Superior Court of California, San Bernardino County

Superior Court of California, San Bernardino County

Landlord/Tenant

Forms and Form Kits: Workshops:
  • How to Prepare the Unlawful Detainer Answer
    (Please contact the Resource Center for Information)

General Information:

Our Resource Center can assist self-represented litigants with their landlord/tenant cases. Although we can explain court procedures and review forms, we cannot provide legal advice, and we do not have the ability to complete forms for you. Our services include information on pre-eviction for both landlords and tenants, starting or answering a landlord/tenant (eviction) action, and assistance with preparing the eviction forms for both sides. You can visit our Resource Center in person, or contact by phone or email for assistance. For general information on landlord tenant basics, you can click on each topic below.

What is a Landlord/Tenant action?

What must a Landlord do before filing a Landlord/Tenant action? (Notices)

Starting a Landlord/Tenant Action (Overview)

What are the Tenant’s rights?

Unknown Occupants

How to Request a Court Date for an Eviction

Landlord/Tenant Judgment Basics

What is a Landlord Tenant Action?

The legal process for evicting a tenant is referred to as a “Landlord/Tenant” action. In order to legally evict a tenant or tenants it is important for the landlord to follow some important and necessary steps. Although the Summons and Complaint is the first paperwork that you will be filing at the courthouse, you must first have served proper notice (for example, a three-day notice) upon the tenant.

In California, a landlord may be able to evict a tenant if the tenant:
  • Fails to pay the rent on time;
  • Breaks the lease or rental agreement and will not fix the problem (like keeping when pets are not allowed);
  • Damages the property bringing down the value (commits "waste");
  • Becomes a serious nuisance by disturbing other tenants and neighbors even after being asked to stop; or
  • Uses the property to do something illegal.

What must a Landlord do before filing a Landlord/Tenant action?

Landlords must serve the tenants with a proper notice before filing the Summons and Complaint. The preliminary notice stage is critical – if you served the wrong notice, the judge can throw out your eviction lawsuit and make you start all over. You will have to pay the fees again, too. Below are the different types of notices that can be used. If you are unsure about which notice to use, or if you would like to obtain a notice, you can visit our Resource Center in person or contact us by email.
  • 3 Day Notice to Pay Rent or Quit:
    • Legal notice to pay rent within 3 days or you will start eviction process.
    • Notice needs to include: tenant’s name, property address, amount of rent, how tenant can pay the money to you, the days and times payment may be made, and who the tenant can pay
  • 3 Day Notice to Comply or Quit:
    • Legal notice allowing the tenant a chance to correct a breach of their rental agreement.
    • Notice must specify the violation and what the tenant must do to correct it. It must be written in the alternative (i.e. comply or quit).
    • Notice needs to include tenant’s name and property address.
  • 3 Day Notice to Quit:
    • Legal notice for tenant to move out when the tenant commits a serious breach of the rental agreement; nuisance; uses the premises for illegal activity (e.g. selling drugs, prostitution); threatens the health and safety of other tenants or the general public; or causes significant damage to the property.
    • May be used to evict former owner of the property after sale.
    • Notice must specify the cause for the notice.
    • Notice needs to include tenant’s name, and property address
  • 30 Day Notice to Quit:
    • Used to terminate a month-to-month or periodic tenancy when the tenant lived in the property less than one year. No reason needed.
    • Notice needs to include tenant’s name and property address.
  • 60 Day Notice to Quit:
    • Used to terminate a month-to-month or periodic tenancy when the tenant lived in the property one year or more.
    • Notice needs to include tenant’s name and property address.
  • 90 Day Notice to Quit:
    • Required to evict a tenant after foreclosure of the property. This does not apply if the tenant is a party to the note that was foreclosed on or is an immediate family member of the foreclosed owner (use 3 Day Notice to Quit in that case)
    • As of 1/1/2013: new owner of foreclosed property may need to honor an existing lease. Exceptions: new primary residence; tenant related to note; under-market rent
How to Serve Notice – by YOU or any adult:
  • Deliver a copy personally to each Tenant Or
  • Deliver a copy to another adult on the property & follow up with a copy in the mail to each tenant Or
  • Post the notice on the door & follow up with a copy in the mail to each tenant.

Your notice paper should have a “Proof of Service” area on it. The person who serves is the one who signs it. Be sure to keep the original notice and only serve copies.

Note: In some cases, a landlord can give a tenant more than 1 notice at the same time. For example, if the tenant is always late with the rent, a landlord can serve a “3-Day Notice to Pay Rent or Quit” and a “30-Day Notice to Quit” at the same time. If the tenant does not pay the rent within 3 days of receiving the 3-day period, he or she must still move out in 30 days. If the tenant does not move out after the 30 days, then the landlord has to file an unlawful detainer case.

When Notice is NOT required:

A notice is almost always needed before filing an unlawful detainer case. But there are a few exceptions:
  • Fixed term leases: If the tenant has a lease for a fixed period of time, and the lease is up and the landlord does not extend it, the landlord can file an unlawful detainer case without giving notice first. But the landlord cannon take any rent after the lease runs out or he or she will be creating a month-to-month tenancy, which requires notice to terminate
  • The landlord accepts the tenant’s notice to end the lease. If the tenant gives the landlord notice that he or she will be moving out, but her or she does not, then the landlord can file an unlawful detainer case right away. The tenant works for the landlord and lives on the property as part of the job: The landlord can file an unlawful detainer case without notice as soon as the tenant does not work for the landlord anymore.

Starting a Landlord/Tenant Action (Overview)

If the tenant does not comply with the notice by paying rent and/or moving out, you have the option of going to Court and starting a Landlord/Tenant action (eviction).

Note: if you and the Tenant reach an agreement at any point during this process, the agreement can be written up and the case dismissed.

1. Fill out the forms:
  • Summons
  • Complaint
  • Civil Case Cover Sheet

These forms are available at the top of the page by clicking on: “Forms to Start an Eviction on a Tenant”

While completing the complaint, keep in mind:
  • The plaintiff is usually the owner or landlord (in some limited situations the management company may be the plaintiff). But sometimes the plaintiff may be a person who is subletting to another tenant. For example, a tenant renting a house from the landlord may rent a room to another person, and that person would be a subtenant.
  • The tenant who lives at the rental unit is the defendant. There can be more than 1 defendant.
  • You must try to list the names of all adults living at the rental unit. This will make it easier to enforce the judgment if you win.
2. File the Complaint:
  • Make 2 copies of the Summons and Complaint and take them with the originals to the courthouse in the county where the property is located.
  • Turn in your forms- original and copies- to the clerk. You will have to pay for the filing fee. (See Fee Schedule here for current Fees).
  • If you cannot afford the filing fee, you can ask for a fee waiver. If the court approves your fee waiver request, you will not have to pay the fees, but if you win your lawsuit and collect money, the court may ask you to pay back the waived fees.
  • The Clerk will stamp your forms “Filed” and give back 2 file-stamped copies of all the forms. One copy of each is for you. The other is for serving the tenant. If there is more than one tenant, make extra copies for the other tenants (you can make copies of the file-stamped copy for this purpose). The court keeps the original.
3. Serve the Summons and Complaint:
  • Every defendant/tenant named in the lawsuit must be served with the Summons and Complaint. Make sure a third party NOT involved in the case serves the Summons and Complaint on the defendant. You cannot serve the Summons and Complaint yourself, even if you served the notice. The tenant can be served in 1 of these 3 ways:
Personal Service The server gives the tenant the Summons and Complaint in person. If the tenant will not take the papers, the server can tell the tenant that he or she is being served and leave the papers as close to the tenant as possible.
Substituted Service If the server attempts to personally serve the defendant with due diligence but cannot find them, the server may use substituted service. With substituted service, the server can give the court papers to a competent member of the household where the tenant lives, works or receives mail. The server must also mail a copy of the Summons and Complaint to the tenant at the address where the papers were left. Service is considered complete on the 10th day after mailing of the papers to the tenant.
The landlord cannot use this type of service until the server tries at least 2 or 3 times, on different days and at different times of the day, to serve the tenant in person. This is called "due diligence." The server will have to fill out a form that says what days and times he or she tried to serve the tenant in person and that he or she exercised "due diligence."
Posting and Mailing The landlord can only use this type of service if the court gives him or her permission. To ask the court, the server must first try to serve the tenant in person and by substituted service, and write a declaration for the court explaining that he or she was not successful.
If the judge lets the landlord serve by posting and mailing, the server has to post a copy of the Summons and Complaint on the property where the tenant will see it and send another copy by certified mail to the tenant at the tenant's last known address. Service is considered complete on the 10th day after the certified mailing of the papers to the tenant.

4. Fill out and File the Proof of Service
  • The server must first complete and sign a Proof of Service of Summons (Form POS-010) and give it to you (the landlord).
  • You must then take the completed, signed Proof of Service to the clerk for filing with a copy for yourself. You must make sure the Proof of Service is filled out correctly. A mistake on this form can delay the case.

What are the Tenant’s rights?

If you are a Tenant served with a Notice:

In general, once a landlord gives you notice, you can:
  • Do what the notice asks within the time allowed,
  • Not do what the notice asks, or
  • Try to reach an agreement with the landlord.

If you do not do what the notice asks, the landlord can file an unlawful detainer case in court to evict you and collect back rent. If you do what the notice requires (like pay the back rent in full), then the landlord cannot file an unlawful detainer case. If he or she does anyway, you can defend yourself against it. If the landlord does not wait until the notice period runs out to file the eviction case in court, you can ask the court to dismiss the case.

To count the days in the notice period:
  • The first day is the day after the notice is served.
  • Then count every day on the calendar, including weekends.
  • If the last day of the notice period falls on a holiday or weekend, then the notice period ends the next work day.
  • If the landlord does not serve the notice in person and has to mail a second copy, the notice period starts running the day after he or she mails the notice.

If you are a Tenant served with a Summons and Complaint:

After you are served with the Summons and Complaint, you have to file a response to the lawsuit with the court to defend yourself in the case. The response has to be in the proper legal form. It is not enough to call or write a letter to the landlord. It is also not enough to write a letter to the court. You have to file your response within the deadline.

The Answer is the most common type of response. With the Answer, you can present your side of the story and dispute any facts the Plaintiff asserts in the complaint. Each person named in the eviction lawsuit has the right to file an Answer. If no responsive pleading is filed, then the landlord will win the case automatically. There are pros & cons to filing an Answer and only you can decide if you need to do it. Legal assistance programs, like Legal Aid, Inland Counties Legal Services, and Inland Empire Latino Lawyer’s Association, or the Court’s Resource Centers, can talk to you about your options.

Also, a tenant always can try to contact the landlord (or the landlord’s attorney) to see if a deal can be reached about leaving the property.

To figure out how much time you have to respond:
  • If you were served in person, you have 5 days to respond. Weekends are counted (holidays are not), but the 5th day must be a work day. So if the 5 days run out on a Saturday or Sunday, the tenant has until the end of the day on Monday (or Tuesday, if Monday is a holiday) to file a response.
  • If you were served by substituted service or "post and mail," you have 15 days after the date the server mailed the court papers to file a response. The date of mailing is the postmark date.

Unknown Occupants

People who are not named as tenants in the rental agreement or lease sometimes move into a rental unit before the landlord files the landlord/tenant (eviction) lawsuit. The landlord may not know that these people (called "unknown occupants") are living in the rental unit, and therefore cannot name them as defendants in the summons and complaint.

Landlords:

If there are unknown occupants in the property that you did not name in your eviction complaint, they may be able to fight the eviction, even if you initially get your eviction judgment. If you did not include them in the Complaint, you have two choices. The two choices are:
  1. Do nothing: Unless a Prejudgment Claim of Right to Possession was served on the unknown occupant, any unknown occupant not named in the judgment for possession who occupied the premises on the date of the filing of the action may object to enforcement of the judgment by filing a Claim of Right to Possession. OR:
  2. If there are unknown occupants, the Sheriff or Registered Process Server may serve the unknown occupants a Prejudgment Claim of Right to Possession (Form CP 10.5) as well as copies of the Summons and Complaint.
    1. The Prejudgment Claim of Right to Possession gives the unknown occupants of the property the chance to file a claim with the court within 10 days. The claimant will then be added as a defendant, and must serve and file a responsive pleading answer within 5 days after filing the Prejudgment Claim of Right to Possession.
    2. If the unknown occupant does not file anything, then the sheriff will evict them if you win.

Note: If you are evicting tenants after acquiring the property in a foreclosure, this 10 day limit does NOT apply and the tenants can file the Prejudgment Claim at any time before the judgment is final, or challenge the eviction after the judgment.

Unknown Occupants:

If you are not named in the lawsuit and are served with a Prejudgment Claim of Right to Possession, you have to decide whether to file the Prejudgment Claim of Right to Possession to become officially involved in the case.
  • If you decide to file a Prejudgment Claim of Right to Possession, you must file the claim within 10 days of being served.
    • Filing a claim is considered a general appearance, requiring a filing fee.
    • Once you file the claim, you will be added as a defendant. You must serve and file an answer within 5 days after filing the Prejudgment Claim of Right to Possession.
    • As a party to the case, you may be named as part of the judgment which may affect your credit rating and/or allow the landlord to collect the judgment from your assets.
  • If you do not file a Prejudgment Claim of Right of Possession, then your name does not become associated with the eviction but you would have to move if the Sheriff came with the lockout order.

How to Request a Court Date for an Eviction

You can only request a court date for an eviction hearing after you have completed the first 3 steps:
  • Step 1: Give the tenant legal notice that you want to evict like the 3 Day Notice to Pay or Quit
  • Step 2: File your eviction lawsuit with the court & serve tenant
  • Step 3: The tenant files an Answer with the court

Once the Tenant files an Answer, you can request that the clerk set up a court date. After filling out the form above, called the “Form to Request an Eviction Trial Date” (UD-150), you must have it served by mail on the Tenant, then file it at your courthouse. The clerk will then mail you a court date. The trial will take place within 20 days.

If the tenant does not agree with the information in your Request to Set Case for Trial, he or she may also file and serve you with a Counter-Request.

Your eviction trial date is NOT the Status Conference date that was already mailed to you from the clerk’s office. The Status Conference date is just a check up to make sure you served the tenant and are moving the case forward. So if you are interested in getting to see the judge for the eviction, you will need to fill out the Request to Set Case for Trial form.

Note: Both you and the tenant have a right to a jury trial. See the Self-Help Resource Center for additional information. If the Tenant has not filed an Answer and it has been more than 5 days after the Tenant was served, then you can complete a Default Judgment.

Landlord Tenant Judgment Basics

In order to legally and successfully evict a tenant or tenants it is important for the landlord to follow some important and necessary steps. A landlord can file a default judgment to finish their case when a tenant(s) has been properly served with an unlawful detainer summons and complaint, and the tenant(s) have not timely filed a response with the court.

Usually a tenant is required to file the Answer within 5 calendar days from the date that they received the summons and complaint – don’t count court holidays. If the tenant(s) were not personally served then they might have additional time to file a response. If you served “unknown occupants” through a registered process server, then you must wait 15 days to file the default paperwork.

A tenant may file an Answer until the Landlord files the default paperwork. Verify with the court clerk that your tenant did not file an Answer before proceeding with the default judgment forms. The tenant is required to mail you a copy before the Answer gets filed by the court. Sometimes you get the Answer a few days later in the mail.

If a tenant files an Answer, then your next step is to file the Request to Set Case for Trial (UD-150). Note: if you listed more than one person as a defendant on your case, then treat the actions of each person separately.

Example:
  • Tenant #1 filed an Answer. File the Request to Set Case for Trial as to Tenant #1.
  • Tenant #2 did nothing. File the Request for Entry of Default as to Tenant #2.

If you are ready for a default judgment:

There are two types of paperwork for default judgments in unlawful detainer cases.
  1. Clerk’s Default Judgment: If you want to get possession of your property back the fastest, start with the Clerk’s Default Judgment. This paperwork is only processed by the clerk’s office. Once the clerk’s judgment for possession has been processed the landlord can obtain a writ of execution. The writ of execution is a document that the landlord will need to give a Sheriff in order for the Sheriff to evict the tenant(s).
  2. Court’s Default Judgment: After you get the property back, you would follow it up with a Court’s Default Judgment to get the monetary damages (like back rent) that were originally requested in the complaint. This paperwork starts at the clerk’s office and then needs to be routed to the Judge for review and signature.

The alternative would be to submit one Court’s Default Judgment asking for both possession and monetary damages; return of the signed judgment may take longer to get back as compared to the Clerk’s Default Judgment for possession. The processing time varies by each court location, depending upon the backlog. It may take a few days for even the clerk’s judgment to be processed.

It is the landlord’s decision which type of default judgment they would like to file.

The following documents and information will be necessary to fill out your forms completely and accurately:
  • A copy of the complaint
  • Date on which you filed the complaint
  • Date that notice expired (3-day notice, 30-day notice, etc.)
  • Daily Rental Rate (Daily damages)
  • Original or Copy of rental agreement (if any)
  • Proof of Service of Summons must be filed with the clerk’s office – can be filed at the time of default.

Judgment after Trial:

If the landlord wins: If the judge or jury decides you have the right to evict the tenant, the judge will give you a Judgment of Possession. The judge or jury may also order the tenant to pay back rent, damages, and costs, like filing fees and attorney fees (if this is in the rental agreement). You may also be able to get money for the rent that you could have gotten for the rental unit while the tenant was there illegally. If the court finds the tenant only stayed in the unit to be mean, spiteful, or to make you suffer, the court may order the tenant to pay a penalty of up to $600.
  1. You must complete a Judgment of Possession (Form UD-110) and bring it with you to the court hearing, the court will not provide this form. This form gives you possession of the property.
  2. Then, you must fill out and have the court clerk issue a Writ of Execution (Form EJ-130) and take the writ to the sheriff. This lets the sheriff remove and lock the tenant out of the property.
  3. The sheriff will serve the tenant with a notice to vacate the property. This gives the tenant 5 days to move. If the tenant does not move, the sheriff will remove the tenant from the rental unit and lock him or her out.

If the tenant wins: The judge may decide the tenant has the legal right to stay in the property. If so, the judge may order you to pay the tenant's costs, like filing fees and attorney fees (if this is in the rental agreement). The judge may also decide how much rent the tenant has to pay.

The side that loses can appeal or can file a motion to set aside (cancel) the judge’s order. There are strict deadlines to do this, and the side appealing needs a legally valid reason to do it. If a tenant appeals or tries to cancel the judge’s order, the eviction is not stopped. The only way for a tenant to stop or delay the eviction is to ask for a stay of execution - You will need to speak to an Attorney, the Self-Help Resource Center cannot assist you with this.

Even if a tenant does not appeal, he or she may want more time to move out. If the landlord will not agree to it, the tenant will have to file a request for a stay of eviction (“stay”).

If the tenant moves out before the case is over:

If you (the landlord) have already filed the unlawful detainer papers at court, and the tenant moves out before the trial you have 2 choices:
  1. Dismiss the case, or
  2. Ask the court to convert the case to a regular civil case for damages to collect back rent in the amount requested in the unlawful detainer complaint.

To request a dismissal of the case, file a Request for Dismissal (Form CIV-110). If you do not dismiss the case or ask that it be changed to a regular civil case for damages, the tenant may go the trial and ask the court to dismiss the case because he or she has already moved out. if the tenant wins, he or she may get an award for having to come to court for the trial when the case should have been converted to a regular civil case or dismissed.