CIVIL COURT EVICTION PROCESS:
Since many of you have never been to
Court, you are probably wondering what happens when you must go to Court. The
purpose of this page is to provide you with a non-technical overview of
the civil court process. It is not designed to provide you with information on
specific defenses, or technical maneuvers that a party might use. So
please keep that in mind when you read the following materials.
Notice:
The process begins by the landlord serving some kind of
a notice on the tenant. The landlord will either want the tenant to pay
rent, stop doing something that they are not suppose to do, do something that
they agreed to do, or just get out. With some of these notices the tenant
will have a brief time in which to do something, cease doing something or pay
the rent. Usually within a brief time period between 3 and 5 days. In
other cases, they just want the tenant to move out and there is very little you
can do about this type of notice. This may follow a foreclosure on the property,
the expiration of the lease or they want to use the property for something
else.
The notice is usually for 3,
5, 30 or
60 days depending on what they want the tenant to do and why they want the
tenant to
leave. If the tenant does absolutely nothing, it will probably take
the landlord about 30 to 45
days to get rid of the tenant. This assumes that the tenant doesn't file for bankruptcy
protection. If
the tenant doesn't comply with the notice, then the landlord must take the next step and file
suit against the tenant and everyone else in the unit.
Filing of Unlawful Detainer Action:
Depending upon the individual
landlord, the lawsuit will be prepared and filed anywhere from the 4th. day up
to more than a week after the tenant receives the notice. If the
tenant received a 30 or 60 day notice, the landlord must wait until the
stated time period has elapsed. In any event, one day a process server will show
up and serve the tenant with a copy of the Summons and Complaint. The
summons will say that the tenant only has 5 days to Respond by filing a
responsive document. The document can be an Answer, a Demurrer or other
legal document. Service of the Pre-judgment
Claim of Right to Possession:
If the Complaint doesn't list
every occupant in the unit, the affected or unnamed tenant possibly has an Arrietta claim. When
the tenant was
served with the Summons and Complaint, the landlords should have served them
with a Pre-judgment Claim of Right to Possession. Service of this
form puts any and all unnamed occupants living in the residence on notice that,
unless they identify themselves to the landlord, they may be evicted along with
the other tenants. Not all landlords know about this form or even bother to
serve it with the Summons and Complaint.
Service of Process on the Tenant:
The process server has
several legal options when they come to serve the tenant with the Summons and Complaint.
They can personally serve the tenant at home or work. They can legally serve someone at
the tenant's place of work who appears to be in charge. They can leave the papers with someone
over 18 years of age at your home. If after several attempts and obtaining a
Court Order they will do what is called a "Nail and Mail" service.
They post a copy of the Summons and Complaint on the door and mail you another
copy.
Legally they are not suppose to
throw the papers on the ground outside of the tenant's unit and leave. However, many unscrupulous
process servers will do just that. If you are the victim of such acts, do not
ignore the papers. If the process server signs and files a proof of service
with the Court, the tenant is going to have take steps to set this injustice
right.
If you are a
tenant, be wise. If you are aware that a lawsuit is out there, you
should take immediate action. You should have a lawyer lined up and ready to go.
Because if you don't respond to the Summons and Complaint within 5 days, at
worst the landlord will take your default and you will lose. At best, you will
incur additional expense and frustration in having to file a motion under Code of Civil Procedure
Section § 473 to have the court set aside your default. You may also challenge
the service in Court by filing a Motion to Quash Service of the
Summons. By the way the word is Quash not Squash.
Responding to the Complaint:
The Summons and
Complaint that was served on the tenant "alleges" that
either the owner or manager of the property is suing the tenant as a Plaintiff.
The Complaint further alleges that the tenant received proper notice, ignored it and
is still "unlawfully" in possession of the
premises. It still further alleges that as a result of the tenants "unlawful"
actions, the Plaintiff is entitled to recover the property and money in the form
of rent and damages.
Demurrer:
If the Complaint contains errors
on its face, then the tenant's attorney can challenge the landlords right to even file
this action by filing what is called a "Demurrer."
Basically a Demurrer says to the Court that the Complaint is so poorly
drafted that the tenant cannot answer the allegations. If the Court sustains the
Demurrer with leave to amend, then the Landlord must correct the complaint
within a short period of time and reserve the tenant by mail. If the Demurrer is
overruled then the tenant is the one with the short period of time in
which to file and answer.
A word of caution concerning these pre-answer maneuvers. If you do this type of
legal nit-picking, you are going to really aggravate the landlord. So don't
expect him to be open to a settlement later on. Sometimes it is just better to
file and answer and not educate the Plaintiff about
his errors.
The Answer:
The Answer is the
tenant's response to the
Complaint filed by the landlord. The tenant's answer basically denies the allegations of
the landlord, pleads any Affirmative Defenses that the tenant may want to raise, and
requests relief from the Court in your prayer for relief.
These documents must be filed in the Clerk's office of the local
Superior Court by the end of the fifth day or the landlord will take the
tenant's
default and the case is basically over. Mailing the document to the Court will not save you. There are
some rules which extend the time to answer until the next Court day if the fifth
day falls on a holiday or week end. But baring that exception, the tenant must file the
document by the end of the fifth day.
Civil Discovery:
Civil discovery is basically serves two
function. First it's an annoyance for the landlord to fill out the forms and
produce any evidence that the tenant requests. It is an inconvenience and many
landlords will ignore it. This is a mistake. If the landlord doesn't answer the
interrogatories or produce the materials that the tenant requested, the
judge will usually continue the case until he complies. In an appropriate case,
the judge could also award money sanctions or issue sanctions.
Secondly, discovery is a very good way for one side to learn about the other
sides evidence. Who do
they intend to call as a witness? Do they have any documents or photographs? The
reason why you go to the trouble is simple. You want to pin down the evidence
before you actually set foot in the courtroom. That way you can prepare your own
case to rebut their case. It also gives you an advantage in settlement
negotiations. I am not going
to go into each type of discovery tool available, as it would require more space
that we have available. Examples of these documents or forms would include, Form
Interrogatories, Special interrogatories, Notice to
Produce, Requests for Admissions, Deposition
Subpoena, and general Subpoenas for other
witnesses. Memorandum to Set Case for Trial:
Either party can request a
trial. The procedure for requesting a trial is for one or both parties to file a
document called a "Memorandum to Set Case for Trial."
Since the tenant doesn't want to move, it is not in his best interest to move
for an early trial. This explains why it is usually the landlord that requests
trial shortly after receiving the answer. The average Unlawful Detainer trial
lasts about 15 minutes to about an hour. It is very unusual for a U.D. Trial to
last longer in residential cases, although that is not true in commercial cases.
In a few days the Court will send the parties Notice of Trial telling the
parties where and
when trial is set for. Either party can request a Jury Trial, but that is hardly ever
done due to the expense involved.
Day
of Trial:
The Plaintiff, usually the
landlord puts on their case in chief first, when they are finished then the
tenant gets
to cross-examine the landlord and any witnesses they produce. Then it is the
tenant's
turn to put on their case in chief. Then the landlord cross-examines the tenant and
their
witnesses. He can call rebuttal witnesses and the tenant can call surrebuttal
witnesses. When everyone is thoroughly tired, each side will make a summation
called closing arguments and the judge will make the decision. Settlement
Opportunities:
At virtually every step of the way, both parties
have an opportunity to settle the case and avoid trial. Only a fool tries a case
that he can settle. Both parties should remember that fact. You have to keep
your mind on what you really are trying to achieve. For example, if you are the
tenant and really want to move anyway but only need some time, you may be able
to get what you want. You want out, the landlord wants you out. It sure sounds
like the basis for a settlement to me.
Sometimes the
landlord is no more anxious to try the case than the tenant is. He may not want the
judge to see photographs of his "jury rigged" wiring, or the lack of
dead bolt locks on the doors. Sometimes he will let you leave, without paying
the back rent just to get rid of you and the problem. This can lead to both of
you signing a Stipulation for Judgment that benefits both of you. The moral is
never overlook a settlement opportunity. The Judgment:
Following trial, the clerk
enters the judgment against the losing party, usually the tenant, and in favor
of the landlord. The landlord obtains a Writ of Execution or Possession which
the clerk issues and the landlord take to the Sheriff's Department for
Execution. A few days later the Sheriff will cause a Notice to Vacate to be
served on the tenant. This means that the tenant has only five (5) days to
move out.
After the five days has expired, a deputy Sheriff, a representative of the
landlord, and a locksmith will show up at your door. If you are still there, be
advised that they will physically remove you and escort you off the property.
The locks will be changed and a notice will be posted on the door. You have been
evicted. If you try and return, you will be arrested for trespass.
Any of your personal property left at the unit after you were evicted must be removed. You will have to make
arrangements with the landlord to remove it. If you don't remove it, the
landlord must give you 15 days' notice before they dispose of it. Be advised
that the landlord can charge
you the reasonable cost of moving and storage of your personal belongings. If
you still do not remove it and it is worth more than $300.00, the landlord
must publish a notice and auction the
property.
The Arrietta Claim:
Both parties should always be aware
of the so-called Arrietta claim. Any tenant, not named in the summons and
complaint, can assert this claim as late as when the Sheriff attempts to
serve the Notice to Vacate on the named tenants. The unnamed occupant merely has
to hand the Sheriff a document called the Claim of Right of Possession and the
process stops until this person's claim can be adjudicated in Court. The Court
must set a hearing within 5 days after receipt of the claim if no rent is posted
by the claimant. If the claimant posts 15 days worth of rent, then the court can
set the Areietta hearing from one to two weeks later.
At the hearing, If the judge decides that the
Arietta
claim is valid, then the landlord must start the whole eviction process over again as
to the claimant. This is done by serving a new 3-day notice, followed by the
service of the Amended Summons and Amended Complaint. The claimant is then free
to assert any or all of the responses mentioned above. On the other hand if the
claim is denied, then the Eviction process continues on.
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