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Eviction

During the Case

If your landlord has filed an official "Complaint" against you with the court -- and you have been given a copy of this "Complaint" (Complaint - Unlawful Detainer Form UD-100) and the court's "Summons" (Summons-Unlawful Detainer Form SUM-130):

You have only 5 days, including Saturdays and Sundays but excluding all other judicial holidays, to do something. (See California Code of Civil Procedure, Section 1167.3)

NOTE: If you are being evicted, you may want to ask for help.

If you don't file your "Answer" on time, you can;

  • Lose the case,
  • Be evicted, and
  • Have your salary, money, and property taken by the landlord without warning.

You should file an "Answer" even if you leave the property.

NOTE: You may not need all of these forms. Or you may need more forms. If you're not sure which forms to use, talk to a lawyer.

Find low-cost legal aid,

For help finding local court forms you may need, go to your county's court website.

The form you use to "Answer" the "Complaint - Unlawful Detainer" you were given is the Judicial Council form:

This form can also be gotten from the clerk's office at a local court branch, or on the forms page.

Get help in filling out the forms.

For more information on how to "Answer", go to the next topic in this list.

You, the tenant, may feel that you have a legal defense to the landlord's "Complaint." If so, you must state that defense in a written "Answer" and file this with a court clerk by the end of the 5th day after you received the "Complaint" and court "Summons."

You may use the ANSWER-Unlawful Detainer form (Form UD-105)
See the instructions for this form.

  • If the 5th day falls on a weekend or holiday, you can file your written response on the following Monday or non-holiday.
  • If you DO NOT file a written "Answer" by the end of the 5th day, you will lose any defenses that you may have.

Some typical "Answers" that a tenant might have are listed here as examples:

  • The landlord's "3-Day Notice" requested more rent than was actually due.
  • The rental unit violated the implied warranty of habitability.
  • The landlord filed the eviction action in retaliation for the tenant exercising a tenant's right, or because the tenant complained to the building inspector about the condition of the rental unit.
  • For other ways you, the tenant, may "Answer," see the Frequently Asked Questions page.

After you have prepared an "Answer," a copy of it must be given to the landlord, or his or her attorney.

  • This procedure is called "service of process" and is a very important step in the proceeding.

To learn how to do this, click on on the next topic in this list.

REMEMBER: Normally, the tenant has only 5 days to complete this whole process.

The tenant must give copies of the court papers to the landlord.

Once you, the tenant, has prepared an Answer, you must give a full set of copies of these forms to the landlord. This is called "service of process."

NOTE: You cannot serve your court papers yourself.

There are special rules about how these forms must be given to the landlord. The tenant must ask someone who is 18 years old or older and not involved in the case to mail the papers (using first class postage) to the landlord, or may hire a registered process server to do this.

Then the tenant lets the court know that the copies were given.

After the server has mailed the forms, he or she must fill out a:

  • Proof of Service of Summons (Form POS-010)

NOTE: The papers do not have to be received by the landlord before the tenant files them -- they must only be in the mail.

To learn how to do this, go to the next topic in this list.

The completed "Answer" and "Proof of Service" forms must be filed in the court.

After the landlord has been served with the "Answer" and the "Proof of Service" forms have been filled in, the tenant must give the papers to a court clerk. (If you are the tenant, keep a copy for yourself!)

  • The papers do not have to be received by the landlord before the tenant files them - they must only be put in the mail.
Remember: Normally, the tenant has only 5 days to complete this whole process.

Once your "Answer" has been prepared -- and a copy has been given or sent to the landlord -- the original "Answer" and "Proof of Service" forms must be filed with a clerk in the same courthouse that the landlord's "Complaint" was filed.

  • You can see the name and address of the courthouse at the top of the landlord's "Complaint" form. Usually, this is the court nearest to where the rental property is located.
  • Learn where to file in your county.

You will have to pay a filing fee. You can call the clerk's office before you go to find out the fee, and how you can pay.

  • Get information on filing fees in California.
  • If you cannot afford the filing fees, you may file a "Fee Waiver" form to ask if the judge will allow you to pay less or nothing at all.

If a tenant goes to court and files an "Answer" to the landlord's Unlawful Detainer "Complaint," either the tenant or the landlord may ask the court to schedule a trial date. (See California Code of Civil Procedure, Section 594)

To get started, one party must ask for a trial date.

This is done by filing a paper with the court saying that the case is ready for trial. The paper is called a "Memorandum to Set Case for Trial," or an "At-Issue Memorandum." You can get this form at the court where your case is filed.

  • Whoever files this paper will need to "serve" a copy of it on the other party, and file a "Proof of Service" form at the courthouse. (It is usually served by 1st class mail.)
  • The other party has 5 days to serve and file a counter-memorandum if they are not in agreement with the information or estimates given in the original Memorandum to Set Case for Trial.

Once the trial has been scheduled, the court will mail both parties a notice with the trial date. This notice should be received in about one week.

Generally, trials are set within 20 days from the date of the request.

In California, unlawful detainer hearings take place in a courtroom in front of a judge or a commissioner. In the same courtroom there will also be a court clerk and a bailiff, and usually other people in the room. For example, there may be people waiting for their case to be heard. When your Unlawful Detainer case is called, if both the landlord and the tenant are present, they are to both go up to the tables in front of the judge.

Start gathering all of the information about your case.

Remember:

  • The landlord has complained that you are living in his or her rental unit illegally;
  • And you have answered that the landlord is trying to evict you illegally.

It is up to the tenant to prove each point raised in his or her "Answer" to the landlord's "Complaint."

You may want to ask witnesses to come tell the judge or jury what they have seen or heard.

You may want to show the judge or jury documents that help explain your side of the story, like:

  • An original of the lease,
  • Letters you have written or received about the property,
  • Inspection reports from a building inspector or health department,
  • Receipts, or
  • Photographs.

Have at least three copies of all documents: one for the court, one for the other party, and one for yourself.

  • Organize your paperwork before you come to court so you can easily find what you need.
  • Make notes for yourself so you don't forget to tell the court something important.

You may want to practice what you are going to say in front of a friend or family member, so you feel more comfortable talking about this problem.

In California, unlawful detainer hearings take place in a courtroom. These hearings are often very short (sometimes as little as 10 - 15 minutes), so you really need to plan ahead if you want to give the judge (or jury) your information before a decision is made. To get ready for your court hearing:

Know Your Own Case

  • Read the court papers carefully. Understand what you asked for, and what the other party has asked for in their papers.
  • Before your own hearing, summarize, organize and write down the key points you want to tell the judge (or jury). Try to make it as clear and simple as you can. Be ready to explain why the court should approve (or not approve) each request. Practice speaking a few times - if you can, practice in front of friends or family.
  • Make an outline listing your reasons for each request and how the other named party responded. This will help you to speak to the judge or jury if you get nervous in court.
  • Be sure to focus on the issues that are the reason your court date was scheduled. The court cannot address issues that are not identified in the original paperwork filed to request the hearing. If you have other problems to resolve, you can schedule a separate hearing for that purpose.
  • Get ready to bring copies of all of your paperwork with you to court, including:
    • Copies of everything you've filed with the court concerning your case,
    • Copies of everything that has been served on you in this case, and
    • Any other paperwork that is related to your case.
    • Also bring a copy of an documents you have filed recently to show the court - just in case the paperwork did not make it into the file.

Find out Where to go and What These Cases are Like

  • Plan to be on time for all court dates. Look on a map and find out where the courthouse is. Learn the schedules of the buses that will get you to the courthouse, or figure out what roads would be best if driving. Learn where to park.
  • It may be a good idea to go to the courthouse and observe another unlawful detainer (residential eviction) hearing before going to yours so that you can get a better idea of what to expect.

NOTE: If you know ahead of time that you are unable to attend the hearing in person, there may be a possibility for you to arrange to participate by telephone. Call the court clerk in your county for information and to make the necessary arrangements.

  • Dress neatly and respectfully.
  • Take all of the documents that will be needed to show to the judge. Be sure you have copies for the other side.
  • If you intend to call witnesses (other than you and the other side), and have filed and served a witness list, arrange for your witnesses to be present at court. Make sure they know where to go and that they allow plenty of time to find the courtroom. Give your witnesses a copy of this page so that they know what to expect.
  • Be on time. Allow extra time for traffic or other possible delays. (If you are delayed or unable to attend the hearing due to a car breakdown, sudden illness, or other emergency, contact the department clerk on or before your hearing time.)
  • Turn off your cell phone and/or pager when you enter the courtroom.
  • When your case is called, walk to the table or podium in front of the judge and stand facing the judge.
  • Be prepared to state your name and your relationship to the case.
  • Speak clearly and loud enough that the judge can hear you. Speak only when it is your turn.
  • When you speak to the judge, act respectfully and call him or her “your honor.” Be sure never to interrupt the judge.
  • Answer all of the judge’s questions and stop talking immediately if the judge interrupts you.
  • If you don’t understand something, say that you don’t understand. Someone will try to explain it for you.

In California, Unlawful Detainer hearings take place in a courtroom in front of a judge or a commissioner, or in front of a jury if a jury trial was requested.

  • There will be other people in the courtroom - court staff, and other people waiting for their case to be heard.
  • Get a checklist on how to prepare for court on the hearing date.
  • Find your county's court website.

When your Unlawful Detainer case is called, you and the landlord (or the landlord's representative) are both to go up to the tables in front of the judge. Special Note: The following are general guidelines. The actual rules may be different in each court, so learn your county's local rules of court on trial procedures.

Remember:

  • The landlord has officially complained that you, the tenant, are living in his or her rental unit illegally;
  • And you, the tenant, have officially answered that the landlord is trying to evict you illegally.

At the beginning of your hearing, the judge will ask you and the other party to state your names for the court record. The court clerk will swear you in. Then, the judge (and/or jury) will listen to both sides of the story.

  • The judge may ask anyone any questions at anytime. He or she will examine the evidence presented by both parties.

The judge or jury will decide whether or not you, the tenant, have the legal right to remain in the rental unit. This decision will be based upon many considerations, including:

  • If the landlord has fulfilled his or her responsibilities as outlined, for example, in (California Civil Code, Section 1941), and
  • If you, the tenant, have fulfilled your responsibilities as outline, for example, in (California Code of Civil Procedure, Section 1161).

At the hearing when the final decision is made on the unlawful detainer complaint, the judge or jury may:

  • Decide in favor of the tenant.
    In this case the tenant does not have to move. The landlord may be ordered to pay the tenant's court costs (for example, filing fees) and the tenant's attorney's fees. However, the tenant will have to pay any rent that the court orders. OR
  • Decide in favor of the landlord.
    In this case, the tenant will have to move. In addition, the court may order the tenant to pay the landlord's court costs and any attorney's fees, and any proven damages, such as overdue rent or the cost of repairs if the tenant damaged the premises.

NOTE: There may be more than one court hearing before the case is settled.

Once the judge or jury has made a decision, the judge will sign a court order stating what decision was made.

The court will give or mail a copy of this order to you.

For information about what happens after the hearing, see "After the Court Trial".