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Eviction Overview in California

Last edited 19 days ago by Ted Broomfield

Summary: This blog aimed at residential landlords attempts to provide a fairly comprehensive, but high level guide to eviction.

Three ways to regain possession (1) negotiate; (2) sue; (3) lockout [almost always illegal and severely penalized]

In general, there are three ways to get people off property when the person had initially obtained possession lawfully: (1) negotiate; (2) sue, usually under summary procedure of for forcible entry, forcible detainer or unlawful detainer; or (3) lockout, is almost always illegal and can cause you to incur very large civil money damages to the person who was locked out.

These processes are codified in the California Code at Code of Civil Procedure section

1161⁠

[Unlawful Detainer], Code of Civil Procedure section

1160⁠

Forcible Detainer, or Code of Civil Procedure section

1159⁠

[Forcible Entry].

Rent control complicates eviction

Rent control is a term of art for a broad set of rules at the City, State and Federal level that impact the rights of the landlord to evict and processes of eviction.

Some cities have local rent control. In 2019, the state enacted statewide rent control for all non-exempt residences. Civil Code section

1946.2⁠

]. Even if a residence would otherwise be exempt, if the tenant was not properly notified of the exemption, it fails, and the tenancy is under State Rent Control. Rent Control governs what a tenant can be evicted for, the notice requirements of evictions, and in some cases, how much rent can be raised.

For example, if the tenancy is a section 8 tenancy, where the rent payments are subsidized, it appears as if the notice period [described below] must be thirty [30] days, not three (3) days.

Lawsuit for Possession must be based on [Perfect] Written Notice, Properly Served

In general, Forcible Detainer and Unlawful Detainer must proceed first upon a written Notice that is properly served on all occupants.

The contents Notice must meet the requirements of the applicable code. I am unable to state the requirements of the Notice, because it depends on local ordinance, what tenancy rules apply, and the basis.

After the Notice period ends, in theory, the tenancy terminates. Importantly, the occupants right does not terminate, and the landowner does not have any right to occupy or enter the property.

I say, in theory the tenancy terminates, because the sufficiency of the notice is always in question and subject to attack by the occupants.

Stated another way, simplified, and in general, the Notice must be perfect. [

Bevill⁠

Zoura⁠

(1994) 27 Cal.App.4th 694, 697]. What is this means is that virtually all litigation in landlord-tenant must be based upon an initial written notice to the tenant and if that notice is defective in content or delivery, the litigation cannot proceed, and the case will likely be dismissed.

Therefore, it is only in theory that the tenancy terminates when the notice period terminates. It simply cannot be determined if the notice was adequate and terminated the tenancy when stated until much later in litigation. If the notice was not adequate, the tenancy did not terminate.

The Notice that terminates tenancy must be properly served

Served means legally delivered to the recipient.

Service of the Notice for terminating tenancy may be personal, meaning placing the papers in the occupant’s hands or at the occupant’s feet, explaining the nature of the papers. Service may also be by posting on the door and mailing. When mailing, it is best practice to add five (5) business days to compute when the notice terminates. Remember, do not count Saturdays, Sundays or Holidays.

After Notice period, if the occupant remains, the owner has no [more] rights to possess or enter

Note, that after the Notice period ends, the landowner has no additional rights to possess or enter.

Instead, the occupant’s status changes from tenant to either “holdover,” or “tenancy at sufferance.” The distinction between the two is not material for this communication.

The owner can still enter, with 24-hour written notice presumptively valid. Civil Code section

1954⁠

After the Notice period ends, the Landowner can sue; frequently done using forms

After the notice period ends, the landlord can sue the tenant for the appropriate cause of action. A cause of action is a set of words that comprises legal conclusions based on substantive facts.

Explained, the substantive facts are that the person living in the rental unit did not timely pay, was served the proper notice, still did not timely pay, and therefore the landlord seeks judgment for unlawful detainer. Stating the proper words that must appear on the face of the complaint that comprise a legally valid cause of action is beyond the scope of this communication. Often, an Unlawful Detainer is filed on an optional Judicial Council Form

UD-100⁠

and if properly completed that form states a cause of action for Unlawful Detainer.

As in all California litigation in order for the Court to actually be able to assert any power over the defendant, referring to the occupant, the occupant must be served with process, meaning the complaint, and the Summons and other papers.

The Summons is the paper that gives the Court power over the defendant when the defendant is properly served. In Unlawful Detainer [generally eviction], the Summons must be completed on California Judicial Council Form

SUM-130⁠

Generally, process be personally served on the defendant, meaning placed in hand or at feet with an oral description of the nature of the papers. If the Summons is not served, the Court literally has no power over the defendant.

Other papers that must be completed and filed include, the Civil Cover Sheet on California Judicial Council Form

CM-010⁠

and Plaintiff’s Mandatory Cover Sheet and Supplemental Allegations on Form

UD-101⁠

It is not necessary, but strongly advisable to also serve simultaneous with process the Prejudgment Claim of Right to Possession on Form

CP 105⁠

. The reason the Prejudgment Claim of Right to Possession should be served is because if the landowner wins possession of property and if the Prejudgment Claim of Right to Possession had not served, then the Sheriff will only remove people named on the complaint.

Stated another way, if the landlord does not serve the Prejudgment Claim of Right to Possession on Form

CP 105⁠

and the landlord wins the case, the Sheriff will remove only people named on the lawsuit and anybody else present at the property will get to remain there. The eviction lawsuit will effectively fail.

You may also want to prepare an unsigned Notice of Acknowledgement and Receipt and California Judicial Council Form

POS-015⁠

and serve it with process. This is because service can often be time consuming, expensive and frustrating. Service can be accomplished if the defendant acknowledges receipt of the papers by signing and delivering the Notice of Acknowledgement and Receipt to the landowner. The defendant may not sign and return it, but, who knows?

Make sure to file the proof of service of summons on California Judicial Council Form

POS-010⁠

and make sure that that proof of service shows services of the Prejudgment Claim of Right to Possession.

Serve process personally, eg print file-stamped copies of the papers, and deliver them to each defendant

Again, service of process can be frustrating, time consuming, and risky.

In theory, personal service is easy deliver papers to the hand or feet of the defendant and orally describe the nature of the papers.

In practice, service is often disputed.

Some, but not all, process servers are notorious for misstating facts on their proofs of service.

Again, if the defendant specially appears to dispute service and wins, personal service is not accomplished and the Court has no power over the defendant.

Note, personal service cannot be made in the Courtroom, but, it can be made outside the Courthouse.

The legal authority for personal service is Code of Civil Procedure section

415.10⁠

Litigation and the phases

Most California Civil Litigation has six (6) phases: (1) pleading; (2) discovery; (3) expert discovery; (4) alternative dispute resolution; (5) trial; and (6) post-trial.

You can see more about the phases of litigation in

summary of the phases of litigation⁠

blog, or my

detailed phases of litigation⁠

blog.

The longest phase of litigation is the discovery phase. You can learn about the meaning of the terms or jargon of litigation by using my

Glossary of Litigation⁠

. Discovery is the official process where the parties formally exchange evidence that may be admitted at trial. The main tools of discovery are written discovery, deposition and inspections. Written discovery includes interrogatories, meaning questions calling for written explanations, requests for admissions, meaning questions that require the responding party to admit, deny or state an inability to admit or deny, and demand for documents. Inspection can be an inspection of a property, or even a bodily inspection if at issue. Deposition is an oral question and answer session that can be required to take place in person.

You can see some specific tips discovery, like,

depo tips⁠

at my blog

After discovery is Expert Discovery, ADR, then trial and post-trial. Again, for detailed explanations, see my

detailed phases of litigation⁠

blog.

If you want help creating the paperwork of the case, see my

Practice Guides to Litigation Processes⁠

FREE, UNARRANTED RESOURCES TO USE AT YOUR OWN PERIL

The Superior Court of California has at least two high level guides on Unlawful Detainer, but, it is not specific to any county.

⁠

https://selfhelp.courts.ca.gov/eviction⁠

⁠

https://selfhelp.courts.ca.gov/eviction-landlord/fill-out⁠

⁠

San Francisco County [possibly not your county] has a decent single page flowchart of the UD process.

⁠

https://sfrb.org/sites/default/files/FileCenter/Documents/1916-591%20Unlawful%20Detainer%20Procedures.pdf⁠

⁠

The County of Placer Superior Court of California has a very high level six step guide to filing an Unlawful Detainer that could help. The website address is:

⁠

https://www.placer.courts.ca.gov/sites/default/files/unlawful-detainer-eviction-instructions.pdf⁠

⁠

The Self-Help website of the California Superior Court Orange County has detailed instructions on how to fill out an Unlawful Detainer at the following website address

⁠

https://www.occourts.org/self-help/self-help-landlord-tenant/preparing-your-complaint⁠

⁠

There are also detailed instructions on filing and serving that complaint at the following website address:

⁠

https://www.occourts.org/self-help/self-help-landlord-tenant/filing-and-serving⁠

⁠

The Court then has instructions for Next Steps

⁠

https://www.occourts.org/self-help/self-help-landlord-tenant/after-service⁠

⁠

That County’s Court has details on settling out of Court

⁠

https://www.occourts.org/self-help/self-help-landlord-tenant/settling-out-court⁠

⁠

King County has a package of Unlawful Detainer Documents

⁠

https://www.kings.courts.ca.gov/sites/default/files/kings/default/documents/Unlawful_Detainer_Packet.pdf⁠

⁠

If the defendant does not file a responsive pleading within the appropriate time limits, this packet provides instructions on how to obtain a Default

⁠

https://www.courts.ca.gov/partners/documents/UD_default_property_sample.pdf⁠

⁠

Riverside County has a short list of Unlawful Detainer Resources

⁠

https://www.rclawlibrary.org/wp-content/uploads/unlawful_detainer_20200229-1.pdf⁠

⁠

The California Judge’s Bench Guide can be found at the following website address [note, this resource is aimed at judges, and is likely beyond the ability of lay people to use/apply]

⁠

http://www2.courtinfo.ca.gov/protem/pubs/bg31.pdf⁠

⁠