Fifteen years ago, I was renting a converted garage in Palo Alto, California that the owners wanted to turn over to a family member. I was given a thirty-day eviction notice and did not decide to fight it, as a little research revealed that the landlord was within their rights to evict me in order to turn the dwelling over to relatives. (In the days before Web browsers, legal research was a little more difficult.) I enjoyed living in Palo Alto, but frankly, the garage was not the most ideal place, the bedroom being in a upper story that had a severe pitch to the ceiling, making the available space “upstairs” extremely limited.
I willingly moved out of my Palo Alto apartment and found a cheaper and better rental unit closer to my workplace. I was in an income bracket that would qualify as middle-class in most every other part of the country, and had sufficient funds to finance a move. (My fellow employees and myself joked that this income, roughly equivalent to the average national income for a family of four, was the “minimum wage” in California in the early 1990s.)
Not every tenant facing eviction was in the position I found myself. Either due to severe financial problems or grievances against a landlord, some tenants are unable or unwilling to surrender a rental property. In the case of tenants who will not surrender a property after being given proper notice by the landlord, the landlord typically will start the eviction process by filing an unlawful detainer lawsuit. This type of lawsuit is geared towards a summary judgment and will move very quickly through the courts.
The Unlawful Detainer Lawsuit
The defendant, the tenant upon whom the lawsuit has been served, is given a maximum of five days to respond to the lawsuit in writing after being served by the plaintiff, the landlord. The court typically hears the case within 20 days after the tenant has filed an answer.
The tenant/defendant is assured of a court hearing where s/he can contend that the landlord has no right to evict them. The landlord/plaintiff is not allowed to lock out tenants, cut off their electricity or water, seize the tenant’s belongings or any other coercive measures to carry out the eviction. Landlords who do take coercive measures can be liable for legal sanctions of up $100 per day for the time they used illegal methods to evict the tenant.
At the court hearing, both tenant and landlord will explain their case and present evidence and explain their case. The court may find that the landlord is in error and bar the landlord from evicting the tenant. If such a decision is rendered, the tenant will not have to vacate the property and the landlord may be ordered to pay court costs, such as the tenant’s filing fees and attorney’s fees.
If the tenant loses the case, the court will issue a writ of possession that orders the county sheriff to remove the tenant from the property if the tenant does not voluntarily vacate it within five days from the date that the writ was served. If the tenant is still in possession of the property at the end of the fifth day, the sheriff is authorized to physically remove and lock the tenant out and seize any belongings left in the rental property. The landlord cannot take possession of the property until after the sheriff has removed the tenant.
In cases where a tenant is being evicted for failure to pay rent, the court also may award the landlord unpaid rent and also may award the landlord damages, court costs, and attorney’s fees. In addition, if the court finds that the tenant acted with malicious intent in not surrendering the property, the court may award the landlord up to $600 as a penalty. The judgment against the tenant will be reported on their credit report for seven years.
Tenants: How to respond to an unlawful detainer lawsuit
Tenants served with an unlawful detainer complaint should immediately obtain legal advice or assistance from tenant organizations, housing clinics, legal aid clinics or private attorneys. You only have five days to respond in writing to the landlord’s complaint, and if you fail to respond by filing the correct legal document with the Clerk of Court in which the lawsuit was filed you lose your legal defense. (A copy of the form to file an answer with the Clerk of Court’s office is available on-line at www.courtinfo.ca.gov/cgi-bin/forms.cgi.(form 982.1(95)).)
A filing fee, typically of about $180, is required when filing the response with the Clerk of Court. Tenants/defendants unable to pay the filing fee can file a request for a waiver to the fee, called an “Application for Waiver of Court Fees and Costs” (which can be obtained on-line at www.courtinfo.ca.gov/cgi-bin/forms.cgi (form 982.1(17)).
After you have filed your written answer to the landlord’s complaint, the Clerk of Court will mail to both you and the landlord a notice of the time and place of the trial. If you don’t appear in court, a default judgment will be entered against you.
Default Judgments
Upon application by the landlord/plaintiff, the court will enter a default judgment against tenant/defendants who fail to file a written response to the landlord’s complaint. Subsequently, the defendant will receive a notice of judgment and writ of possession. Tenant/defendants who seek to get the court to set aside a default judgment face a daunting task, as it is a complex legal proceeding.
Contesting an Eviction
If you have a legal defense for the landlord’s complaint, you must state it in the written answer you file with the Clerk of Court by the end of the fifth day. Defenses include:
-The landlord’s three-day notice requested more rent than was actually due;
-The rental unit violated the implied warranty of habitability;
-The landlord filed the eviction action inretaliation for the tenant exercising their rights or due to a complaint to the building inspector about the condition of the rental property.
Another defense is the failure of the landlord to properly serve the summons and the complaint. In such cases, the defendant can file aMotion to Quash Service of Summons. In cases where the landlord’s complaint has a technical defect or improperly alleges a right to eviction, the tenant/defendant can file a Demurrer.
The court will enter a default judgment in favor of the landlord in cases where tenants fail to file a written response by the end of the fifth day, the court will enter. The landlord/plaintiff will use the default judgment to obtain a writ of possession. The court also may award the landlord unpaid rent, damages and court costs.
Parties to an unlawful detainer lawsuit have the right to a jury trial, and either party can request one. After the tenant/defendant has filed his/her answer to the landlord/plaintiff’s complaint, the court will send the defendant a document called a Memorandum to Set Case for Trial, which officially is known as a “Request/Counter-Request to Set Case for Trial” form (Form UD-150).)This will indicate whether the plaintiff has requested a jury trial. If not, parties providing advice to tenants typically recommend that defendants lacking legal representation do not request a jury trial due to the complexities of presenting a defense in such a forum.
In rare instances, a losing tenant can convince the court to allow them to remain in a rental property via the legal mechanism of relief from forfeiture of the tenancy. Relief from forfeiture can be obtained in cases where the tenant convinces the court that they would face severe hardship if evicted from the property, and that the tenant is able and willing to pay all of the rent that is due and/or will fully comply with the lease or rental agreement. Court-ordered relief from forfeiture is available only in cases where the tenant has maintained possession of the property and it has not been turned over to the landlord.
Tenants who lose their unlawful detainer lawsuits can appeal the judgment, but unless they can obtain a relief from forfeiture judgment from the court, they will have to surrender the property to the landlord. A court typically will not grant a tenant’s request for a stay of enforcement unless it finds that the tenant will suffer extreme hardship and the landlord will not suffer irreparable harm. In those cases where the court grants a stay of enforcement, it will order the tenant to make rental payments to the court . A landlord who loses an unlawful detainer lawsuit also may appeal the judgment.
Writ of Possession
Tenants who fail to move out of a property after losing a case and the judgment against them becomes final will face removal by the county sheriff under a court-issued writ of possession, which is delivered to the sheriff by the landlord.
Before forcing a tenant to move out of the rental property, the sheriff will serve him/her with a copy of the writ of possession, which instructs the tenant they must move out of the property by the end of the fifth day after the writ is served. If the tenant fails to move out by the end of the fifth day, the sheriff will remove the tenant from the property and give the landlord possession of it. The losing tenant will bear the costs of the writ of possession service, which will be added to the other costs the landlord will collect.
Tenants who have not moved by the end of the fifth day will be physically removed by the sheriff. The sheriff will remove the tenant’s belongings left in the property, and may give them to the landlord for storage, who is permitted to charge the former tenant reasonable storage fees. If the tenant fails to reclaim their belongings within 18 days, the landlord can auction them off or keep them if their value is less than $300 after mailing a notice to the former tenant to come and pick them up. The costs of the sheriff’s forcible eviction may also be added to the judgment that the landlord can collect from an evicted tenant.
Reference:
- California Department of Consumer Affairs – The Eviction Process www.dca.ca.gov/publications/landlordbook/evictions.shtml
