Eviction Process

By Jesse Wagner
Sr. Litigation Coordinator
Southland Court Services
www.samedayevictions.com
JW@SouthlandLaw.us
858.227.9229

Now in Vista, Ca.

Overview of the eviction process

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 superior court.

In an eviction lawsuit, the landlord is called the "plaintiff" and the tenant is called the "defendant."

Recent laws designed to abate drug dealing and unlawful use, manufacture, or possession of weapons and ammunition, permit a city attorney or prosecutor in selected jurisdictions  to file an unlawful detainer action against a tenant based on an arrest report (or other action or report by law enforcement or regulatory agencies) if the landlord fails to evict the tenant after 30 days notice from the city. The tenant must be notified of the nature of the action and possible defenses.

An 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 summons and complaint. Normally, a judge will hear and decide the case within 20 days after the tenant or the landlord files a request to set the case for trial.

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 the 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

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 the tenant was represented by an attorney.

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.

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. The judgment against the tenant will be reported on the tenant's credit report for seven years.304