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.




​NORCAL EVICTION LAWYER



EVICTION TIMELINE - BASIC GUIDE


A Rudimentary Roadmap To The Eviction Process






.

BASIC TIME LINE FOR

UNLAWFUL DETAINER ACTION (Eviction):

Copyright 2017    Elen Pass Brandt, Esq.
__________________________________

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 eighth 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 1-20 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 court days to answer the complaint. 

If the tenant does not answer within 5 court 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. 

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).)


If the tenant vacates the premises before the trial date (i.e. possession is no longer at issue) -- the Landlord then loses trial preference and it converts to a breach of contract action.  BUT if the tenant has not given up the keys (the symbol of possession), then possession is still at issue and the Landlord may proceed on the preferential date.


TENANT  MANEUVERS:
If a tenant wishes to stretch the period or fight the eviction -- he may do any of the following:  

Motion to Quash Service of Summons and Complaint:     Must be filed within 5 days of service of summons/complaint. This is a legal Motion that attempts to dispose of the complaint by virtue of illegal service or defect in the complaint/summons.  If granted, Landlord will have to re-serve the complaint (go back to the same time as filing of the complaint) or serve an amended complaint.
        - Hearing is from 3-7 days after Motion/Notice filed.
        - If tenant loses -- will have to file/serve and answer within 5 days.

Motion to Strike:             Must be filed within 5 days of service of summons/complaint. This is a legal Motion that attempts to strike one or all of the allegations in the Complaint (as irrelevant, false or improper).  If all the allegations are stricken, the complaint is dead in the water and the Landlord starts over (with Notices.)

         - Hearing is 15-20 days after service of motion (depending on whether served personally or my mail.) 
         - If Tenant loses -- will have 5-10 days to file answer (depending on whether notice of ruling is served personally or by mail.)

Demurrer:      Must be filed within 5 days of service. This is a legal Motion that attempts to dispose of the suit by stating that the Complaint is defective on its face.  If granted by the Court, and cannot be amended, this Motion is fatal and the Landlord will have to start over (go back to Notices).
               - Hearing is 15-20 days after service of motion (depending on whether served personally or my mail.) 
               -  Even if Tenant's Motion is Successful, sometimes the court will permit the Landlord to amend the complaint to correct the defect and then re-serve the amended summons/complaint, Tenant will then have 5 days to file and answer.
               - If Tenant loses -- will have 5-10 days to file answer (depending on whether notice of ruling is served personally or by mail.)

 Jury Trial Demand:                A Tenant may demand a jury trial to make the case more expensive to prosecute for Landlord, or because they believe a jury will find in their favor.  It may stretch out the proceedings a day or two, but does not change the basic time-line.  NOTE: If there is a demand for a jury trial, the Court will usually order a settlement conference before the date of trial.

If none of the above happen -- both parties appear in Court to plead their argument.  The Landlord has the burden to show the breach and damages.  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 the period of time determined by the judge.  This is often 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.

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.