you served the defendants with the Summons and Complaint and Prejudgment Right to Possession for “unnamed tenants” if served.
Request for entry of default:
- What the clerk does: The clerk looks at the proof of service of the Summons and Complaint. The clerk has to make sure the defendant missed the day to respond. Next, the clerk looks in the court file to make sure that the defendant did not file a response. If they did not, the Clerk will enter the defendant’s default.
- Effect of default: If the court enters the defendant’s default, the defendant cannot fight your request for a judgment.
- Separate defaults: If the defendants were served with the Summons and Complaint on different days, their time to respond will vary. If one defendant missed the deadline to respond, but another still has time left, you can ask for a default for the defendant who missed the deadline. You can then request another default for the remaining defendant when their time to respond expires. OR, you can wait for all the deadlines to pass. Then you can ask for a default for the defendants that do not respond.
If The Defendant Files An Answer
If a defendant files a response, it is usually an Answer to the Complaint.
If you want the case to move forward, you may want to fill out a Request to Set Case for Trial-Unlawful Detainer (UD-150) . Someone else must mail a copy of the Request and complete the Proof of Service on the back of the Request. Then file the Request with the court.
The defendant may also respond by filing a Demurrer or Motion to Strike the Service of the Summons and Complaint. The defendant should seek legal advice regarding these motions.
The Lock Out
ASK FOR RESTITUTION OF THE PREMISES AND EVICTION
- If some of the defendants respond: If some of the defendants answer, you cannot get a default judgment until you have a trial (see above) and prove your case against the defendants that responded.
- If you did not serve the people who are not named: If you chose not to serve a person on behalf of “unnamed tenants” you can ask for a default judgment for restitution of the premises at the same time that you request the default of all of the named defendants.
- If you served the people who are not named: If you served a person on behalf of “unknown tenants” with a Summons, Complaint, and Prejudgment Claim of Right to Possession, you have to wait for the deadline for an unnamed tenant to file a Prejudgment Claim. The unnamed tenant has 10 days from the date of service to file a Prejudgment Claim of Right to Possession.
Ask for a Clerk’s Judgment
- Fill out the form Request for Entry of Default (CIV-100) : The sections that you complete will vary depending on whether you served “unnamed tenants” and if you previously requested a Default only. A copy has to be mailed to each defendant.
- Fill out the form Judgment – Unlawful Detainer (UD-110) : You have to have a judgment to evict the tenants.
- Name, address, and phone number box
- Court name and address box
- Abbreviated case name
- Form caption: check the following boxes: “By Clerk”; “By Default”; “Possession Only”
- Check box 1.d.
- Check box 3.a.
- Check “plaintiff” on box 4
- Check box 5 only if you served a person on behalf of “unnamed tenants”
- Fill out the form Application for Writ of Possession-Unlawful Detainer (L-1051) : This form advises the Court of the daily rental value.
- Fill out the form Writ of Possession (EJ-130) : This form authorizes the Sheriff to evict the defendants.
- Name, address, and phone number box
- Court name and address box
- Abbreviated case name
- Form caption: check the following boxes: “Possession Of”; “Real Property”
- Insert “Orange” in number 1.
- Insert the full names of the plaintiff (called “judgment creditors” after a judgment has been entered) and check the “judgment creditor” box in number 3.
- Insert all of the names of the defendants (called “judgment debtors after a judgment has been entered) that you served and received a Default and Judgment against as well as their address.
- Check the “has not been requested” box in number 7.
- Check box 9.
- Check box 24. a. and insert the date that the Complaint was filed.
- Check box 24. a. (1) or (2); if checking (2) be sure to insert the daily rental value as reflected on your Application for Writ of Possession-Unlawful Detainer.
- Include the issuance fee.
- File the forms with the clerk.
- What the clerk does: The Clerk reviews your request. If it is appropriate, the Clerk enters the Clerk’s Judgment and issues the Writ of Possession.
- Fill out form Sheriff instruction (OCSDS): This form provides the Sheriff with instructions about the eviction. Include the Sheriff fees. Forward these documents with the Writ of Possession to the Sheriff to begin the eviction process.
- What the Sheriff does: The Sheriff posts a Notice of Eviction at the property. The defendants have 5 days to leave. If they do not leave, the Sheriff can make them leave. You can read more about the Sheriff’s eviction procedures.