Unlawful Detainer California

What is an Unlawful Detainer Lawsuit?

If the tenant doesn't voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in the California Superior Court.

In a Californa Unlawful Detainer lawsuit, the landlord is called the "plaintiff" and the tenant is called the "defendant."

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Unlawful Detainer Lawsuit is a "Summary" Court Procedure

This means that the court action moves forward very quickly, and that the time given the tenant to respond during the lawsuit is very short. For example, in most cases, the tenant has only five days to file a written response to the lawsuit after being served with a copy of the landlord's complaint. Normally, a judge will hear and decide the unlawful detainer case within 20 days after the tenant files an answer.

The court-administered eviction process assures the tenant of the right to a court hearing if the tenant believes that the landlord has no right to evict the tenant. The landlord must use this court process to evict the tenant; the landlord cannot use self-help measures to force the tenant to move. For example, the landlord cannot physically remove or lock out the tenant, cut off utilities such as water or electricity, remove outside windows or doors, or seize (take) the tenant's belongings in order to carry out the eviction. The landlord must use the court procedures.

If a Landlord uses Unlawful Methods

The court-administered eviction process assures the tenant of the right to a court hearing if the tenant believes that the landlord has no right to evict the tenant. The landlord must use this court process to evict the tenant; the landlord cannot use self-help measures to force the tenant to move. For example, the landlord cannot physically remove or lock out the tenant, cut off utilities such as water or electricity, remove outside windows or doors, or seize (take) the tenant's belongings in order to carry out the eviction. The landlord must use the court procedures.

If a landlord uses unlawful methods to evict a tenant, the landlord may be subject to liability for the tenant's damages, as well as penalties of up to $100 per day for the time that the landlord used the unlawful methods.

The court holds a hearing for the Unlawful Detainer Lawsuit

In an unlawful detainer lawsuit, the court holds a hearing at which the parties can present their evidence and explain their case. If the court finds that the tenant has a good defense, the court will not evict the tenant. If the court decides in favor of the tenant, the tenant will not have to move, and the landlord may be ordered to pay court costs (for example, the tenant's filing fees). The landlord also may have to pay the tenant's attorney's fees, if the rental agreement contains an attorney's fee clause and if an attorney represented the tenant.

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California Unlawful Detainer Judgement in Favor of Landlord

If the court decides in favor of the landlord, the court will issue a writ of possession. The writ of possession orders the sheriff to remove the tenant from the rental unit, but gives the tenant five days from the date that the writ is served to leave voluntarily. If the tenant does not leave by the end of the fifth day, the writ of possession authorizes the sheriff to physically remove and lock the tenant out, and seize (take) the tenant's belongings that have been left in the rental unit. The landlord is not entitled to possession of the rental unit until after the sheriff has removed the tenant.

As part of the judgement for Unlawful Detainer in California, the court also may award the landlord any unpaid rent if the eviction is based on the tenant's failure to pay rent. The court also may award the landlord damages, court costs, and attorney's fees (if the rental agreement or lease contains an attorney's fee clause and if the landlord was represented by an attorney). If the court finds that the tenant acted maliciously in not giving up the rental unit, the court also may award the landlord up to $600 as a penalty. An unlawful detainer lawsuit judgment against the tenant will be reported on the tenant's credit report for seven years.

California Unlawful Detainer Judgement in Favor of Tenant

Relief from Forfeiture of the Tenancy

It is possible, but rare, for the tenant(s) to convince the court to allow them to remain in the rental unit. This is called relief from forfeiture of the tenancy. The tenant(s) must convince the court of two things in order to obtain relief from forfeiture: that the eviction would cause the tenant severe hardship, and that the tenant is able to pay all of the rent that is due or that the tenant will fully comply with the lease or rental agreement.

Appealing the Judgement for Unlawful Detainer in California

As a Landlord, California Eviction Laws state that if you lose your California unlawful detainer lawsuit, you may appeal the judgment if you believe that the judge mistakenly decided a legal issue in the case. Keep in mind, however, that your tenant(s) can appeal a judgment if they lose the case. Even if your tenant(s) appeal the judgment, most likely they will have to move before the appeal is heard, unless they obtain a stay of enforcement of the judgment or relief from forfeiture. This is very rare because the court will not grant a request for a stay of enforcement unless it finds that the tenant and their family will suffer extreme hardship, and that you (the landlord) will not suffer irreparable harm. If the court grants the request for a stay of enforcement, it will order the tenant(s) to make rent payments to the court in the amount ordered by the court.

 


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