2. Eviction Process in California Courts
A landlord must first serve some type of notice to quit before they can actually evict you. It is a myth that a landlord will have the sheriff’s office come and throw you out after the notice expires. In San Francisco, the notice to quit must be filed at the SF Rent Board. The notice to quit in SF must state the just cause for eviction if the tenancy falls under the SF Rent Ordinance. Some of the exceptions are if the tenancy is in a cooperative, or the tenant lives with the landlord or it’s a boarding house. See the definitions section of the SF Rent Ordinance (Go to the SF Rent Board website). A landlord in a city other than San Francisco, Berkeley and Oakland can evict a tenant for any reason without stating the reason in the notice to quit, as long as it is not for an illegal purpose such as discrimination (i.e. race) or retaliation. Many notices give a tenant an opportunity to cure some breach in their agreement (i.e. 3 day notice to pay rent or quit). Some notices, such as illegal activity in the unit, do not give the tenant an opportunity to cure a breach of the lease.
If the notice expires and the tenant remains in the unit and has not cured the breach, then a landlord must file an Unlawful Detainer (eviction lawsuit) in the Superior Court at the County courthouse. That is the only way to legally evict a tenant. The landlord is then required to have the tenant served with the lawsuit. The lawsuit cannot be served by the landlord himself. Some criminal landlords will claim that the tenant has been served when the tenant has not been served with legal papers, which is also known as “sewer service.” If you had a notice to quit and it has been more than 5 days since it expired, call our office or some eviction service (See Links on this website) immediately!
Once the tenant has been served then they have five days to file a response. A response can be an answer, in which a tenant admits or denies everything in the lawsuit and raises any affirmative defenses (i.e. retaliation). The tenant may also file a motion such as a demurrer or a motion to strike or a motion to quash. It would be very difficult for a tenant representing oneself to prepare one of these motions, so make sure you have a law firm or eviction service prepare a motion if you are going to file one.
In most cases, at some point the tenant will need to file an Answer. In San Francisco, a Demand For A Jury Trial is usually filed with the Answer. In other jurisdictions, the Jury Demand is filed later. Subsequently, the landlord sets the case for trial. It is almost always expedient to request a jury trial because a jury is more likely to decide to allow a tenant to remain in their home then a judge. Jury trials also take more time which makes the process more expensive for the landlord and will improve the tenant’s leverage for a good settlement. If a Jury Demand is filed then a Settlement Conference with a judge or a lawyer acting as a judge will be scheduled. Most eviction cases settle at this point, especially in the tenant is represented by counsel. If the tenant decides to move out it is not uncommon for the tenant to get months to move without paying back-rent or without having to pay rent up through the date they vacate their home. Sometimes the landlord’s grounds for eviction consist of fraud or there are many defective conditions in the unit, so the tenants’ counsel is able to negotiate to keep the tenant in their home.
Finally, if the case cannot be settled then the landlord either dismisses the case (very common when the tenant is represented by counsel), and the tenant gets to remain in their home, or the case goes to trial. When there is a trial, the judge or jury will decide if the tenant will be evicted. If the defense is based on the home being uninhabitable and the judge or jury agrees, then the rent may be reduced down to some percentage of the total rent or a jury could decide that the premises has no rental value. Should the rent be reduced by some percentage, for example, by 50%, then the tenant would have 5 days after the judgment is entered to pay 50% of the back-rent up through the date trial began. If the tenant pays all of the back rent ordered by the court within 5 days, then that tenant can remain in their home. If they don’t pay, then the landlord can get judgment entered in their favor, and then take the judgment with a writ of execution to the sheriffs’ office and the tenant will be removed by sheriffs within about 2 weeks, depending on the jurisdiction.