Residential Eviction Process

Share This Post:

Prejudgment Claim of Right to Possession

The landlord has the option of providing notice when the unlawful detainer is served to all individuals who claim a right to occupy the leased property via a Prejudgment Claim of Right to Possession. Taking this step prevents subsequent third-party claims. This precautionary measure is advisable in the following scenarios:

  • If there are unauthorized individuals living in the rented property or the landlord suspects there are unknown persons living in the unit
  • When the tenant has previously filed Third Party (i.e., “Arrieta”) claims in past instances
  • When the basis for eviction is based on nuisance
  • In commercial tenant contexts
  • When there is a foreclosure

Filing for an Unlawful Detainer

Should a tenant fail to timely resolve issues specified in the formal notice, the landlord has the option to sue them for unlawful detainer. This is also referred to as an eviction and is a summary proceeding prioritized by the judiciary over all categories of civil cases with the exception of temporary restraining orders. Because the law imposes a relatively short timeframe in which residents may respond compared to other civil cases, the court will not tolerate technical errors of any sort and will likely dismiss the case immediately if the landlord makes an error.

Determining the Proper Court & Filing

The unlawful detainer should be filed in the Superior Court for the applicable judicial district that processes cases where the property at issue is located. Note that Small Claims Courts do not exercise jurisdiction over these types of cases.

The documentation informing the tenant they are facing a lawsuit is called the “Summons”. The Summons provides the tenant five days to submit a response or the court will grant a default judgment in favor of the landlord without a formal hearing. The five-day response window does not include judicial holidays or the weekend. The “Complaint” sets forth the legal basis for the landlord to repossess the premises and includes all required elements the landlord must substantiate to the court to obtain a ruling.

The unlawful detainer action could be delayed by up to three weeks if all tenants are not personally served with the Summons and Complaint. The judiciary requires the landlord to make three separate attempts to personally serve the tenant with the proper documentation. These attempts must be made at three different times of the day on three different days prior to resorting to an alternative service method or requesting an Order to Post from the court. Should an alternative method or Order to Post be utilized, the tenant is afforded an additional ten days in which to respond.

Default Judgements

In cases where the tenant fails to timely respond to the Summons and Complaint, the landlord should petition the court for an “Entry of Default.” This allows the plaintiff to avoid litigation and obtain a writ. The ruling will be for possession of the property and does not include financial damages. Once the tenant has been physically removed from the premises by the Sheriff, then a judgment for monetary damages can be entered against the resident to get back lost rent, court expenses and attorneys’ fees.

Tenants may request to be relieved from the forfeiture of their lease agreements even following entry of judgment in an unlawful detainer lawsuit in favor of the landlord. The resident may submit a motion for the restoration of the lease at any point before the property is officially returned to the landlord. This motion includes a written application for hardship relief that is required to be served to the landlord at least five days in advance of the hearing to contest the issue.

To effectuate the “Judgment for Possession,” the court issues a “Writ of Possession” ordering the Sherriff to enforce the court’s orders. The notice of eviction is posted on the leased property and following the sixth day, the Sherriff coordinates with the landlord a date to change the locks. If the tenant is still present, the Sheriff will physically remove them, and the landlord will be granted a “Receipt for Possession” granting them authority to repossess the property. If the tenant returns, they can be arrested for trespassing. The landlord can then request a Writ of Execution in order to pursue monetary damages.

Obtaining Judgment in Contested Cases

The tenant needs to file responsive pleading in order to contest the unlawful detainer—typically accomplished via a document called an “Answer” that sets forth the tenant’s reasoning as to why they should continue to occupy the unit. Potential affirmative defenses to the contested eviction that the occupant can raise include:

  • Breach of the warranty of habitability
  • Retaliatory eviction
  • Discrimination
  • Waiver

The tenant bears the burden of proof in establishing his affirmative defenses; however, landlords should be prepared to produce witnesses and evidence to refute these claims. Once all parties have responded, the case is “at issue” and proceeds to trial. The court will schedule the trial dates within twenty days after receiving a request from either party to set the case for trial.

The California Constitution provides the right to a jury trial for both residential and commercial defendants in unlawful detainer cases—a right that cannot be waived prior to the filing of the lawsuit. Certain tenants intentionally request a jury trial to create further delays for landlords seeking collections. In these scenarios, landlords should ensure that all requirements have been met by the opposing party in order for them to demand a jury trial. The request for a jury trial must be submitted within a certain timeframe and in the proper format along with the appropriate jury fees. The landlord may also file a motion for summary judgment. This is when both sides mutually agree on the underlying facts of the case and the issue can be resolved solely on the basis of law without trial. Alternatively, if only certain facts are in dispute, the landlord may file a motion asking the court to curtail the scope of the jury to limited facts—thereby reducing the time and cost of litigation.

The parties may decide to settle the case, which typically involves both sides making certain concessions to come to a mutual agreement instead of litigating. If a settlement is determined to be the ideal resolution, then a “Stipulation for Judgment” should be submitted to the court, who can then enforce the agreement in the case of a potential future breach.

After a tenant has been evicted, it is important for landlords to follow certain steps to mitigate risks. Read more about the post-tenancy eviction process.

Contact Geraci Law Firm today to review your rights as a landlord. Our experienced team will walk you through your options and advise you on next steps.

Questions about this article? Reach out to our team below.