m*******u
发帖数: 15 | 1 刚当房东，遇到拖交房租，不回消息不回电话的租客
明天准备给他3 day notice, 然后就是eviction。有人有这种经历吗
求推荐靠谱律师或者agent 谢谢 | S****e
发帖数: 931 | 2 You need to find an eviction attorney to do it | x****0
发帖数: 902 | 3 遇到这种倒霉，没有查他的credit么之前？
这人应该不是第一次了吧
【在 m*******u 的大作中提到】
: 刚当房东，遇到拖交房租，不回消息不回电话的租客
: 明天准备给他3 day notice, 然后就是eviction。有人有这种经历吗
: 求推荐靠谱律师或者agent 谢谢
| t**8
发帖数: 4527 | 4 到时候把结果update 一下， 我很感兴趣
http://www.dca.ca.gov/publications/landlordbook/evictions.shtml
Home
Consumers
Media
Publications
Online Services
The Eviction Process
California Tenants, A Guide to Residential Tenants' and Landlords' Rights
and Responsibilities
(Unlawful Detainer Lawsuit)
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 295 and unlawful use, manufacture
, or possession of weapons and ammunition,296 permit a city attorney or
prosecutor in selected jurisdictions 297 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.298 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.
299
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.300
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.301
If the court decides in favor of the landlord, the court will issue a writ
of possession.302 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.303 The judgment against the tenant will be
reported on the tenant's credit report for seven years.304
How to respond to an unlawful detainer lawsuit
If you are served with an unlawful detainer complaint, you should get legal
advice or assistance immediately. Tenant organizations, tenant-landlord
programs, housing clinics, legal aid organizations, or private attorneys can
provide you with advice, and assistance if you need it. (See "Getting Help
From a Third Party ")
You usually have only five days to respond in writing to the landlord's
complaint. You must respond during this time by filing the correct legal
document with the Clerk of Court in which the lawsuit was filed. If the
fifth day falls on a weekend or holiday, you can file your written response
on the following Monday or nonholiday.305 Typically, a tenant responds to a
landlord's complaint by filing a written "answer." (You can get a copy of a
form to use for filing an answer from the Clerk of Court's office or online
at www.courts.ca.gov/documents/ud105.pdf.
You may have a legal defense to the landlord's complaint. If so, you must
state the defense in a written answer and file your written answer with the
Clerk of Court by the end of the fifth day. Otherwise, you will lose any
defenses that you may have. Some typical defenses that a tenant might have
are listed here as examples:
The landlord's three-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 right or because the tenant complained to the building
inspector about the condition of the rental unit.
Depending on the facts of your case, there are other legal responses to the
landlord's complaint that you might file instead of an answer. For example,
if you believe that your landlord did not properly serve the summons and the
complaint, you might file a Motion to Quash Service of Summons. If you
believe that the complaint has some technical defect or does not properly
allege the landlord's right to evict you, you might file a Demurrer. It is
important that you obtain advice from a lawyer before you attempt to use
these procedures.
If you don't file a written response to the landlord's complaint by the end
of the fifth day, the court will enter a default judgment in favor of the
landlord. A default judgment allows the landlord to obtain a writ of
possession (see Writ of Possession), and may also award the landlord unpaid
rent, damages and court costs.
The Clerk of Court will ask you to pay a filing fee when you file your
written response. The filing fee typically is about $180. However, if you
can't afford to pay the filing fee, you can request that the Clerk allow you
to file your response without paying the fee (that is, you can request a
waiver of the fee). An application form for a fee waiver, called an "
Application for Waiver of Court Fees and Costs,"can be obtained from the
Clerk of Court or online at http://www.courts.ca.gov/documents/fw001.pdf.306
After you have filed your written answer to the landlord's complaint, the
Clerk of Court will mail to both you and the landlord a notice of the time
and place of the trial. If you don't appear in court, a default judgment
will be entered against you.
Special Rules for Tenants in the Military: A servicemember may be entitled
to a stay (delay) of an eviction action for 90 days. This rule applies to
the servicemember and his or her dependents (such as a spouse or child) in a
residential rental unit with rent of $2,400 per month or less, as adjusted
by the housing price inflation adjustment. The servicemember's ability to
pay rent must be materially affected by military service. The judge may
order the stay on his or her own motion or upon request by the servicemember
or a representative. The judge can adjust the length and terms of the delay
as equity (fairness) requires.307 Landlords that violate the court-ordered
eviction process in regards to a servicemember may face a fine and/or
imprisonment for up to one year.307.1
Eviction of "unnamed occupants"
Sometimes, people who are not parties to the rental agreement or lease move
into the rental unit with the tenant or after the tenant leaves, but before
the unlawful detainer lawsuit is filed. When a landlord thinks that these "
occupants" might claim a legal right to possess the rental unit, the
landlord may seek to include them as defendants in the eviction action, even
if the landlord doesn't know who they are. In this case, the landlord will
tell the process server to serve the occupants with a Prejudgment Claim of
Right to Possession form at the same time that the eviction summons and
complaint are served on the tenants who are named defendants.308 See
additional discussion of "unnamed occupants" and Claim of Right to
Possession forms.
Discovery in Unlawful Detainer Cases
Each of the four available discovery procedures requires a minimum of five
days' notice to the landlord before the landlord is required to respond.309
Available discovery procedures in unlawful detainer actions include oral
depositions,310 written interrogatories,311 inspection, copying, testing, or
sampling of the landlord's records, things, electronically stored
information and places,312 and requests for admissions.313 Under these rules
, the landlord must comply with your request for discovery within five days.
314 All discovery must be completed on or before the fifth day before the
date set for trial.315
If you intend to defend your case, and intend to use the discovery
process as a tool, you must follow strict timelines applicable to evictions
in California.
The discovery process works in five-day increments. Once you have been
served, you may begin your discovery by mailing any discovery requests. You
must allow five days for your request to be received by the landlord. The
landlord then has five days to respond to your request. All of the discovery
must be completed at least five days before the date of the trial.316
Before the court hearing
Before appearing in court, you must carefully prepare your case, just as an
attorney would. Among other things, you should:
Be mindful that when you have been served with the summons and complaint
, you have five days in which to file an answer. You should carefully read
the summons, which will have very specific information on how to answer the
complaint and the strict timelines. (Please refer to "How to respond to an
unlawful detainer lawsuit".).
Talk with a housing clinic, tenant organization, attorney, or legal aid
organization. This will help you understand the legal issues in your case
and the evidence that you will need.
Request discovery of the evidence that may be helpful to your case or to
preparing a defense. (See "Discovery in Unlawful Detainer Cases".)
Decide how you will present the facts that support your side of the case
- whether by witnesses, letters, other documents, photographs or video, or
other evidence.
Have at least five copies of all documents that you intend to use as
evidence—an original for the judge, a copy for the court clerk, a copy for
the opposing party, a copy for yourself, and copies for your witnesses.
Ask witnesses who will help your case to testify at the trial. You can
subpoena a witness who will not testify voluntarily. A subpoena is an order
from the court for a witness to appear. The subpoena must be served on (
handed to) the witness, and can be served by anyone but you who is over the
age of 18. You can obtain a subpoena from the Clerk of Court. You must pay
witness fees at the time the subpoena is served on the witness, if the
witness requests them.
The parties to an unlawful detainer lawsuit have the right to a jury trial,
and either party can request one.317 After you have filed your answer to the
landlord's complaint, usually the landlord will file a document called a
Memorandum to Set Case for Trial (officially called a "Request/Counter-
Request to Set Case for Trial" form (Judicial Council Form UD-150).)318 This
document will indicate whether the plaintiff (landlord) has requested a
jury trial. If not, and if you are not represented by a lawyer, tenant
advisers usually recommend that you not request a jury trial.
There are several good reasons for this recommendation: first, presenting a
case to a jury is more complex than presenting a case to a judge, and a
nonlawyer representing himself or herself may find it very difficult; second
, the party requesting a jury trial will be responsible for depositing the
initial cost of jury fees with the court; and third, the losing party will
have to pay all of the jury costs.319
After the court's decision
If the court decides in favor of the tenant, the tenant will not have to
move, and 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.
If the landlord wins, the tenant will have to move. In addition, the court
may order the tenant to pay the landlord's court costs and attorney's fees,
and any proven damages, such as overdue rent or the cost of repairs if the
tenant damaged the premises.
It is possible, but rare, for a losing tenant to convince the court to allow
the tenant to remain in the rental unit. This is called relief from
forfeiture of the tenancy. The tenant must convince the court of two things
in order to obtain relief from forfeiture: that the eviction would cause the
tenant severe hardship, and that the tenant is able to pay all of the rent
that is due or that the tenant will fully comply with the lease or rental
agreement.320
A tenant can obtain relief from forfeiture of a lease or a rental agreement,
even if the tenancy has terminated (ended), so long as possession of the
unit has not been turned over to the landlord. A tenant seeking relief from
forfeiture (or the tenant's attorney) must apply for relief at any time
prior to restoration of the premises to the landlord, but such a petition
should be made as soon as possible after the court issues its judgment in
the unlawful detainer lawsuit.321
A tenant who loses an unlawful detainer lawsuit may appeal the judgment if
the tenant believes that the judge mistakenly decided a legal issue in the
case. However, the tenant will have to move before the appeal is heard,
unless the tenant obtains a stay of enforcement of the judgment or relief
from forfeiture (described immediately above). The court will not grant the
tenant's request for a stay of enforcement unless the court finds that the
tenant or the tenant's family will suffer extreme hardship, and that the
landlord will not suffer irreparable harm. If the court grants the request
for a stay of enforcement, it will order the tenant to make rent payments to
the court in the amount ordered by the court and may impose additional
conditions.322
A landlord who loses an unlawful detainer lawsuit also may appeal the
judgment.
Writ of possession
If a judgment is entered against you and becomes final (for example, if you
do not appeal or if you lose on appeal), and you do not move out, the court
will issue a writ of possession to the landlord.323 The landlord can deliver
this legal document to the sheriff, who will then forcibly evict you from
the rental unit if you don't leave promptly.
Before evicting you, the sheriff will serve you with a copy of the writ of
possession.324 The writ of possession instructs you that you must move out
by the end of the fifth day after the writ is served on you, and that if you
do not move out, the sheriff will remove you from the rental unit and place
the landlord in possession of it.325 The cost of serving the writ of
possession will be added to the other costs of the suit that the landlord
will collect from you.
After you are served with the writ of possession, you have five days to move
. If you have not moved by the end of the fifth day, the sheriff will return
and physically remove you.326 If your belongings are still in the rental
unit, the sheriff may either remove them or have them stored by the landlord
, who can charge you reasonable storage fees. If you do not reclaim these
belongings within 18 days, the landlord can mail you a notice to pick them
up, and then can either sell them at auction or keep them (if their value is
less than $300).327 If the sheriff forcibly evicts you, the sheriff's cost
will also be added to the judgment, which the landlord can collect from you.
Setting aside a default judgment
If the tenant does not file a written response to the landlord's complaint,
the landlord can ask the court to enter a default judgment against the
tenant. The tenant then will receive a notice of judgment, and a writ of
possession as described above.
There are many reasons why a tenant might not respond to the landlord's
complaint. For example, the tenant may have received the summons and
complaint, but was not able to respond because the tenant was ill or
incapacitated, or for some other very good reason. It is even possible (but
not likely) that the tenant was never served with the landlord's summons and
complaint. In situations such as these, where the tenant has a valid reason
for not responding to the landlord's complaint, the tenant can ask the
court to set aside the default judgment.
Setting aside a default judgment can be a complex legal proceeding. Common
reasons for seeking to set aside a default judgment are the tenant's (or the
tenant's lawyer's) mistake, inadvertence, surprise, or excusable neglect.
328 A tenant who wants to ask the court to set aside a default judgment must
act promptly. The tenant should be able to show the court that he or she
has a satisfactory excuse for the default, acted promptly in making the
request, and has a good chance to win at trial.329 A tenant who thinks that
grounds exist for setting aside a default judgment should first seek advice
and assistance from a lawyer, a legal aid organization, or a tenant
organization..
Special rules for tenants in the military may make it more difficult for a
landlord to obtain a default judgment against the tenant, and may make it
possible for a tenant to reopen a default judgment and defend the unlawful
detainer action.330
A word about bankruptcy
Some tenants think that filing a bankruptcy petition will prevent them from
being evicted. This is not always true.
Filing bankruptcy is a serious decision with many long-term consequences
beyond the eviction action. In addition, much of what the public knows about
bankruptcy has been changed by the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005.
A tenant who is thinking about filing bankruptcy because of the threat of
eviction, or for any reason, should consult a bankruptcy expert and
carefully weigh the expert's advice.
Bankruptcy is a complicated legal specialty and explaining it is beyond the
scope of this booklet. However, here is some basic information about
bankruptcy as it relates to unlawful detainer proceedings:331
A tenant who files a bankruptcy petition after October 17, 2005 (the
effective date of the 2005 Bankruptcy Act) normally is entitled to an
immediate automatic stay (delay) of a pending unlawful detainer action. If
the landlord hasn't already filed the unlawful detainer action, the
automatic stay prevents the landlord from taking steps such as serving a
three-day notice or filing the action.332
The landlord may petition the bankruptcy court for permission to proceed
with the unlawful detainer action (called "relief from the automatic stay")
.333
The automatic stay may continue in effect until the bankruptcy case is
closed, dismissed, or completed. On the other hand, the bankruptcy court may
lift the stay if the landlord shows that he or she is entitled to relief.
334
The automatic stay normally does not prevent the landlord from enforcing
an unlawful detainer judgment that was obtained before the tenant's
petition was filed. In some cases, however, the tenant may be able to keep
the stay in effect for 30 days after the petition is filed.335
The automatic stay does not apply if the landlord's eviction action is
based on the tenant's endangering the rental property or using illegal
controlled substances on the property, and if the landlord files a required
certification with the bankruptcy court. The stay normally will remain in
effect, however, for 15 days after the landlord files the certification with
the court.336
A bankruptcy case can be dismissed for "cause" - for example, if the
tenant neglects to pay fees or file necessary schedules and financial
information, causes unreasonable delay that harms the landlord, or files the
case in bad faith.337
295 Civil Code Section 3486. This section will remain in effect until
January 1, 2014, unless extended by the Legislature. California Landlord-
Tenant Practice Section 3.7 (Cal. Cont. Ed. Bar 2011).
296 Civil Code Section 3485(a).
297 For unlawful detainers based on weapons and ammunitions allegations, the
cities are Los Angeles, Long Beach, Oakland, Sacramento, and San Diego. For
drug abatement unlawful detainers, the cities are Los Angeles, Long Beach,
Oakland, Palmdale, and San Diego.
298 Code of Civil Procedure Section 1167.3.
299 Code of Civil Procedure Section 1170.5(a).
300 Civil Code Section 789.3.
301 Civil Code Section 1717; Trope v. Katz (1995) 11 Cal.4th 274 [45 Cal.
Rptr. 2d 241]; see California Practice Guide, Landlord-Tenant, Paragraphs 9:
391.1-9:391.4, 9:391.10 and following (Rutter Group 2011).
302 Code of Civil Procedure Sections 712.010 and 715.010.
303 Code of Civil Procedure Section 1174(b).
304 Civil Code Section 1785.13(a)(2),(3).
305 Code of Civil Procedure Section 1167.
306 The application form is Judicial Council Form 982(a)(17). You should
qualify for a fee waiver if you receive benefits under the SSI/SSP, CalWORKs
/TANF, Food Stamp or General Relief/General Assistance program, or if your
gross monthly household income for a family of four is less than $2,401.05.
You also may qualify for fee waiver if your income is not enough to pay for
the common necessaries of life and also pay court fees and costs.
307 Servicemembers Civil Relief Act, 50 United States Code Appendix Section
531. See California Practice Guide, Landlord-Tenant, Paragraph 7:80.10 (
Rutter Group 2011).
307.1 Servicemembers Civil Relief Act, 50 United States Code Appendix
Sections Section 531.
308 Code of Civil Procedure Section 415.46.
309 Code of Civil Procedure Section 1170.8. Moskovitz, California Eviction
Defense Manual, Paragraph 23.1-23.52 (Cal. Cont. Ed. Bar 2011).
310 Code of Civil Procedure Section 2025.270(b).
311 Code of Civil Procedure Section 2030.260(b).
312 Code of Civil Procedure Section 2031.010, 2031.260(b), 2031.020(b)(c).
313 Code of Civil Procedure Section 2033.020(c).
314 Code of Civil Procedure Section 1170.8.
315 Code of Civil Procedure Section 2024.040(b).
316 The time periods discussed assume that no orders are obtained shortening
or extending time. See also Moskovitz, California Eviction Defense Manual,
Paragraph 23.8 (Cal. Cont. Ed. Bar 2011) for a day-by-day timeline.
317 The lease or rental agreement cannot require that the tenant waive the
right to a jury trial before a dispute arises. However, the lease or rental
agreement can require that any dispute that arises be submitted to
arbitration. (Grafton Partners LP v. Superior Court (PricewaterhouseCoopers
LLP (2005) 36 Cal.4th 944 [32 Cal.Rptr.3d 5].
318 In some counties, the court will set the trial automatically; in others,
the landlord must file the Request to Set Case for Trial form. Moskovitz,
California Eviction Defense Manual, Section 25.1 (Cal. Cont. Ed. Bar 2011).
319 See Portman and Brown, California Tenants' Rights, pages 291-293 (NOLO
Press 2010).
320 Code of Civil Procedure Section 1179.
321 California Practice Guide, Landlord-Tenant, Paragraph 9:444-9:445.1(
Rutter Group 2011). The tenant's written petition must be served on the
landlord at least five days before the date of the hearing on the request
for relief. If the tenant does not have an attorney, the tenant may orally
apply to the court for relief, if the landlord either is present in court or
has been given proper notice. The court also may order relief from
forfeiture on its own motion. The court may order relief from forfeiture
only on condition that the tenant pay all of the rent due (or fully comply
with the lease or rental agreement). (Code of Civil Procedure Section 1179).
322 Code of Civil Procedure Section 1176.
323 Code of Civil Procedure Section 715.010.
324 Code of Civil Procedure Section 715.020.
325 Code of Civil Procedure Section 715.010(b)(2).
326 Code of Civil Procedure Section 715.020(c).
327 Code of Civil Procedure Sections 715.030, 1174(h); Civil Code Sections
1965, 1988. See the Department of Consumer Affairs' Legal Guide LT-4, "How
to Get Back Possessions You Have Left in a Rental Unit.
328 Code of Civil Procedure Section 473(b). See Moskovitz, California
Eviction Defense Manual, Section 12.12 (Cal. Cont. Ed. Bar 2011).
329 Moskovitz, California Eviction Defense Manual, Sections 12.15, 12.16 (
Cal. Cont. Ed. Bar 2011). See Moskovitz et al., California Landlord-Tenant
Practice, Sections 13.7-13.14 (Cal. Cont. Ed. Bar 2011).
330 Servicemembers Civil Relief Act, 50 United States Code Appendix Sections
521(a),(b),(c),(g) and Judicial Council Form 982(a)(6); see California
Practice Guide, Landlord-Tenant, Paragraphs 8:518.5-8:518.7 (Rutter Group
2011).
331 See California Practice Guide, Landlord-Tenant, Chapter 10, (Rutter
Group 2011), Moskovitz et al., California Landlord-Tenant Practice, Chapter
14 (Cal. Cont. Ed. Bar 2011).
332 11 United States Code Section 362(a)(1)-(3) and 11 United States Code
Section 362(b)(22).
333 11 United States Bankruptcy Code Section 362(d).
334 11 United States Code Section 362(c),(d).
335 11 United States Code Sections 362(b)(22), 362(l)(1), which provide
protection for the tenant if there are circumstances which would allow the
tenant to cure the money damages or where the tenant has deposited with the
clerk of the court any rent due after the filing of the bankruptcy.
336 11 United States Code Sections 362(b)(23), 362(m)(1).
337 Moskovitz et al., California Landlord-Tenant Practice, Section 14.32 (
Cal. Cont. Ed. Bar 2011).
Back to Table of Contents
2012 Edition
Select Language▼
Back to Top | Conditions of Use| Privacy Policy | Accessibility | Contact Us
| Help
Copyright © 2016 State of California
This web site contains PDF documents that require the most current version
of Adobe Reader to view. To download click on the icon below.
Get Adobe Reader
【在 m*******u 的大作中提到】
: 刚当房东，遇到拖交房租，不回消息不回电话的租客
: 明天准备给他3 day notice, 然后就是eviction。有人有这种经历吗
: 求推荐靠谱律师或者agent 谢谢
|
|
