What is an "Unlawful Detainer" ?
"Unlawful detainer", or UD for short, refers to the name of the official court complaint that a landlord makes when they want to evict a tenant. It's called the "unlawful detainer" because the landlord is claiming that the tenant is unlawfully "detainint" or holding back the property of the landlord. It is a Summary Proceeding, meaning the timeline to respond is shorter than other civil cases, but landlords must strictly comply with procedures.
What is the Overview Process of an Unlawful Detainer Like?
- BEFORE: Tenants must receive a written notice from the landlord terminating their tenancy.
- START OF THE UD: The landlord files a complaint in court, and serves court summons on tenant.
- TEANT RESPONDS: The tenant is given 5 business days to respond to the landlord's complaint. If tenant responds late they can automatically lose the case.
- HEARINGS & JUDGMENT: Depending on the choices made by the tenant, landlord, courts and attorneys the process can last between 3 weeks - multiple months and involve multiple hearings and mediations before the judge makes a final call.
- If the tenant loses their case: Sheriff's notice giving 5 days to leave.
- If the tenant wins their case: Must pay all rent due within 5 days.
IMPORTANT! Always file a written response to the Complaint, even if you've moved out! Even if you have moved out, you should file a written response (usually an Answer) unless the landlord or landlord's attorney has assured you, in writing, that the eviction will not proceed against you because you have moved out. The case is not officially over until a dismissal is filed by the landlord. If you move out but don't file a written response, and the landlord goes ahead and obtains a default judgement, you'll wind up having a judgement for rent that you perhaps do not owe, and for court costs. (You might also owe attorney fees, if your lease or rental agreement has a fees clause.)
What is the In-Depth Process of Unlawful Detainers Like?
One of the following is supposed to happen before a landlord can start the eviction process:
- Landlord serves tenant with a 3-day notice to pay, or cure-or-quit notice and the tenant remains on the property after notice has expired without having cured or paid.
- Landlord serves the tenant with a 30-day notice of termination (if tenancy is under 1 year) or a 60-day notice of termination (if tenancy is over 1 year) in compliance with statewide & local Just Cause for eviction protections. Tenant remains on the property after notice has expired.
- CAVEAT: Some landlords file court complaints against tenants without ever serving a notice on them in the first place. Because tenants have such a hard time getting representation, they lose some of these cases. This is not supposed to happen, but THIS HAPPENS! If you didn't get a notice and you get an eviction case, make sure to say so in your answer and every time you talk to the judge.
START OF THE UD
- The landlord takes their expired termination notice to the courthouse and files an "Unlawful Detainer Complaint"
The landlord must serve the tenant a "Summons and Complaint"
- This must be served in person by someone who is not the landlord
- If the landlord fails multiple times to serve it in person, they can "nail and mail" it to the door and put a copy in the mail
- Once the landlord has posted the Summons and Complaint, the tenant has 5 business days to file their response to this complaint in court (does not include weekends)
- CAVEAT: Often landlords skip the in-person service and go straight to posting the notice on the door. It is very hard to prove that a landlord didn't try to serve the notice, so it's not great to rely on this argument.
- Sample Summons
At this point tenant needs to file some kind of response to the landlords claim within 5 business days of the service of the summons:
3 primary ways to respond to a UD:
- Motion to Quash Service of Summons - Landlord failed to serve the Summons & Complaint correctly
- The Demurrer: Claims that even if everything in the landlord's complaint is true, it still isn't a legally viable reason to evict
- The Answer: this responds directly to the substantive claims made in the complaint by the landlord and is telling the tenants version of what happened
Generally, it's either denying one or all of the landlords claims, or asserting some kind of legal defense against the claims in the complaint.
Easiest to file because you can use a generic court form. This is where you list all of your defenses for why you should not be evicted. If you are not sure if a defense is valid, go ahead and include it.
- Also, this is where you request a Jury trial. ALWAYS REQUEST A JURY TRIAL. It will give you leverage in negotiations, because juries are more sympathetic to tenants than Judges, and because you get a bit more time.
Requesting a jury trial requires filing more paperwork (called a "Demand for a Jury Trial") at court and on the landlord and also costs $150
- Tenants can apply for a "Jury Trial Fee Waiver"!
- Once filed, tenant has 10-days to amend the answer, so even if you don't yet have an attorney and don't know what claims to make, you can still file and then change it later
- This might be all the legal help you get: Many over-burdened legal aid services who can't provide full representation will just help tenants fill out the answer and provide them some advice on how to present their case in court.
- If you are unable to pay the filing fees, you may apply to have them waived on the basis that your income is low, by filing a Request to Waive Court Fees form. You may have to appear at a hearing for this waiver to be granted. Do not miss this hearing, because then your answer could be struck and you could lose automatically.
HEARING AND JUDGEMENT
If no answer filed --> Default Judgment
- If the tenant fails to respond to the Summons within the 5 court days, the landlord can file for a "default judgment" at any point thereafter
- NOTE: default judgements are not automatic, the landlord must file with the clerk so always have the tenant call the court to see if a default has been entered
- At this point, the tenant goes through no trial and the Sheriff can issue a notice and the landlord can actually remove you and lock you out of your home.
If answer filed --> Settlement and/or Trial
- Time your settlement conversation carefully.
- Keep in mind the case can settle at any time, and everyone would rather settle than go to trial, no matter what they say because trial is expensive and the outcome is uncertain. Be prepared to stand up for yourself, and hold your ground. Also know that once you offer do some something, you can't really go backwards and ask for more unless the circumstances change in your case.
- Unfortunately, many lawyers are legal bullies and may try to push you around and intimidate you, but if you hold your ground you change the dynamic and they will eventually have to treat you more civility.
Requesting a Trial
- After tenant files their answer, the landlord generally will request a trial date by filing a Request to Set Case for Trail - Unlawful Detainer (Form UD-150) informing the court of the type of trail
- Once the court receives the Request for Trial, within about a week tenant should receive notice of the time, location, and date of the trial and/or of the court mandated mediation.
- If the tenant disagrees with anything in the landlords request, the tenant can file a Counter-Request - for instance, if tenant wants jury trial
- Often in courthouses that see a lot of evictions (think - everywhere in CA), the court will require the tenants and landlord to go through a mediation process with their attorneys prior to going to Trial to see if they can resolve the case without a trial.
- If you requested a jury trial, you will go through a jury selection process, and go through a series of conversations with the judge about which evidence can be shown to the jury.
- Landlord will present reason for eviction first, and then tenant will present their side and evidence
- Judge can ask tenant and landlord questions at any time
- Tenant has right to interpreter and ADA accommodations
Preparing for Trail
Clarify Narrative & Timeline
- Who did what when - be specific but also don't make things up
Collect Supporting Documents
- Witness statement
- Official reports
- Screen shots of texts
AFTER: The decision
If tenant wins:
- Tenant has to pay all rent
- Judge and jury will decide whether landlord must pay your attorneys fees
If tenant loses:
Court will give landlord "Judgement of Possession" and landlord then has to get the clerk to file a "Writ of Excution" that the landlord then takes to the sheriff to "execute" the decision
- Sherriff posts notice to tenants door informing tenant that in 5 days tenant must be gone or sheriff will remove them and change the locks
- Court may mandate that tenant has to pay landlord's attorneys * court fees, as well as any unpaid rent, and any rent for the time the tenant was illegally on the property
- Credit impact - if tenant loses, case is "unmasked" 60 days after the start of the case - on record for 7 years
Option: Post-Trial Relief from Forfeiture & Stays of Eviction
- Stopping the Eviction: Post-trial relief from Forfeiture - The court can "relieve" the tenant from the obligation of forfeiting the property if the tenant requests relief based on hardship CCP 1179 if the court finds that the tenant would suffer extreme hardship and that the tenant is willing to pay back rent and future rent
- Postponing the Eviction: Stays of eviction - The tenant can also request that the court delay the eviction in order to delay the sheriff's process
- Note: Both are only options if the tenant is still in the unit
- Tenant can appeal their case or file a motion to set aside the judgment, but the appeal can only argue an issue of Law not Fact (meaning, it can't dispute what happened, but instead whether the court interpreted the law accurately)
California Courts' Self-Help Guides