The California Eviction Process

Important Legal Disclaimer:

David S. Schonfeld, A Professional Law Corporation is not advising you or giving you specific legal advice and you are ultimately responsible for the outcome of your legal matter. Legal advice is only given to those clients who have retained the firm.

The material contained on this web site is for informational and educational purposes only and specifically applies to jurisdictions in the State of California which are not subject to rent control or tenancies which are subsidized under certain local, state or federal housing programs (For example, Section 8 Housing Assistance Program).

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David S. Schonfeld
A Professional Law
Corporation
801 E. Chapman Ave.
Suite 214
Fullerton, CA 92831
Tel: 714-871-9004
Fax: 714-871-9005
david@evictionlaw.com
www.evictionlaw.com

A Landlord who seeks to use the legal system to evict a Tenant to retaliate or discriminate can face a wrongful eviction, malicious prosecution, or Fair Housing Lawsuit. If the Tenant reported the Landlord to Code Enforcement for serious habitability problems or reported the Landlord to a Fair Housing or another government agency for violating California or Federal laws, the Landlord may face serious legal repercussions and exposure to future lawsuits from the Tenant or a class of Tenants who have been harmed by the Landlord’s illegal actions.

In most cases, Tenants involved in an eviction case are simply people who may be experiencing difficult financial circumstances. In California "slumlords" still exist and "deadbeat" Tenants still exist. Prudent Landlords will conduct credit and eviction searches on a prospective applicant, and prudent Tenants will investigate their prospective Landlord by contacting the Code Enforcement department in the city where the rental property is located.

Please be advised that this Firm has a professional and ethical responsibility not to file any legal action for an improper purpose or to file a lawsuit which may expose the Firm or our clients to unnecessary liability. Landlords who do not comply with the law or who do not operate their business with honesty and integrity should not consult this Firm for legal advice.

How Do I Start an Eviction Case

In most cases, in order for a Landlord to initiate the eviction process, California law requires all persons residing in the Premises to be served with a Notice. The most common types of Notices are discussed below. Landlords who rent to Tenants with Housing Vouchers, Section 8 Certificates or other Federal or State subsidized rent programs are subject to different Notice requirements than those discussed here. Please call our office for further information.

If preparation or service of the Notice is done incorrectly or not at all and the Tenant raises it as a defense, the Court will dismiss the Landlord's eviction lawsuit on a technicality and the Tenant will prevail at Court and remain in possession of the premises.

Preparing the Proper Notice

The 3 Day Notice to Pay Rent or Quit

This Notice is used when the Tenant has failed to pay the full rent due and owing for the particular rental period. All Tenants named in the rental agreement must be listed on the Notice as well as the names of all other occupants, if known. The complete property address and county must be on the Notice including the apartment number of the unit if applicable. Finally, the exact amount of rent must be demanded in the Notice without any additional amounts for late charges, interest or other penalties. If any charges other than rent are included on the 3 Day Notice to Pay Rent or Quit, California case law holds that the Notice is fatally defective and the Landlord's case will be dismissed. Be sure to date and sign the Notice and fill out a proof of service indicating the date and method of service.

The 30 or 60 Day Notice to Terminate Tenancy

A 30 Day Notice is served to terminate a month to month tenancy where the Tenant has been in possession of the rental unit for less than one year. If the Tenant has been in possession of the rental unit for more than one year, the Landlord must serve a 60 Day Notice.

Neither the 30 or 60 Day Notice can be used to terminate a fixed term lease agreement during the term of the lease. The critical point to remember is that the Landlord must not accept any rent payments to cover any period of time after the expiration of the Notice date. If the Tenant tenders a rent payment to cover a period of time after the expiration of the 30 days, it must be returned immediately to the Tenant to avoid a waiver of the 30 or 60 Day Notice.

Exception to 60 Day Rule for Sale of Residential Single Family Homes & Condos:

An Owner who has contracted to sell the property may serve a Tenant with a 30 Day Notice if all of the following requirements are met:

The title to the dwelling or unit is separate from any other dwelling or unit such as a single family home or condominium;
The Owner has contracted to sell the dwelling or unit to a bona fide purchaser for value and has established an escrow with a licensed escrow or real estate broker;
The buyer is a natural person. Corporations, LLC's LP's, or other artificial entities do not qualify;
The 30 Day Notice is served not more than 120 days after the escrow has been opened;
The 30 Day Notice was not previously given to the resident under this law;
The buyer in good faith intends to reside in the dwelling or unit for at least one full year after the prior tenancy has been terminated.

The 3 Day Notice to Cure Breach of Covenant or Quit

This type of Notice is used when the Tenant has breached some material term of the rental agreement other than non payment of rent, i.e., No Pets clause, subletting without Landlord's consent, or not paying late fees. This Notice gives the Tenant 3 days to correct the violation or to move out of the Premises.

Tip: Judges are very reluctant to evict tenants over minimal breaches such as failure to pay a late charge. It is also economically unsound to file spend hundreds of dollars processing an eviction case over a late charge or NSF charge. Landlords are cautioned that Tenants will normally contest this type of Notice in court and will prevail if the breach is not significant or the Landlord fails to present sufficient evidence to the Court of the breach.

Where the breach relates to the Tenant's conduct, it is absolutely essential that the Landlord have eye witnesses, photographs, and other competent evidence to prove to the Court that the breach did in fact occur and that it is a material breach of the rental agreement and/or it is a legal nuisance. Because of this strict scrutiny, it is wiser to simply serve the offending Tenant(s) with a 30 or 60 Day Notice to Terminate the tenancy as long as the tenancy is month-to-month.

The 3 Day Notice to Quit for Committing a Legal Nuisance

This Notice is similar to the previous Notice but is used when the Tenant is engaging in criminal activity or other acts which are harmful to other occupants of the property, thereby constituting a legal nuisance. Such acts include illegal drug activity, prostitution, and in some cases gang activity. Code of Civil Procedure, Section 1161 provides the legal basis whereby a Landlord can serve a 3 Day Notice to Quit on a Tenant who "...illegally sells a controlled substance upon the Premises or uses the Premises to further that purpose..."

Again, this type of Notice is subject to strict review by the Court so Landlords are advised to have independent witnesses (other Tenants who observed the illegal activities), police officer testimony and other evidence to sustain the Landlord's burden of proof should the Tenant contest the matter at trial. It is best to have an attorney prepare this type of Notice.

Serving the Notice Correctly

Note: The original Notice should always be retained by the Landlord and a Proof of Service (also called Declaration of Service) should be completed and retained after the Notice is served.

Personal Service

This is the best method of service and simply means that each occupant of the Premises is handed a copy of the Notice by the Landlord or Landlord's agent on a face-to-face basis. The Tenant may be served with the Notice at his or her place of business if service cannot be effectuated at the premises.

Substituted Service

This is accomplished where an individual of suitable age and discretion (over 18 and competent to understand what the Notice is) is handed a copy of the Notice at the Premises with another copy mailed to the Premises on the same day via first class mail.

Post & Mail

In this situation, if the Notice cannot be personally served or served by substitute service, then the Landlord or Landlord's Agent may post the Notice in a conspicuous place on the Premises (usually the front door) with another copy mailed to the Premises on the same day via first class mail.

Note: Some poorly drafted leases have Notice provisions that increase the Tenant’s time to cure a default or breach from 3 days to 5, 10 or even 30 days. This means that a 3 Day Notice to Pay Rent or Quit will be invalid. This is especially true in a Commercial lease context where the Tenant’s time to cure a default and the method or giving Notice will be specified within the lease.

Calculating the Expiration Date of the Notice

Below is a simple chart to help determine when a 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. If the Notice allows the Tenant to mail the rent, it is highly advisable to wait a few extra days before filing a lawsuit in order to compensate for any delay in mail delivery.

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.

Day Served	Notice Expires Midnight of
Monday	Thursday
Tuesday	Friday
Wednesday	Monday
Thursday	Monday
Friday	Monday
Saturday	Tuesday
Sunday	Wednesday

Filing the Unlawful Detainer Action

If there has been no compliance by the Tenant with the Notice, then the Landlord may commence an Unlawful Detainer legal action. 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.

Will the Tenant Respond or Not?

the uncontested case = no court appearance

In about two-thirds of cases, the Tenant will not respond to the Unlawful Detainer lawsuit. This means that the Landlord may have a default judgment for possession entered by the Court and a Writ of Possession issued to the Sheriff's office.

Once the Sheriff receives the Writ from the Court, a deputy will post a 5 Day Notice to Vacate on the front door. If the Tenants fail to vacate within that period of time, the Sheriff will come out a second time and physically lock out the Tenants and possession will be restored to the Landlord. The Sheriff will not change the locks so the Landlord must do so immediately after the lockout.

the contested case = court appearance(s)

In the other one-third of cases the Tenant will file an Answer or other legal pleading to contest the eviction lawsuit. The case may be contested for valid and invalid reasons but the result is that the Landlord will be delayed or denied possession of the rental unit. Once an Answer is filed with the Court, the Court has 20 days after the Landlord requests a trial date to set the case for trial.

In general, the Landlord will prevail at trial if sufficient evidence is produced that he or she has followed the proper legal procedures in terminating the tenancy and there are no legitimate defenses raised by the Tenant. On the other hand, if the Tenant produces sufficient evidence of a serious breach of habitability, retaliation, or other valid defenses, the Tenant will prevail and may defeat the Landlord's ability to regain possession of the premises.

delaying tactics

Motions

California is a "tenant" friendly State with a strong tenant lobby. This means that there are many laws enacted to protect the rights of Tenants. Additionally, because there are many technical court rules and procedures that govern the Unlawful Detainer Process, even the slightest mistake by the Landlord can result in serious delays or dismissal of the case.

Due to the tremendous number of evictions in California, "Eviction Delay" services have become a serious problem for landlords. These pseudo-legal or paralegal services charge their "clients" hundreds of dollars to file frivolous junk boilerplate motions in order to delay the eviction. Most of these services use pirated motions drafted by attorneys who have used them in cases with merit. They simply change the case number and names of the parties and file the motion without regard to the facts or law.

Unfortunately, the California Code of Civil Procedure allows the filing of such motions and these motions are successful in temporarily delaying an eviction case.

Tenants who are tempted to resort to such tactics to "buy time" should think twice. Filing frivolous pleadings with the Court for the sole purpose of delaying a proceeding, causing an opposing party to incur unnecessary fees/costs, or for some other bad faith purpose can result in the Court imposing monetary sanctions against you. The Court also has the discretion to strike a Tenant's Answer and enter a default as a terminating sanction. Consider that you may win in the short run, but in the end the Sheriff will still perform a lockout and an unlawful detainer judgment will appear on your credit report which will have a negative effect on your ability to obtain credit and rental housing. In addition, the Landlord can obtain a money judgment which may be renewed every 10 years.

Claim of Right to Possession

In some cases when the Sheriff attempts to perform a lockout, a third party will hand a Claim of Right to Possession form to the deputy. This individual will claim to be an occupant of the Premises but was not named in the Unlawful Detainer lawsuit. The Sheriff will immediately stop the lockout until the Court holds a hearing on whether or not the alleged occupant should have been named as a defendant in the lawsuit. The hearing will take place within a week or later if the individual posts 15 days rent.

If the Court decides that the claim is valid, the Court will allow the occupant to become a Defendant in the lawsuit and raise any defenses that could have been raised by the other named Defendants. If the Court decides that the claim is invalid, it will be denied and the Sheriff will be ordered to continue with the lockout as soon as possible. Very often such claims are denied because the "claimant" does not appear at the hearing but there is enough of a delay to buy the Tenants extra time in the Premises.

Tip: The only way to prevent this type of delay is to serve a form with the Unlawful Detainer lawsuit known as a Pre-judgment Claim of Right to Possession. This form gives any unnamed occupant the right to identify himself or herself so that they can be added to the lawsuit before the lockout. The drawback of serving this form is that it delays the case by an additional five days since the unknown occupant has ten days to respond to the Court instead of only five.

after the lockout

disposal of the tenant’s property

If the Tenant is evicted by the Sheriff, the law allows the Tenant 15 days to claim any personal property left behind at the Premises. During this time period, the Landlord is obligated to store the property in a safe place, either in the rental unit or a storage facility. If the Tenant wishes to claim the property, reasonable storage charges can be demanded, but it is usually not worth the Landlord's trouble to demand such charges since most Landlords simply want the Tenant's personal property off the Premises. Under no circumstances may the Landlord hold the Tenant's property hostage by demanding that the Tenant pay past due rent or other charges. This could trigger a lawsuit by the Tenant for conversion (stealing) his or her property. Always take an inventory of the personal property and take pictures or a video tape of the items.

If the property appears to have a fair market value of less than $300, then it can be disposed of by the Landlord after the 15 day period. If the property is worth more than $300, the Landlord must auction the property through a public sale. The Notice of the time, date and place of the auction must be published in a newspaper of general circulation once per week for two consecutive weeks. The auction can then take place five days or more after the last Notice was published.

accounting for the security deposit

California law requires the Landlord to provide the Tenant with a written accounting of the Tenant's security deposit within 21 days of regaining possession of the property, unless the rental agreement provides for a shorter time period. The Landlord can deduct delinquent rent, cleaning fees, repairs above normal wear and tear and any other damage which can be reasonably attributed to the tenancy. If there is a balance remaining, it must be returned to the Tenant.

Landlords are cautioned to take this law seriously and to fully comply. The law allows Tenants to sue the Landlord for failure to comply with the law and many Tenants have been successful in recovering the full amount of the security deposit plus punitive damages for the Landlord's failure to make an accounting or bad faith retention of the security deposit when it should have been returned to the Tenant.

recovering your money

If the Security Deposit is not adequate to cover all of the monies owing to the Landlord, a money judgment must be obtained. If there is a trial and the Landlord prevails, the Court will usually enter a money judgment at that time. If the case is by default, the Landlord can obtain a default money judgment.

Please note that the judgment would only include rent, court costs, and attorney fees, if applicable. IT CANNOT include any physical damages to the rental unit, or prospective rent that would become due under an unexpired lease. Such charges would have to be obtained by way of a small claims court action or other civil action.

In California a judgment is valid for 10 years and can be renewed every 10 years. Our firm works with investigators and collection agencies with good track records of locating debtors and collecting judgments for our clients. Please contact us if we can assist you in this area.

DAVID S. SCHONFELD

A Professional Law Corporation