Eviction Defense — Understanding the Unlawful Detainer Process in San Diego

There are two kinds of ways landlords can terminate tenancies, wrongful evictions and unlawful detainers. Unlawful detainer is the legal jargon for saying the court proceeding for the landlord to regain possession of the rental unit. While this process is a legal process, the landlord has to play by the rules in order to reach their goal and put the tenant out on the street. Generally, evictions that do not follow the legal process is a wrongful eviction, and some attempts at regaining the property also count as wrongful evictions.

Notice:

The most important part of an eviction is the notice that terminates the tenancy. There are many types of notices that are used to terminate tenancies. The most common are notices that require performance (like to pay rent or to stop doing something) or notices to quit (most serious, as there is no cure for these notices). While there are many types of performance notices and quitting notices, the most common are:

Performance: pay or quit, perform or quit, and nuisance.

Quit: non-renewal, termination of tenancy for just cause (either no-fault just cause or at fault just cause), substantial remodel, owner move-in, withdrawal from the rental market, or notice to quit after non-performance..

For both types of notice, there is usually a time frame or period by which the tenant must comply with the notice (meaning, whether the tenant must perform or vacate the unit). Sometimes this period can be as short as 3-days, or as long as 90-days, with everything in between. Common periods are: 3 days, 10 days, 30 days, 60 days, and 90 days.  It is important to understand that certain types of notices require minimum timelines. For example, the minimum time to give a tenant to pay or quit is three days. Sometimes, however, the landlord can be required to give a 3 day notice to pay rent or quit in 30 days. Another example is that the minimum amount of time to inform a tenant to quit is 30 days, or if the Tenant Protection Act applies, then 60 days.

Regardless of the type of notice the landlord elects to use, the notice itself must be legally sufficient and applicable to the tenancy. For example, using a notice with too short of a time to comply (like a 2-day pay or quit) is not a lawful notice, or using a notice that includes demands for items the landlord is not entitled to in the notice (like late fees) is not a lawful notice as well.

To add further complications, some notices also restrict the days that count toward the notice. For example, a 3-day notice to pay or quit does not count weekends and judicial holidays, among other things, toward the period that tenants can perform.

Importantly, if a notice demands the tenant to do something (like pay rent) and the tenant attempts to perform, the landlord is obligated to accept the performance so long as the performance is timely. If the tenant tries to perform just outside of the window, then the landlord is not obligated to accept the tenants performance to keep the tenancy.

Given the massive complexity and the legal weight to an eviction notice, it is important to check with an experienced attorney whether the notice complies with California law and what exactly the tenant is obligated to do.

Beginning the eviction process in court – the unlawful detainer action:

Once the notice expires, the landlord is then allowed to begin an action in court to seek possession. Time is tight as this is a summary proceeding (meaning, in theory, the time from filing the complaint in court to the tenant hitting the streets is under two months – which is significantly shorter than most other civil litigation). Once the landlord files the complaint and lawfully serves the tenant with the court papers, the tenant generally has 10 days to file an answer the complaint. If the tenant does not answer the complaint within this time, the landlord can file for default and the tenant would lose all opportunity to defend against the eviction.

If the tenant files and serves their answer in time, then the landlord usually requests a trial date. By law, this trial date must be set within 7-20 days of the request. If the landlord wins at trial (they usually do, landlords are far more likely to have attorneys or other legal help than tenants are), then the sheriff performs a lockout, usually within a month of the judgment.

Clearly the timeline is compressed. Tenants need to act fast as there is no room for error.

At Renter Warriors, we try to even the playing field between landlords and tenants. While the laws in California generally favor tenants, the legal proceedings do not. Many landlords can afford to pay an attorney the attorney’s hourly rate, while most tenants can barely afford rent, let alone pay for the court costs and attorney’s fees. That is why we only charge an affordable, one-time payment of a flat fee for our attorneys’ fees.