What is an Unlawful
Detainer lawsuit?
An unlawful detainer lawsuit is a suit brought by a landlord to obtain
possession of rented property and receive payment of back rent. In
order to legally evict a tenant, the landlord must file an unlawful
detainer lawsuit. The filing fee is $195 if
the demand amount does not exceed $10,000. If the demand is between
$10,000 and $25,000 the filing fee is $315. If
the demand is over $25,000 the filing fee is $320.
Are Unlawful Detainer actions public record?
Access to the court file, index, register of actions, or other records
is not permitted until 60 days after the complaint is filed, except
pursuant to an ex parte order upon a showing of good cause. Access
is allowed to a party or an attorney in the action. See CCP 1161.2
for other exceptions.
If a defendant prevails in the action within 60 days after the complaint
is filed, the court clerk may not allow access at any time to any of
the documents specified in the above paragraph.
How do I respond to an Unlawful
Detainer lawsuit?
If you are served with an unlawful detainer complaint, the complaint
will show the court location where you should file your response. You
have five days to respond in writing to the landlord’s complaint. Your
response must be served by someone over the age of 18 and not a party
to the action. After you have filed your written answer to the
landlord’s complaint in the clerk’s office and a memorandum
to set trial is filed by the plaintiff, you will both be notified by
mail of the time and place of trial. When you file your written
response, the filing fee is $180 if the demand amount
is less than $10,000. If the demand is between $10,000 and $25,000
the filing fee is $300. If the demand is over
$25,000 the filing fee is $320. If the demand is over
$10,000 contact the court clerk for the filing fee amount. However,
it is possible to obtain a waiver of the fee if you cannot afford to
pay. A fee waiver form Application for Waiver of Court
Fees and Costs, can be obtained from the clerk’s office.
What is a Writ of Possession/Notice
to Vacate?
If the case goes to trial and the landlord wins the unlawful detainer
lawsuit, the court will issue a judgment of possession. To enforce
the judgment, the landlord will then obtain a Writ of Possession that
directs the Sheriff to enforce the judgment for possession of the property. This
legal document authorizes the Sheriff to physically remove and lock
the tenant out of the property. The Sheriff’s costs from
the eviction will then be added to the judgment, which the landlord
can collect from you. The Sheriff will serve you with a Notice
to Vacate the property before enforcing the Writ of Possession. After
you receive the notice, you have five days to move. If you fail
to move within five days, the Sheriff will turn over possession of
the property to the landlord.
What happens if I fail to respond to the Unlawful
Detainer lawsuit?
The Court may enter a default judgment in favor of the landlord and
issue a Writ of Possession if you fail to respond
after the fifth day. This default judgment allows the landlord to obtain
possession of the property through a Notice to Vacate (see
question #3).
Do I have the right
to a jury trial?
Both parties have the right to a jury trial. To request a jury
trial, the requesting party must file a document entitled a Memorandum
to Set for Trial at least 5 days prior to the scheduled
trial date. All appearing parties will be mailed a Notice
of Trial informing them of the trial date. The party
requesting a jury trial will be responsible for the initial $150cost
for jury fees.
What if I have to
change my trial date?
To change your trial date you need to either file a Motion
for Continuance along with a $40 fee or a written stipulation
(agreement by both parties) as soon as the need for a continuance is
known. The judicial officer may grant a continuance without the
motion or stipulation.
What should I do to
prepare for my court trial?
If you are not represented by an attorney, you can represent yourself. If
you are representing yourself in a Superior Court action you can contact
a legal aid society for advice. The telephone numbers are listed
below:
| Lompoc |
(805) 736-6582 |
| Santa Barbara |
(805) 963-6754 |
| Santa Maria |
(805) 922-9909 |
| Solvang |
(805) 736-6582 |
- Bring any letters, documents, photographs, inspection reports,
or any other exhibits with you to trial.
- Have at least two copies
of all documents, an original for the court and a copy for the
opposing party.
- Witnesses that are necessary for your defense should be subpoenaed
for appearance in court. Subpoenas must be served and filed
with the court on or before your trial date. You cannot serve
the subpoena, and the person(s) served must be given reasonable
notice of the date and time of the trial. The cost to request
each witness is $35, plus $.20 per mile for mileage to and from
the trial location.
Will the Court provide
interpreters for Unlawful detainer cases?
The Court DOES NOT provide foreign language interpreters for unlawful
detainer cases. If you do not speak and understand English, you
should bring a friend or relative, or hire an interpreter. Individuals
soliciting business in the hallways are not authorized to do so and
are not employees of the court.
Note: The Court does provide interpreters for the hearing impaired
(sign-language interpreters only).
What will happen
if I lose the case? May I appeal the judgment?
IIf the landlord obtains judgment against you, you will have to move. The
judgment may include the landlord’s court costs and attorney
fees plus any proven damages. You may appeal the judgment; however,
an appeal does not automatically stay proceedings upon the judgment. To
stay the execution of the judgment during the appeal process you must
file a Petition for Stay of Execution Pending Appeal.
Petition for Stay of Enforcement – A petition
for stay must first be directed to the judicial officer who hears your
case. Petitions are not granted unless it can be shown that you
will suffer extreme hardship in the absence of a stay,
and that the stay will not cause a hardship to the landlord. If
the judicial officer grants the petition, you will have to pay the “reasonable
monthly rental value” to the court in advance as rent becomes
due. The Court also has the discretion to impose other conditions
on the granting of the stay. The Court also has the discretion
to restore a tenant to his/her former tenancy in cases of extreme
hardship. You may petition the Court to be restored
to your tenancy by filing an Application and Petition for Relief
from Forfeiture.
Relief from Forfeiture of Lease – Hardship
is the only basis on which the court may relieve a tenant from forfeiture
of a lease. If the petition is granted, you will be required
to make full payment of all rent due and to fully perform any other
conditions of the lease, if applicable. The Court may also require
you to pay the landlord’s attorney fees and costs.
SC-2045 [Rev. Jan. 1, 2006]
UNLAWFUL
DETAINER RULES & CODES
| Unlawful Detainer Complaint |
CCP 1166 |
| Summons |
CCP 1167 |
| Service (Prejudgment Claim) |
CCP 1167.25 |
| Answer |
CCP 1167.3 |
| Trial Setting |
CCP 1170.5 |
Default / Default Judgment by Clerk
for possession only |
CCP 1169 |
| Motion for Summary Judgment |
CCP 1170.7 |
| Jury Trial |
CCP 1171 |
| Court Judgment |
CCP 1174 |
| Prejudgment Claim of Right to Possession |
CCP 1174.25 |
| Claim of Right to Possession |
CCP 1174.3 |
LEGEND: |
| California
Law: Code of Civil Procedure |
CCP |
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