When a tenant refuses to leave their residence, the landlord can take certain
actions in order to have them evicted. However, the landlord cannot make
the tenant move out themselves. They must file an unlawful detainer action.
This special court proceeding legalizes motions for eviction. In order
to file the complaint, the property owner must have previously submitted
a notice demanding the tenant either do something (such as make a rent
payment) or cease doing something (disruptive behavior). If the notice
goes unheeded, the landlord may begin the unlawful detainer action process.
When and Where Can I File an Unlawful Detainer Suit?
To start an unlawful detainer action, one of the following must occur:
The landlord-tenant relationship ends – This factor can take shape in many forms. The relationship can end when
the tenant refuses to leave after the lease ends. Or the tenant fails
to pay rent and adhere to the 3-day notice to pay or quit.
Another form of relationship ends – Other form of relationships that can end include that of an employer, licensor,
or principal evicting a subordinate.
Property is sold – If the property owner sells the land, the contract between the landlord
and tenant will end.
To initiate an unlawful detainer, the landlord will need to fill out and submit
specific forms the California Courts supply. These forms include:
Civil Cover Sheet – This form establishes what suit is being brought forth and is
used solely for statistical purposes.
Unlawful Detainer Summons – The summons notifies the tenant of their transgression and names
the defendants in an unlawful detainer action.
Unlawful Detainer Complaint – Only the plaintiff and their lawyers decide what information is
included in the complaint. This form should detail exactly what happened,
including any incompliance of notification or refusal to pay rent. The
landlord should also list any damages they will seek.
The plaintiff will need to file in the appropriate court under which their
jurisdiction falls. The Superior Court of California handles these cases
and that is where the trial will take place. The County of San Bernardino’s
Superior Court has multiple
locations you can file.
The Unlawful Detainer Process
Answer / Default
To set the unlawful detainer action in motion, the landlord will need
to serve the tenant with the complaint and summons. The tenant has five
days, beginning the day after the summons was received, to file an answer.
For them to file a response, they must submit formal papers in response
to the summons. At that point, the case will go to trial.
If the tenant does not respond during their prescribed time, the landlord
can ask the court to enter a default against the tenant. Once the default
has been submitted, the defendant can no longer respond to the summons.
The default allows the property owner to ask the judge to rule in their
favor, thus barring the tenant’s participation.
Trial / Declaration
For the landlord to obtain a judgement, they will need to present their
case to the Court, regardless of whether the tenant responded. The plaintiff
must prove that there was a written or oral landlord-tenant agreement,
that the tenant failed to uphold their side of the contract, and that
the relationship has ended with a properly served notice.
If the matter is uncontested, the matter can be resolved with a short court
appearance or a written declaration of a default judgement.
If the tenant contests the summons, both parties must go to trial. The
process can be complicated, which is why having an experienced attorney
present can help the case.
Once both parties present their case in court, the judge will have time
to deliberate and present their judgement. The court clerk issues a “Writ
of Execution” establishing the judge’s ruling. If in favor
of the landlord, the Marshal can execute the steps listed.
If the court rules in the landlord’s favor, the plaintiff can begin
the reclamation of their property. The Marshal will receive the “Writ
of Execution” and can begin the process of evicting the tenant.
The Marshal will first post a five-day notice informing the tenant to
move. They will return in five days’ time, and if the tenant is
not gone, will forcibly remove them. The property owner then has the right
to change their locks and reclaim their property.
Unruly tenants who refuse to follow directions can be highly frustrating.
If you are a landlord looking to evict their residents, contact our Rancho
Cucamonga civil litigation attorneys. We have experience handling the
most volatile of situations. Allow us to use our skill for your case!
Call today for a free consultation!