This article explores the fundamental steps to pursuing any Unlawful Detainer case in California. This is not meant to be a comprehensive guide to prosecuting the case, but merely provides a brief overview of each step in the process.
Prepare the Tenant’s File
The first step in the process is to prepare the tenant’s file and review it to ensure it is complete. The importance of having a thorough and complete file cannot be overstated, since the file will be utilized during every step of the process.
At a minimum, the tenant’s file should have: (1) a fully completed rental application;(2) the written rental agreement; (3) move-in inspection report; (4) copies of all correspondence with the tenant; (5) rent receipts and payment ledgers; (6) records of unit inspection reports; (7) notices of change in terms of the tenancy (8) any and all Notices to Vacate; and (9) pictures of the rental property. Make sure to review the file thoroughly to become familiar with its contents.
Prepare and Serve the Notice to Quit
Once the tenant’s file is in order, the next step in the process is to prepare the Notice to Quit. The content of the notice will depend on the reason you are evicting the tenant. Lynx recommends having the Notice prepared by an individual or company with experience handling unlawful detainer actions. If the case proceeds to a hearing, one of the first steps for the judge is to review the Notice to Quit to ensure it complies with California law. If there is any defect in the notice, the case will typically be thrown out of court, requiring the landlord to start all over. Over 75 percent of landlord-prepared notices we have reviewed are defective in some respect.
Service of the Notice to Quit
The next step would be to serve the Notice to Quit on the tenant. The manner of service (i.e. personally, by substitute service, by posting and mailing, or, in some instances, by certified mail) depends on the type of notice you are serving. It’s a good idea to hire a professional process server like Lynx for this task. Service by a registered process server creates a rebuttable presumption in court that service was properly effectuated.
Preparation of Eviction Complaint
After the Notice expires, the landlord’s next step would be to prepare and file an unlawful detainer case against the tenant. Preparation of the Unlawful Detainer complaint should not be left to an amateur, since a properly prepared complaint is essential to winning the case. The complaint must state the proper cause of action, must state the facts accurately, and must be verified under the penalty of perjury. In addition, there are several forms that need to be completed as part of the initial filing. Any defect in the Complaint could result in dismissal of the case at the pleading stage, requiring the landlord to start again.
Filing and Service of the Eviction Complaint
The next step is making sure the Summons and Complaint are filed with the court and served properly on the tenant. The filing entails a trip to the courthouse clerk’s department designated for unlawful detainer filings. Once filed, the complaint must be served personally, by substituted service, or by “posting and mailing”. This latter form of service requires a showing of reasonable diligence in attempting to first serve the defendant personally or by substituted service. Three tries is the threshold. We recommend using a professional process server to serve the eviction lawsuit on the tenant.
Default Proceedings if Defendant Fails to Respond to the Complaint
The tenant has five court days after service to respond to the Complaint. If the tenant fails to do so, the landlord can request that the court enter a default and default judgment against the tenant. This is another step where “i’s”: must be dotted and “t’s” must be crossed, or the paperwork will be rejected by the court.
Setting the Matter for Hearing/Trial if the Defendant Responds
If the Defendant files an Answer to the Complaint, the Answer must be reviewed to determine what affirmative defenses have been asserted. If the Defendant has raised defenses concerning habitability or any defective conditions of the rental property, make sure you immediately serve a 24 hour notice of right to enter and inspect. Take your cell phone and make sure you take photographs and/or a video from the moment you get to the front door at the appointed time to the time you leave.
It may be prudent to conduct discovery on any issues such as the breach of the warranty of habitability, retaliation, discrimination, and any other affirmative defenses set forth in the Answer to the Complaint that might have factual support. Discovery can be in the form of questions (interrogatories), Request for Admissions, Request to Produce Documents and Depositions.
To obtain resolution of a contested case the landlord needs to prepare, file and serve a Request to Set the Case for Trial. Upon receipt, the Court will schedule the hearing/trial date approximately 15-20 days after the request was filed.
Document Review
Prior to the trial date make sure your tenant file has all the evidence you need to win the case. Correspondence to and from the tenant, citations from any governmental agency and disposition of those citations, rent ledger, photographs of the rental property and any other documents you need to prove the Unlawful Detainer case are essential to win the case.
Lynx Legal has substantial experience handling evictions throughout California, Arizona and Nevada, having handled such evictions over the past 12 years. We will ensure all your documentation is in order and complete so that the eviction proceeds smoothly and efficiently. Please contact us at 888-441-2355 or info@lynxlegal.com to discuss any issues raised by your landlord-tenant relationship. You may also schedule a free telephonic consultation on our website to discuss your issues, and whether an eviction is supported by your particular situation.