Unlawful Detainer Action aka EVICTION
- Ruben Martinez
- Aug 13
- 7 min read
Whether you're a landlord or a tenant, the truth of the matter is, EVICTIONS suck!
UNLAWFUL DETAINER ACTION
In California, the eviction process is referred to as an unlawful detainer action, or UDA for short. This is the process a landlord must take in order to lawfully retake possession of their property. Basically, the days when a landlord could change the locks or forcibly remove a tenant against their will, are long gone. Today, the law is clear. If you want a tenant out, you have to file an unlawful detainer action. Sounds lovely right? Now, how do you do it?
TERMINATE THE TENANT'S TENANCY
Whether a tenant signs a month-to-month or year long lease agreement, the rules in California are the same. Before you file an unlawful detainer complaint, which incidentally is the vehicle that gets the eviction ball rolling, you must first terminate the tenant's tenancy.
To terminate (i.e. end) a tenant's tenancy you must provide them with proper notice of termination, or alternatively, an opportunity to cure (i.e. correct) whatever lease violation they've committed. For example, if a tenant stays beyond their lease term then you'll need to notice them before you jump into bed with an unlawful detainer action. Equally important is the type of notice you give your tenant as different lease agreements and situations necessitate different types of notices (3-day notice to quit; 3-day notice to perform covenant or quit; 3-day Notice to Pay Rent or Quit; 30-Notice; 60-Day Notice; etc.).
However, today I'm not going to detail all the different types of notices and the situations that trigger them; because if I did that, this would no longer be a blog post but instead, a short novel. Anyway, check back in a few months, I plan on writing extensively about landlord/tenant notices and the situations that trigger them.
Awesome, so now that you've terminated the tenant's tenancy, what do you do?
FILE THE UNLAWFUL DETAINER COMPLAINT
Have you ever heard of the saying big endings start with small beginnings? Well, the same thing is true of evictions and unlawful detainer actions. Of course, winning an eviction trial from either the landlord or tenant's perspective is the BIG ENDING. But that begs the question, what in the unlawful detainer context constitutes the small beginning?
DRUM ROLL PLEASE....without further ado, let me introduce you do the unlawful detainer complaint. Also referred to as FORM UD-100, the complaint ladies and gentlemen is what gets the ball rolling and what starts your lawsuit. The complaint along with some other standardized court forms (Summons, Civil Case Cover Sheet, and Plaintiff's Mandatory Civil Case Cover Sheet) all of which you can find on courts.ca.gov will need to be filed with the court. You can do this electronically by using a platform like www.onelegal.com or in-person at the courthouse within the county where the property is located. Double-check beforehand as specific courthouses within your county handle unlawful detainer actions.
CONFORMED COPY: NOTICE THE DEFENDANT/TENANT
After you file the complaint, summons, etc. you'll wait for the court to send you conformed copies of all the paperwork you just filed. Sounds fun right? Basically, these are just certified copies that show you have an active unlawful detainer/eviction case and can now move onto the truly fun and enjoyable part of the case; i.e. noticing the defendant/tenant.
Now because his article is just an overview of the eviction process I am not going to go into exacting detail about all the ways you can screw up noticing the defendant/tenant with court paperwork, but I will say this. In no universe that I know of can you yourself as the landlord/party to an unlawful detainer action ever serve your own court paperwork.
Now if you are represented by an attorney, then your attorney can serve your paperwork, or a registered process server can serve your paperwork, shucks, even your Uncle Bobbo, assuming you have an Uncle name Bobbo (I know my daughters do) can do this for you.
For our sake, just know that you, the landlord and plaintiff of an eviction suit, CANNOT do this.
BALL IS THE DEFENDANT/TENANT'S COURT NOW
After you've properly served the defendant/tenant with the complaint, summons, etc. the CLOCK STARTS TICKING. This part is important because this can be the difference between a cost savings eviction case that causes minimal stress, time, and labor, and an expensive eviction case that results in trial, you missing a day or two of work, and this one is the worst, you losing the unlawful detainer action and starting back at square one. YIKES.
(a). The Demurrer, Motion, or Answer: The defendant has several options after they receive conformed copies of the your summons and complaints. They can file one of the above-stated responses to your unlawful detainer action or they can do nothing.
Obviously if they do nothing you'll prevail on a default basis and the case is over.
However, much of this boils down to TIMING.
(b). 10-days or 20-days to Respond: Whether the Defendant has 10 or 20 days to respond to your lawsuit will boil down to how they were served with your summons and complaint. If they were served personally meaning someone actually handed them the court paperwork then they will have 10-days to respond in one of the three ways outlined in subsection (a).
The 10-day period, however, does not include the day the summons/complaint was actually served, nor does it include weekends or court recognized holidays. This is important because you don't want to default them to early.
Then there is substituted service which means that the defendant was served in some other way then personally (post and mail; paperwork given to someone other than defendant who is not a minor). In the event this type of service is made the defendant will be given an additional 10-days to respond to your summons and complaint, which ends up totaling to more than 20 days after you factor in that certain days are non-countable.
(c). Default Judgment: If the defendant fails to respond within the allotted time you WIN. You'll still have to file the proper paperwork (request for default, judgment, application for writ of possession, writ of possession, etc.) before the court will issue you a writ of
possession (court order that you take to the sheriff's department, whereby they assist you in retaking possession of the subject property), but the process as a whole is a lot shorter.
(d). TRIAL. In the event the defendant does file a response with the court within the allotted time, you'll have to go to trial. All-in-all this will add an additionally 4-7 weeks to the entire process. REMEMBER: A trial is not automatically set. It's up to you to file the requisite paperwork requesting a trial date. Hence more time, labor, and expense.
WRIT OF POSSESSION AND THE SHERIFF'S DEPARTMENT
Whether you prevail by default or after a bench or jury trial, you'll need to obtain a writ of possession (Form EJ-130) from the court before you can schedule a SHERIFF-LOCKOUT. Also, the sheriff's civil code enforcement division, the agency that receives the writ and handles eviction cases has their own paperwork that they require you submit at the same time you drop off the writ and request a lock-out. For most counties this is form SER-001 and SER-001A.
Oh, and they want their money too, so you'll have to pay them between $150-$200 before they ever step foot on your property and help you with executing your writ of possession.
TENANT VACATES, NOW WHAT
To mitigate further agony schedule a "walk-through" with the tenant before they move out. Sometimes and like in cases where you and the tenant enter into a stipulated judgement you know exactly when the tenant plans to move out. In other cases, you can gauge it.
In either case, you want to make sure the property is not damaged and the tenant is not the source of that damage; ordinary "wear and tear" does not count. What you're looking for and more importantly documenting, are areas of significant concern that you might need to take the tenant to small claims court for, in order to compensate for the damages. At a minimum, the walk-through keeps both landlord/tenant honest and provides an accurate account of what the subject property looked like at the time of the tenant's departure.
CONCLUSION: SO WHY DO EVICTION CASES SUCK?
I started this blog by saying that evictions suck! Allow me to elaborate. I've been handling eviction cases for the last five years, representing both landlords and tenants. Some cases get settled early on in the eviction process, some go the distance and our decided by a judge or jury. However, in my experience 95% of them are settled by the parties themselves, in one way or another. Why is this important? Think about it!
If only 5% of cases actually go before a judge or jury and 95% are settled then that's compelling evidence that either eviction cases don't have to be filed in the first place or that they can be settled early on in the eviction process, and therefore save you and everyone else involved a ton of stress, not to mention money, not to mention more stress.
What makes eviction cases miserable and ultimately suck is that both sides know (to a sizable degree) that they are going to settle the case at some point but because of their ego and lets be frank here, tunnel vision, they allow their attorneys to string the case along.
So, if you are reading this and you find yourself or friend or family member or maybe even a neighbor, contemplating an unlawful detainer action or happens to be the subject of an unlawful detainer action, enlighten them about the percentage of cases that settle, the fact that nothing is a sure thing even when they are convinced that it is, and that ultimately its just a house and life, and that it's best to move onto more positive and enriching things, and this bump in the road like so many other bumps in the road, will in time, PASS.
Okay, enough of the baptist sermon, you get the point! I hope you enjoyed this blog. Remember, I will be diving deeper into the different facets of landlord/tenant law and unlawful detainer actions specifically in the coming months.
STAY TUNED AND AS ALWAYS, STAY INFORMED.
Till next time,
RJM LAWYER
[DISCLAIMER]: in no way should this article be construed as legal advice. You should always consult a licensed professional before making substantive legal decisions. This articles aim is at providing general information, legal and otherwise, on variety of matters. By sharing this information in no way do I become your attorney or is a client-attorney relationship formed.
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