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Tenant Guide Eviction Process
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.
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 non holiday.305 Typically, a tenant responds to a landlord’s complaint by filing a written “answer.”
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 page 77), 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 www.courtinfo.ca.gov/cgi-bin/ forms.cgi (Form 982a(17)).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 service member may be entitled to a stay (delay) of an eviction action for 90 days. This rule applies to the service member 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. The service member’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 service member or a representative. The judge can adjust the length and terms of the delay as equity (fairness) requires.307
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 $2,296.88. 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 Sections 501-596 and Section 531. See California Practice Guide, Landlord-Tenant, Paragraph 7:80.10 (Rutter Group 2006).
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Do you know the approx. timetable of eviction after the court date…in the event you lose the case or if you just don’t show up for the hearing? We are going to file our answer to the courts in the next few days and are trying to get an idea of how much time we have.