You have rented your property to a tenant in the State of California, and you now wish to terminate the tenancy and rental contract, either for non-payment or simply because you want to move your children into the property. It’s your property, so it should be simple…shouldn’t it? In California it is not as simple as one might think. The eviction of a tenant in California is sometimes a long and arduous process with many steps. Following are the basic steps for California Tenant Eviction, not taking into account local and municipal rent control laws and statutes.
Grounds for a Tenant Eviction in California
In the State of California you can evict a tenant for certain reasons, or in non-rent controlled cities for no reason at all, simply because you have a month to month tenancy and you want your property back. You can, evict a tenant for failing to pay the rent timely. You can evict your tenant in California for breaching a covenant of your rental agreement, like obtaining a non-service animal when it is specifically denied in the rental agreement, or moving in additional non-approved persons. You can also evict your tenant for performing illegal acts or allowing illegal activity on your property, like the sale of drugs, although a supporting police citation or criminal case would be required.
You cannot evict your tenant in California as any kind of retaliation for their performance of certain protected activities, like requesting repairs that are necessary and not at the fault of the tenant or tenant’s guest. You cannot evict your tenant for obtaining a service animal, even though your lease specifically provides there are to be no animals on the premises.
Serving an Eviction Notice to your Tenant in California
Before you can start an Eviction (known as Unlawful Detainer), the lawsuit to Evict your Tenant in California, you must first serve your tenant with a Legal Written Notice. The Notice for each case will vary depending on the reason for the Eviction. Notices must be served in compliance with the California Code of Civil Procedure (CCP) §1162.
If your Tenant has failed to pay the rent you would serve them a 3-Day Notice to Pay Rent or Quit. Or if the Tenant has moved in additional non-authorized persons, you would serve a 3-Day Notice to Perform Covenants. If the tenant has or has allowed illegal activity on the property then a 3-day notice to quit would be used as that is considered a non-curable breach and the tenant will not be given the opportunity to fix his or her wrong doings.
If you are simply seeking to get possession of your property back so you can move into it yourself or move a family member in you would serve a 30-Day Notice to Terminate Tenancy if the Tenant has been in the property for less than one year, or a 60-Day Notice to Terminate Tenancy if the Tenant has been in the property for more than one year, keep in mind that the tenant must be on a month to month rental agreement at this time or the notice will not work. For example, if you are one year into a two year lease then you cannot serve a 30 or 60 day notice to the tenant as they have a contractual right to be in the property for 2 years unless they fail to pay rent or breach another covenant that give you cause to evict them.
The notice served will be the cornerstone of your lawsuit, so it must be appropriate and contain all information required by law or statute.
You can service the notice by 1) either personally delivering it to one of the Tenants named on the notice, or by 2) substitute serving the notice to an adult on the premises if the named Tenant(s) are not available and by mailing the notice addressed to the Tenants at the property, or 3) by posting a copy of the notice in a conspicuous place on the property if no adults are available for service and mailing a copy of the notice addressed to the Tenants at the property. Again, see California Code of Civil Procedure (CCP) §1162, this is the specific law that covers service of the notices.
Expiration of the Notice
Once you have selected the appropriate notice to serve your Tenant in your specific circumstance. Now you must wait the requisite days for the notice to expire for the Tenant to Perform pursuant to said notice. If you have served a 60-Day Notice to Terminate Tenancy you must wait the 60 Days to see if the Tenant vacates pursuant to the notice. If you have served your tenant a 3-Day Notice to Pay Rent or Quit you must wait the 3 Days to see if the Tenant pays the demanded rent or vacates the premises.
If the Tenant(s) perform pursuant to the served notice, you will not need to, and cannot, complete an Eviction against the Tenant(s) in California. If the Tenant(s) fail to perform pursuant to the notice you will need to proceed with an Eviction of the Tenants.
Filing the Lawsuit
At this point, your Tenant has failed to perform the requirements of the Notice and you are now ready to evict your tenant by filing an Unlawful Detainer in court. In California, to evict your tenant you must file a lawsuit, with the court. This lawsuit is called an Unlawful Detainer. The basic forms required for this are 1) a 5-Day Summons, 2) Verified Unlawful Detainer Complaint, and 3) a Civil Case Coversheet. These are going to form your “Eviction Packet.” Depending on the county in which your property lays you may be required to file additional documentation, like a Civil Case Cover Sheet Addendum in the County of Los Angeles. An optional Prejudgment Claim of Right to Possession may also be filed with the court and served on the Tenant(s). This document allows the Sheriff to lockout any and all persons who may be on the property at the time of the lockout, not just those whose names are known to you.
You will need to take to the designated court at least two copies of the fully completed eviction packet. One copy will stay with the court, the second copy will go with you to be duplicated and served on the Tenant. While at the Court a Clerk will “conform” all of your documents. This means that the Clerk will file stamp the documents and apply and assign a Court Case Number specific to your lawsuit and your lawsuit alone.
Serving the (UD) Lawsuit on Your Tenant
Once your documents have been filed with the court and you have a Court Case Number, you must legally notify your Tenant(s) of the lawsuit. This is done through service of the Eviction Packet as stated above. If you are serving a Prejudgment Claim of Right to Possession the service must be completed by the Sheriff or a Registered Process Server. If you are not serving a Prejudgment Claim of Right to Possession the Eviction Packet may be served by any Adult other than the Plaintiff/Landlord and it is a good idea not to uses a relative to serve the Summons.
The Eviction Packet must be served in a legal manner and cannot simply be posted and mailed as the Notice. The first, and preferred, method of service is by personal service to each Tenant-Defendant separately. If, after three attempts of service on three separate days at three separate times of day, personal service cannot be elicited, the Eviction Packet may be served by substitute service on any adult occupant in the property, accompanied by mailing. If the tenants are unable to be served by either of these methods, an Order to Post must be sought and granted by the court before Posting and Mailing can be performed. Once a judge or commissioner has signed off on an Order to Post, you may then, and only then, serve the Eviction Packet by posting one copy for each Tenant/Defendant in a conspicuous place on the property and Certified Mailing one copy addressed to each Tenant/Defendant at the property.
Waiting for a Response
After the tenants have been lawfully served the Eviction Packet you now must wait the required amount of time for the Tenant(s) to lawfully respond to your Lawsuit. If the Tenant(s) were served by personal service, this is five (5) days. If the Tenants were served by substitute service and mailing or posting and mailing, it is fifteen (15) days from the date of completion of both steps for service.
If you have served a Prejudgment Claim of Right to Possession you must allow ten (10) days for any and all “Unknown Occupants” to file a response.
If after the required amount of time no response has been filed you will submit a “default” pack to the court and proceed to a Sheriff’s Lockout. If the Tenant(s) file a response you will need to go to court, as stated in the next section.
Going to Court
You have given your tenant a notice, they have failed to perform pursuant to that notice, you filed and served a lawsuit, and now your tenant has filed a response to the lawsuit. You must now go to court. There are a number of different pre-answer motions that can be filed, most notably a Motion to Quash, Demurrer or Motion to Strike, however these Motions are only filed in about 15% of cases. The most common response to the Unlawful Detainer Complaint is an Answer. An Answer is exactly what it sounds like; it is the tenant’s answer/responses to the claims of the complaint. Once an answer has been filed the most common route to take is to file a Request to Set the Matter for Court Trial.
Once a Request for a trial has been set the court trial is usually set within 21-30 Days. At the trial both parties will go before the judge and plead their cases. 95% of the time you will receive a ruling and judgment at the trial.
If a party to the case has filed a demand for a jury the court will usually set the trial date within 21-30 days; however, the party demanding the jury trial must deposit with the court jury fees not less than five days before the trial is set to begin. Jury trials are entirely different animals from court trials and can take weeks to complete. It is highly advisable to seek immediate counsel if a party has demanded a jury trial, which is common in cases where the tenants have hired legal aid types to represent them.
Once a judgment has been rendered in your favor you must obtain a Writ of Possession from the court. This is the document that allows the sheriff to complete a lockout and return possession of your property to you.
You have obtained a writ of possession and given it, along with written instructions, to the sheriff of your county. The sheriff must now post a 5-Day Notice to Vacate on the property informing the tenants of a lockout date. This date is almost certainly not the actual date of the lockout. After the Sheriff has posted this notice and waited the requisite 5 days they will contact you or any agent you have designated to inform you of the actual lockout date. You or your agent will need to be present at the lockout to take possession of the property. The sheriff will not force their way into the property by breaking doors or windows, so you must have working keys to the property or a locksmith at the lockout to provide entry. The sheriff will, if necessary, forcibly remove individuals from the property and effectively turn over possession to you.
After the lockout, the tenants have fifteen (15) days to return and take with them their possessions. You must be reasonably available for the tenants; however it is at your convenience that they return to get their possessions. If after 15 days the tenants have not returned to regain their remaining possessions you may either 1) trash the items or otherwise dispose of them as you see fit so long as the reasonable net value is under $700, or 2) sell the items at a public auction if the reasonable net value is over $700. Lastly, while you are likely to be owed money from the tenant and you intend to use the security deposit for that amount, you must still send to the tenants at their last known address (usually your property) a Security Deposit Disposition Letter within 21 days after the tenants have vacated the unit (the lockout date).
You now will have possession of you property after completing a successful California Tenant Eviction, and can move on with your life by re-renting to better tenant in the future so you don’t have to go through this process again.
For questions or to hire a qualified eviction specialist, call today: 760-566-9094