To most people, evictions appear to be confusing.....
This is a basic reference guideline of what to expect in the standard course of events when you pursue an eviction.
Of course, there can never be a guarantee this guide will mirror actual time and events. As such, this is just offered as a basic educational road-map to familiarize you with the process.
Official Warning in Legalese: The use of any of the information contained in this website does not constitute, nor form, the basis of a professional relationship between Elen Pass Brandt and the party viewing, or using, the information. All professional/legal relationships must be established in writing signed by both parties. The information is provided for educational and reference purposes only, and should not be viewed, nor intended, as an attempt to give legal advice.
EVICTION TIMELINE - BASIC GUIDE
A Rudimentary Roadmap To The Eviction Process
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BASIC TIME LINE FOR
UNLAWFUL DETAINER ACTION (Eviction):
DUE TO COVID-19 MORATORIUM THIS INFORMATION SHOULD NOT BE RELIED UPON AT THIS TIME.
Copyright 2017-2021 Elen Pass Brandt, Esq.
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NOTICE:
Either a 3-Day Notice (For non-payment of rent or performance of covenant) or 30-Day, 60 Day, or 90 Day Notice of Termination of Tenancy (90 Day Notice if Section 8 Tenant).
These must be signed by the owner of the property and served either personally, substitute service, or by posting on property (the last 2 also require a mailed copy). California Civil Code Sections 1161 et seq., and 1162, et seq.
END OF NOTICE PERIOD:
3-8 days (depending on how/when served).
3-Day - If tenant has not paid or moved at the end of the 3 day period.
(Timing - Notice period is calculated by starting counting the next day after service. If personally served, notice period expires at the end of the third day, if substitute or posted and mailed, on the tenth day after
service. Note: Landlord does not have to accept rent after this period
expires and may continue with a suit for eviction. Up to the end of that
period, the landlord must accept full rent if it is timely tendered.
NOTE: If the Landlord accepts ANY rent after the end of the Notice period, he may not file suit on that Notice. He or she must then re-serve a new Notice for any shortages or delinquencies.
FILING SUIT:
You may file suit on the next court day after the Notice Period expires.
SERVICE OF SUMMONS/COMPLAINT:
The tenants must then be served by anyone over the age of 18 who is not a party to the action. A professional process server is preferable.
Again, service can be: (1) personal, (2) substitute (on someone over the age of 18 at the premises only after at least 3 attempts are made to personally serve), or (3) posting (which requires a Court order showing that tenant was evading service of process.)
The service process can take anywhere from 1-30 days.
If the tenant is served by posting (after obtaining a Court order), then the tenant is deemed served after the 10th day. Remember: You then have to allow them an additional 5 days to answer the complaint after that 10th day.
Caveat: If there is the possibility that someone else may be living at the premises that is not on the lease or named in the complaint, have the process server also serve a “Prejudgment Claim of Right to Possession.” This judicial council form requires that anyone else who feels that have a legal right to possession must exercise that right within 10 days or be foreclosed from doing so. The only problem with this is that if you want to move for a default judgment, you will have to wait until the statutory period for this notice to run to do so (15 days from service.)
END OF LEGAL PERIOD:
At the end of the Service period, the tenant has 5 calendar days to answer the complaint.
If the tenant does not answer within 5 calendar days (if the 5th day falls on a week-end or holiday, tenant will have until close of court on the following court day to file answer), then the landlord may file for a default judgment.
If the tenant answers the complaint, then the landlord must file a Memorandum To Set Case For Trial asking for trial date. (CCP Section 1179(a) permits unlawful Detainer matters to be heard within 20 days of filing of Memo to Set). Tenant will have 5 days to file a Counter-Memo.
Note: There are tenant maneuvers which can delay going to trial or even setting for trial - but I do not discuss them here because tenants also read this website.
TRIAL:
By law, landlords are permitted trial preference. Unlawful detainer matters are permitted a trial within 20 days of filing a Memo to Set. (CCP Section 1179(a).) The Tenant has to show affirmative defenses that counter the complaint.
JUDGMENT/POST JUDGMENT
If the Landlord is successful at trial, He/she will then have a judgment for possession and money damages. We will consider them separately. A judgment is only a hunting license -- it only entitles the Landlord to proceed for possession (and money)-- the Landlord may not just go and "throw the tenant out" himself or change the locks.
Warning: Sometimes the Judge will grant a stay of execution on the judgment which can prevent the Landlord from actually moving on the judgment for a period of time determined by the Court This is done in jurisdictions where housing is scarce and/or small children are involved. The judge may order a stay of one week to several months, depending on the situation . But, the Landlord may ask, and is usually granted, that the tenant will have to pay/post the daily rent value for that time period.
In any unlawful detainer the real "prize" is possession of the property -- that is always the first thing to go for.
To regain possession of the property the Landlord must:
(1) File the Judgment (if not already done so by the Court clerk), (2) get a Writ of Possession issued, and (3) Prepare Sheriff's orders. It should only take one trip to the clerk's office to file the judgment and get the writ of possession issued by the Court. You then have to take the writ(s) and instructions to the Sheriff of the County, pay a fee, and have them post the property (usually within several days to a week of you paying them to do so.) After the 5 day posting period, the Sheriff will then come and physically remove the tenants and permit the Landlord to change the locks and take legal possession.
To collect the money judgment, the Landlord must:
(1) Dream, (2) file the judgment, (3) have a Writ of Execution issued by Court, and (4) find some source of money to collect.
More often than not, if someone is evicted for non-payment of rent, the only way you will get that money is if they willingly pay you to clear their credit. As the old saying goes, "you can't get water out of a stone." Filing an Abstract of Judgment puts the Landlord in the position of being a creditor of record if the tenant ever comes into money and also affects the credit record of the tenant.
IF A DEFAULT JUDGMENT:
A default judgment (where the tenant never bothers to answer the complaint) is divided into two phases: possession and money damages, and are obtained as follows:
Possession:
(1) Filing the Proofs of Service (of the Summons/Complaint) with the Court, (2) Filing a Request for Entry of Default and Clerk's Judgment (for Possession only), a (3) Judgment (for possession only), (4) Writ of Possession, and (5) Sheriff's instructions (as discussed above)
Money Damages:
Once the Sheriff has evicted the tenant and you have received the return on that Sheriff's eviction, then you may:
(1)Dream, (2) file Amended Request for Entry of Default, (3) file Judgment, (4) File Declaration in Support of Plaintiff's Application for Entry of Money Judgment. When judgment granted by the Court then: (5) have a Writ of Execution issued by Court, and (6) find some source of money to collect.
SOME PITFALLS:
Statutes:
Remember that evictions are completely statute driven – read the codes carefully. Non-compliance with even a minor aspect of a code can be sudden death in a courtroom. Forcing you back to square one.
Other Unknown Tenants:
If you even suspect that there may be other people living on the premises, make sure you serve the Prejudgment Claim of Right to Possession, to flush them out and/or foreclose their rights to possession.
Rent Control Cities:
When attempting an eviction in any area that has a rent control ordinance, make sure you have a copy of the most recent code of that city and follow it to the letter. Mistakes can be very costly, and there is an eager defense bar out there waiting to scoop up large fees for your errors.
For a list of Northern California Rent Control Areas, go to this site
www.ci.berkeley.ca.us/rent/other/other.html
It is the Berkeley Rent Stabilization Board and reference to Other Rent Control Jurisdiction.
Also for San Francisco: www.ci.sf.ca.us/site/rentboard_index.asp
And Oakland: If you have any doubt about there being an active eviction defense bar there, go to: www.justcauseoakland.org
Collections: If you think there may be a possibility of the evicted tenant having money in the future, make sure you file an Abstract of Judgment with the Recorder’s Office. This makes the judgment follow them and it shows up on credit records and other useful things. Surprisingly, at some point in the future these people may want to clean up their credit to buy a house or car and there sits your judgment as a road-block. Sometimes it takes years, but a decent number of these judgments get payment.