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California Eviction Guide For Tenants and Landlords
©2018, Melissa C. Marsh.
Written: 3/1/2009  
By: Melissa C. Marsh
www.yourlegalcorner.com


The Eviction Process (los Angeles, California).

Well that would be awfully lengthy discussion, so we will do it in brief. The eviction process begins with a notice (3-Day Notice to Pay or Quit, 30-Day Notice To Vacate, or 60-Day Notice To Vacate). If the tenant does not move out by the end of the notice period, the landlord can file a lawsuit (unlawful detainer) by filing a Summons and Complaint ("UD"). In a UD, the landlord is called the plaintiff and the tenant is the defendant.

After the UD is filed, the landlord must have the tenant served with the Summons and Complaint which takes anywhere from 1 to 10 days. The person who serves the Summons and Complaint must file the Proof of Service of Summons. Once the tenant is served the tenant has ONLY 5 DAYS to answer the complaint. If the tenant doesn't respond, the court will enter a default judgment in favor of the landlord and the tenant will be evicted by the Sherriff unless the tenant quickly files a Motion For Relief from Default.

If the tenant responds to the initial Summons and Complaint within the 5 day period by filing a written Answer (.PDF) (along with any demands for discovery, if necessary), or a motion to quash for improper service, or a demurrer, then either party may request a trial before a judge or jury and the court hearing must occur within 21 days of the demand. Upon the conclusion of the hearing, the court will render its verdict.

How to respond to an UD Summons and Complaint.

If a tenant is served with an unlawful detainer complaint, the tenant should get legal advice or assistance immediately as the tenant only has 5 days to respond. This advice can be acquired from an attorney for a fee, or from a legal aid organization if the tenant meets the low income requirements. Two legal aid organizations include: (1) Bet Tzedek Legal Services and (2) Legal Aid Foundation Of Los Angeles.

To respond to the landlord's Summons and Complaint, the tenant must file a written Answer (.PDF). The form with the appropriate Court name and address already preprinted on the form can be obtained from the Clerk's Office at the court in which the original Summons and Complaint was filed. Instructions for completing an answer to a Summons and Complaint filed in Los Angeles Superior Court can be viewed here. To file the answer, the tenant will be required to pay the required filing fee (about $160), or submit an Application For Waiver of Court Fees and Costs. To qualify for the waiver, the tenant will need to prove that s/he: (1) gross monthly household income is less than $1,128.13 per month if single ($1,517.71 per month if two people are in the household and $1,907.20 if three people are in the household) or (2) receives assistance from: SSI, SSP, Food Stamps, CalWorks/TANF, or general assistance. Typically a Medi-Cal Card, Food Stamp ID Card, or bank statement showing an SSI Deposit will suffice.

It is very important that the tenant read the Landlord's Complaint carefully and respond to each of the allegations in the answer. The tenant should read the Complaint carefully and make sure that s/he says in the answer if there is anything s/he doesn't agree with or things that aren't true. For example, if the tenant disagrees with the amount of rent claimed owed by the landlord, the tenant should say so, and explain why that amount is not owed. If the rental unit is infested with rodents or bugs, the tenant should say so and explain when she asked the landlord to fix the problem and what the landlord did. If the rental unit needs a lot of repairs, the tenant should say so and explain when she asked the landlord to make repairs, the response, whether the tenant reported the problem to the housing department, whether the tenant used the repair and deduct method, and if the tenant believes the landlord is retaliating against him/her for complaining.

After the Court Hearing.

If the court rules in favor of the tenant, the matter ends; the tenant can continue to reside in the rental unit and the court may award the tenant his or costs and attorney's fees.

If the court rules in favor of the landlord, the court will order the tenant out by issuing a "writ of possession" and award the landlord any unpaid rent, other monetary damages, court costs and attorneys fees (if the rental agreement has an attorneys fees clause). The court clerk will then send the order to the Sheriff or Marshall. Within one to three days, a peace officer will deliver a 5 day notice to the tenant demanding the occupants of the rental unit vacate or be evicted. Upon expiration of the 5 days, the peace officer will physically remove the tenants and restore the landlord to possession. The peace officer will not, however, move or accept responsibility for any of the tenant's personal belongings which may remain on the premises. If the tenant's belongings remain in the rental unit, the landlord will be required to store them for 18 days but the tenant will also be required to pay the landlord a reasonable fee for the storage. If the tenant does not retrieve his or her personal belongings within 18 days, the landlord can mail the evicted tenant a notice to pick them up, and if there is no response the landlord can either sell them at auction, or keep them (if their value is less than $300).

A tenant who loses an unlawful detainer lawsuit may appeal the court's ruling, but in most cases the tenant will still have to move out before the appeal is heard. The one exception is where a tenant files a petition for stay of enforcement of the judgment, or a petition for relief from forfeiture, and the tenant is able to prove to the court that: (1) the tenant or the tenant's family will suffer extreme hardship; (2) the landlord will not suffer irreparable harm; and (3) the tenant can make his or her rent payments. If the court rules in favor of the tenant, the court will order the tenant to make his or her rent payments to the court.

Depending on what the landlord does and how the tenant responds, the whole process typically takes between one and three months. This is why landlord's are often advised to avoid the eviction process if at all possible.

Default Judgment.

If the tenant fails to file a timely response to the Summons and Complaint, the landlord can ask the court to enter a default judgment against the tenant by filing Form CIV100. If the tenant has a valid reason for not responding in a timely manner (e.g. wasn't served, or was in the hospital, or otherwise incapacitated), the tenant can ask the court to set aside the default judgment. This must be done fairly quickly and the process can be quite complex.

Unnamed Occupants Living in the Rental Unit.

Landlords must be careful when filing an unlawful detainer to name all of the individuals who occupy the premises. In some cases, these individuals are not named in the rental or lease agreement, but an eviction will only be valid against the named parties. To ensure the eviction process goes smoothly, the landlord can instruct the process server who serves the summons and complaint on the named defendants to ask whether there are other occupants living in the unit who have not been named as defendants. If there are, the person serving the summons and complaint can serve each of the so-called "unnamed occupants" with a blank Prejudgment Claim of Right to Possession (.PDF) and an extra copy of the summons and complaint.

If an unnamed occupant finds the sheriff at the door, the unnamed occupant whose name does not appear on the writ of possession, may claim a right of possession. Within two business days after completing the Claim of Right to Possession form and giving it to the sheriff, the unnamed occupant must deliver to the Court Clerk the court's filing fee (or a completed "Application for Waiver of Court Fees and Costs") and an amount equal to 15 days' rent for the rental unit (the writ of possession must state the daily rental value of the rental unit). If the rent is not deposited with the court, the court will hold the hearing within 5 days. If the rent is deposited with the court, the court will hold the hearing between 5 and 15 days later.

At the hearing, the court will decide whether or not the previously unnamed occupant has a valid right to stay in the rental unit. If the court decides that the occupant does have a valid claim, the amount of rent deposited will be returned to the occupant. The court will then order further proceedings, as appropriate to the case. If the court finds that the occupant does NOT have a valid claim, the court will award the landlord an amount equal to the daily rent for each day the eviction was delayed, the balance will be returned to the occupant, and the sheriff or marshal will continue with the eviction. See California Civil Code 415.46 and 1174.3

Retaliatory and Discriminatory Evictions.

Landlords would be wise to avoid filing an Unlawful Detainer Complaint against a tenant merely because the tenant exercised a legal right (e.g. complained about a problem or used the repair and deduct method). Retaliation is a valid defense to an eviction and if a court finds, based on the tenant's answer and evidence, that the landlord's attempted eviction was retaliatory or discriminatory, the landlord may find himself the subject of a lawsuit for violation of the Fair Employment and Housing Act. See, California Civil Code 1942.5.

Cost.

Fee vary, but a landlord should expect to pay about $750 to file for the eviction.

A tenant, on the other hand, should expect to pay somewhere in the vicinity of $750 to $1,500 to have an attorney handle an unlawful detainer defense. Tenants can significantly reduce the fee to about $350 to $500, if they merely have the attorney prepare the necessary paperwork, and appear on their own behalf. If you just need some answers, or a little advice, tenants should expect to pay about $300 per hour.

Due to the economy and the tremendous burdens faced by tenants who don't qualify for free legal aid, we are currently offering a telephone consultation (up to 15 minutes) for a flat fee of just $49 (Advanced Payment via Paypal Required).


Copyright 1999-2018 Melissa C. Marsh. All Rights Reserved. All Information on this website is subject to a Disclaimer and Use Agreement. This information is provided as general information only and should not be construed as legal advice. We advise you to seek the advice of competent legal counsel to address your own specific questions, facts and circumstances.

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© Copyright 1999-2018 Melissa C. Marsh. All Rights Reserved