In order to start the eviction process, you, as the landlord, must first give the tenant written notice. If the tenant does not do what the notice asks, you can file an unlawful detainer case in court when the notice period ends.
Sometimes figuring out what type of notice is needed can be difficult. Talk to an eviction lawyer to make sure you are using the right notice and that you are filling it out correctly. Eviction notices are not court forms, but many of the notice forms can be purchased in stores that sell legal forms. Make sure the form you use meets the requirements of current California law, because if there are mistakes in the notice, you might lose the case automatically.
There are different types of notices, as expalined in the following table.
|3-Day Notice to Pay Rent or Quit||
Landlords can use this notice when the tenant is behind on the rent.
The notice must:
|3-Day Notice to Perform Covenants or Quit||
Landlords can use this kind of notice if the tenant is violating terms in the lease or rental agreement and the problem can be fixed. For example, if the tenant has moved in a pet without permssion, or is not keeping the unit clean, or is violating some other term of the agreement, the notice must ask the tenant to correct the violation within 3 days or move out.
The notice must:
|3-Day Notice to Quit|| This kind of notice is used if there have been ongoing problems with a tenant who:|
|30-Day or 60-Day Notice to Quit||
A landlord can use a 30-day notice to end a month-to-month tenancy if the tenant has been renting for less than a year. A landlord should use a 60-day notice if the tenant has been renting for a year or more and the landlord wants the tenant to move out.
The notice must:
In rent-controlled cities, a landlord cannot cancel a month-to-month tenancy for just any reason. The landlord must find out if the unit is in a rent-controlled city, and if so, whether he or she has the right to evict the tenant.
|90-Day Notice to Quit||A landlord must use this kind of notice if the tenant is in subsidized housing (Section 8). The landlord must explain why he or she is asking the tenant to move out, and the landlord must have good reasons ("just cause") to ask the tenant to leave.|
IMPORTANT: Check to see if the property is under rent control. If it is, you may not be able to evict the tenant, even with notice, for just any reason. Click to find out if your city has rent control laws. And, if the property is under foreclosure, different rules and notice requirements may apply. Read about the rights of tenants in a foreclosure.
Also, you cannot evict a tenant for an illegal reason, like discrimination against the tenant because of the tenant’s race, ethnicity, national origin, gender, age, sexual orientation, religion, or disability. A landlord cannot evict a tenant to retaliate or get even for the tenant making a complaint about the condition of the property.
Note: In some cases, a landlord can give a tenant more than 1 notice at the same time. For example, if the tenant is always late with the rent, a landlord can serve a "3-Day Notice to Pay Rent or Quit" and a "30-Day Notice to Quit" at the same time. If the tenant does not pay the rent within 3 days of receiving the 3-day notice, the landlord can file an unlawful detainer case after the 3-day period ends. Even if the tenant pays the rent within the 3-day period, he or she must still move out in 30 days. If the tenant does not move out after the 30 days, then the landlord has to file an unlawful detainer case.
When notice is NOT required
A notice is almost always needed before filing an unlawful detainer case. But there are a few exceptions:
* In a rent controlled city, the landlord may not be able to evict a tenant when the lease is up unless the landlord has a good reason ("just cause"), to file an eviction case. The landlord will probably need a notice in that case.
How to give notice
You have to serve the notice on the tenant properly. You can do it yourself, or you can ask a friend to do it. You can also hire a process server. The person who serves the notice must be at least 18 years old.
There are 3 ways to serve the notice:
After giving notice
Once you give the tenant notice, you must wait until the notice period is up to see if the tenant does what the notice asks within the time allowed. If the tenant does not comply, you can file an unlawful detainer case in court to evict the tenant and request back rent. If the tenant does what the notice requires (like pay the back rent in full), then you cannot file an unlawful detainer case.
If the notice is not correctable, such as a 3-day notice to quit or a 30- or 60-day notice to quit (move out) in a month-to-month tenancy, you can file an unlawful detainer case in court when the notice period ends.
If you file the eviction case in court before the notice runs out, the court will dismiss the case.
To count the days in the notice period:
If you do not serve the notice in person and have to mail a second copy, you have to make sure that you do not start counting until the day after you mail the notice.
There are a number of steps you have to follow in an unlawful detainer case. If you and the tenant reach an agreement at any point during this process, the agreement can be written up and the case dismissed. Read for more information about resolving the case out of court by agreement.
Also, remember that evictions can be complicated. The landlord and tenant do not have to get a lawyer. But, there are strict court rules and court forms you have to fill out, file, and serve. The rules and forms are complicated. And if you do not do things correctly, you may lose your case. There may be legal help in your county for landlords trying to evict a tenant. You can also check with your court’s self-help center to see if they help people with unlawful detainer cases.
1. Fill out the forms
To start the unlawful detainer case, you have to fill out 3 court forms:
Your local court also may require you to fill out other local forms, so make sure you check with the court clerk to make sure you have filled out all the necessary papers.
In completing the complaint, keep in mind:
When completing the complaint, only you or your lawyer can decide what to say in the complaint. It is illegal for a nonlawyer, including a paralegal or legal assistant, to tell you what to say. Go through the form carefully and make sure you check all the boxes that apply to your case.
If your court’s self-help center helps with unlawful detainer cases, take your paperwork to them to review. They cannot give you legal advice, but they can make sure you completed the forms so they can be filed. You can also hire your own lawyer to review your papers or to get legal advice, either with your entire case, or just the parts of it that you may need more help with (called “limited scope representation” or “unbundling”). Click for help finding a lawyer. Click to learn more about “limited scope representation.”
2. File the Complaint
3. Serve the unlawful detainer papers
You have to serve the tenant with the unlawful detainer papers. The tenant can be served in 1 of these 3 ways:
|Personal Service||The server gives the tenant the papers in person. If the tenant will not take the papers, the server can tell the tenant that he or she is being served and leave the papers as close to the tenant as possible.|
|Substituted Service||If the tenant is not at home or work when the server comes, the server can give the court papers to a competent member of the household where the tenant lives or to someone works. The server must also mail a copy of the Summons and Complaint to the tenant at the address where the papers were left. Service is considered complete on the 10th day after mailing of the papers to the tenant.
The landlord cannot use this type of service until the server tries at least 2 or 3 times, on different days and at different times of the day, to serve the tenant in person. This is called "due diligence." The server will have to fill out a form that says what days and times he or she tried to serve the tenant in person and that he or she exercised "due diligence."|
|Posting and mailing||The landlord can only use this type of service if the court gives him or her permission. To ask the court, the server must first try to serve the tenant in person and by substituted service, and write a declaration for the court explaining that he or she was not successful. If the judge lets the landlord serve by posting and mailing, the server has to post a copy of the Summons and Complaint on the property where the tenant will see it and send another copy by certified mail to the tenant at the tenant's last known address. Service is considered complete on the 10th day after the certified mailing of the papers to the tenant.|
Click to find about more information about “service of process."
Every defendant named in the lawsuit must be served with the Summons and Complaint. Make sure a third person NOT involved in the case serves the Summons and Complaint on the defendant. You cannot serve the Summons and Complaint yourself, even if you served the notice.
If there are other people living in the property that you did not include in the Complaint, you have 2 choices. Ask a lawyer what choice is best.
The choices are:
As you can see, if there are occupants in the property that you did not name in your eviction complaint, they may be able to fight the eviction successfully, even if you initially get your eviction judgment. This is especially true in foreclosed properties. So, talk to a lawyer if you think this may apply to your case!
Alert! If there are other people living in the property that are not included in the Complaint, and you decide to serve them with a Prejudgment Claim of Right of Possession, you MUST have a registered process server or sheriff serve them. You cannot use a friend in this case.
4. Fill out and file the proof of service
The server must first complete and sign a Proof of Service of Summons (Form POS-010) and give it to you (the landlord).
You must then take the completed, signed Proof of Service to the court clerk for filing with a copy for yourself. You must make sure the Proof of Service is filled out correctly. A mistake on this form can delay the case.
5. Wait the required time for the tenant to respond
Note: If there is more than 1 defendant (tenant), there could be different deadlines if they were served in different ways or on different days. You have to keep track of the deadline for each defendant.
6. The tenant's response
The tenant may or may not file a response, which will then determine what your next step is.
If the tenant does NOT respond
If the tenant does not file a response within 5 days, you may be able to evict him or her without the tenant having a say in the case. This can affect the tenant’s ability to rent in the future because he or she will have an eviction on his or her record. And if you say the tenant owes money for back rent and the tenant does not answer, you may be able to take that money from the tenant’s paycheck or bank account. An eviction can also affect the tenant’s credit record.
First, you must make sure that the tenant's time to respond is over.
Then, you must ask the court to make an order in your favor. This is called a "default judgment," and it means the tenant will not be able to fight the case in court.
To do this, you must fill out and file these forms:
If there is more than 1 defendant in the case, you can ask for a default judgment against the ones that have not responded.
If you want to get an order giving you possession of the property right away, you can first just ask for a Clerk's Judgment for Possession. You can do that on Form UD-110 or ask the court if they have a simpler form for this.
You will not be able to include back rent in this Clerk's Judgment, but if the clerk confirms that you have done everything correctly, he or she can process it and give it to you very quickly. With the Judgment for Possession, you can get the Writ of Execution, which is the document that you give to the sheriff to evict the tenant.
You can later ask for a Judgment that includes back rent and court costs.
Alert! If you do not ask for a "default judgment" as soon as the tenant's time to answer is up, the tenant will have more time to answer. The tenant will be able to file a response as long as you do not file the Request for Entry of Default.
If the tenant DOES respond
If the tenant files a response, he or she needs to send you a copy of the response. The tenant will send it to the address you put on the Complaint. You can also go to the courthouse and look up the case if you have not received anything from the tenant and want to make sure he or she did not respond.
There are different ways a tenant may respond. Most tenants respond by filing an Answer - Unlawful Detainer (Form UD-105 | video instructions ). But if the tenant believes your Complaint or service of your Complaint is defective, he or she may file a motion such as a motion to quash (void) service or a demurrer challenging the service or the Complaint.
If the tenant files and serves the landlord with an answer, you must file a Request to Set Case for Trial-Unlawful Detainer (Form UD-150), at the clerk's office if you want the case to move forward.
You also have to serve the tenant by mail with a copy of the Request and have the server fill out the Proof of Service on the back of the Request.
Click if the tenant has already moved out before the case is over.
7. Before the trial
About a week after you file the Request to Set Case for Trial, the court clerk will mail you and the tenant information with the exact date, time and location of the trial. The trial will take place within 20 days.
If the tenant does not agree with the information in your Request to Set Case for Trial, he or she may also file and serve you with a Counter-Request (Form UD-150).
Deciding on a jury trial:
Both you and the tenant have a right to a jury trial. Talk to a lawyer about whether you should ask for a jury trial.
The side that wants the jury trial will have to give the court $150 for jury fees. If you do not have enough money, ask the clerk about a fee waiver.
If you want a jury trial, you must check the box (at item 3) on the Request to Set Case for Trial. If the tenant wants to have a jury trial and you did not ask for one, the tenant has to file and serve you with a Counter-Request (Form UD-150) or file a Demand for a Jury Trial.
The procedures in your local courthouse may be different when there is a jury trial, so make sure you know what the next step is. In some counties, there is a mandatory settlement meeting before a jury trial. Also, with a jury trial, you may need other forms like jury instructions and jury questions. Ask legal aid, self-help center, or your local law library for samples of these documents. Click for help finding a lawyer.
8. Prepare for trial
Get all the information related to your case. If possible take your original documents, plus 3 copies of everything you take to court. This may include papers like:
You may also bring witnesses who have personal knowledge of the facts. If a witness is important for you to prove your case, it is best to get a subpoena issued and served on the witness to make sure he or she comes to court. Even if the witness is willing to come to court, sometimes his or her work requires that a subpoena be served on the employee to allow time off to come to court. Also, if some emergency prevents the witness from showing up in court, you may be able to get the trial continued if the witness was subpoenaed, but a continuance will generally not be granted if the witness was not. Only a lawyer or the court clerk can issue subpoenas, so get a pre-issued subpoena from the court if you do not have a lawyer.
Remember that if you do not speak English well, you need to bring an adult who can interpret for you. Or hire your own interpreter. Most courts do not provide interpreters for unlawful detainer cases.
If you are deaf or hard of hearing, ask the court for a sign language interpreter. Courts must provide sign language interpreters, but it is important to request one at least 5 days in advance of the hearing, preferably as soon as you know your trial date. To do this, fill out and file a Request for Accomodations by Persons with Disabilities and Response (Form MC-410).
Read Going to Court to find out how to prepare for your court hearing.
9. The trial
The unlawful detainer trial will be at the courthouse. A judge or a commissioner will hear the case. There may be a jury if either side asked for one and posted the jury fees or was able to get them waived with a fee waiver.
For tips on how to prepare for your trial or hearing, read the section on Going to Court.
Once your case is called, the court generally has the plaintiff speak first. You will have to explain why the tenant should be evicted. The tenant will then have a chance to explain his or her side. The judge may ask both sides questions at any time and review any evidence that they present.
Listen carefully to what the judge says.
The court clerk will give or mail you a copy of a court order that says what the judge's decision is. The judge’s decision will be based on applying the law to the facts as the court decides them.
For information on how to collect any money the judge orders the landlord or the tenant to pay, read the section Collect your Judgment.
10. After the trial
If you (the landlord) win:
If the judge or jury decides you have the right to evict the tenant, the judge will give you a Judgment of Possession. The judge or jury may also order the tenant to pay back rent, damages, and costs, like filing fees and attorney fees (if this is in the rental agreement). You may also be able to get money for the rent that you could have gotten for the rental unit while the tenant was there illegally. If the court finds the tenant only stayed in the unit to be mean, spiteful, or to make you suffer, the court may order the tenant to pay a penalty of up to $600.
If the tenant wins:
The judge may decide the tenant has the legal right to stay in the property. If so, the judge may order you to pay the tenant's costs, like filing fees and attorney fees (if this is in the rental agreement). The judge may also decide how much rent the tenant has to pay.
11. Post judgment filings
The side that loses can appeal or can file a motion to set aside (cancel) the judge's order. There are strict deadlines to do this, and the side appealing needs a legally valid reason to do it. If you are thinking of appealing, talk to a lawyer.
If a tenant appeals or tries to cancel the judge’s order, the eviction is not stopped. The only way for a tenant to stop or delay the eviction is to ask for a stay of execution.
Even if a tenant does not appeal, he or she may want more time to move out. If the landlord will not agree to it, the tenant will also have to file a request for a stay of eviction ("stay").
A tenant has to file the stay as soon as he or she gets a notice from the sheriff giving him or her 5 days to leave the unit.
If it is granted, a stay will delay the eviction. Some courts almost never grant stays, so it is not something the parties should count on. If the judge lets the tenant remain in the rental unit longer, the tenant will have to pay the rent for that period of time. The amount of time the tenant can stay will depend on the county and the case.
The tenant needs a good reason to ask for more time. And there are no court forms to ask for a stay, so tenants should talk to a lawyer for help. Remember, a tenant must act very quickly or he or she will not be able to delay the eviction.
If you (the landlord) have already filed the unlawful detainer papers at court, and the tenant moves out before the trial, you have 2 choices:
1. Dismiss the case, or
2. Ask the court to convert the case to a regular civil case for damages to collect back rent in the amount requested in the unlawful detainer complaint.
To request a dismissal of the case, file a Request for Dismissal (Form CIV-110).
If you do not dismiss the case or ask that it be changed to a regular civil case for damages, the tenant may go to the trial and ask the court to dismiss the case because he or she has already moved out. If the tenant wins, he or she may get an award of costs for having to come to court for the trial when the case should have been converted to a regular civil case or dismissed.
If your tenant seems to have moved out, even if you have not filed an eviction case in court
If rent is 14 or more consecutive days overdue and the landlord has good reason to believe that the tenant has moved out without letting the landlord know, this is called “abandonment.”
If this happens, the landlord can send the tenant a Notice of Belief of Abandonment that includes the name of the tenant and the address of the rental unit. It must also say that this is a “Notice of Belief of Abandonment” and say what date the landlord is ending the lease or rental agreement. The date must be at least 15 days after the landlord serves the notice in person, or 18 days after he or she serves the notice by mail. The landlord must also sign and date the notice.
The tenant has 15 days if served in person, or 18 days if served by mail, to send the landlord a response telling the landlord that he or she has not abandoned the premises, or to pay the landlord all or part of the rent that is owed.
If the tenant does not answer the notice, the landlord can move the tenant’s belongings out and rent the place to someone else without having to file an unlawful detainer case.
BUT the landlord must be very careful because if the rent was not overdue for 14 days, or he or she did not wait long enough for the tenant to answer, or he or she had no good reason to think that the tenant moved out, the tenant could sue the landlord for “wrongful eviction.”