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UNLAWFUL DETAINER
Information for Landlords and Tenants

Landlord Information

As the landlord, you must begin by giving the tenant an appropriate written notice. If you are uncertain whether this should be a 3-day or a 30-day notice, you should contact a legal advisor for assistance. If the tenant has not moved out by the end of the period stated in the notice, you can begin the legal process by filing a complaint with the court. The forms to do this may be purchased from the court or are available at no charge through the court's web site at www.stocktoncourt.org. You may file your papers in person or by mail.

When you submit your paperwork, you will need an original and at least two copies of the papers. You will also need to pay the appropriate filing fees. If you are unable to pay the court fees, you may qualify for a waiver of court fees and costs.

Service

The clerk will provide you with endorsed copies of the complaint and an original summons. You must then have the tenants personally served with the summons and complaint. You cannot do this yourself, but anyone who is over the age of 18 who is not a party to the suit can serve the papers for you. You may prefer to have the Sheriff's Department serve these papers for you, but you should be aware that they charge a fee for this service. The person who makes service will need to complete a Proof of Service form and give it to you. You must file this document with the court.

Once the tenants have been served, they have five calendar days to file a response with the court. If you do not receive a copy of the tenants' response by mail, you may want to come to the court to see if an answer has been filed. You should bring the original completed summons and proof of service with you to file them with the court.

If the tenants do not file a response to your complaint

If the tenants have not filed a timely answer or motion to quash service of summons and complaint, you will need to file a Request to Enter Default, a clerk's Judgment for Possession and a Writ of Possession. These forms may be obtained from the clerk's office or through the Judicial Council's web page. Once you give the completed paperwork to the clerk, you will receive the documents that you will need to take to the Sheriff's Department, Civil Division, to complete the eviction. You cannot evict the tenants yourself.

If the tenants do file a response to your complaint

There are a variety of options available to the defendants, including filing an answer or a motion in opposition to the complaint. In most cases, an answer will be filed.

When an answer has been filed, you will need to file the original proof of service and a Memorandum to Set Case for Trial. The Proof of Service address must be as listed on the Answer. The court will mail you a notice regarding the trial date once it has been scheduled. You should receive this notice in about one week.

Tenant Information

Before a legal action is filed

The landlord must begin the eviction process by giving you an appropriate written notice. This may either be a 3-day or 30-day notice, depending on the grounds for the eviction. If you are uncertain whether you have received the appropriate notice, you should contact a legal advisor for assistance. If you do not move out by the end of the period stated in the notice, the landlord can begin the legal process by filing a complaint with the court.

Service

After the landlord has filed the paperwork with the court, you will be served with the summons and complaint. Usually this involves a process server or a deputy sheriff personally handing you this paperwork. There are, however, other legal means of service, but the landlord may not serve the paperwork him/herself. If you are uncertain whether you have been properly served, you should contact a legal advisor.

Once you have been served, you normally have only five calendar days to file a response with the court. This may be an Answer or other legal pleading. The forms may be obtained from the Clerk's Office and are available through the court web site. Failure to take timely action will result in a default judgment being entered against you and the eviction process will move forward quickly.

If you do not file a response to the complaint

If you fail to respond to the complaint within the allotted time, the landlord will file a Request to Enter Default, a clerk's Judgment for Possession and a Writ of Possession with the court. After they have been filed with the court, the clerk will give the landlord the documents that s/he will need to take to the Sheriff's Department, Civil Division to complete the eviction. The landlord cannot evict you him or herself.

If you do file a response to the complaint

You may file and Answer to the Complaint yourself or you may seek legal advice to determine the appropriate response which you should file with the court. Most often, tenants choose to file an Answer to the Complaint. The forms for the Answer are available at the Clerk's Office or online through the Judicial Council's web site

When an Answer has been filed, the landlord will file additional paperwork with the court and a trial date will be set. The court will mail you a notice about the trial date once it has been scheduled.

Preparing for Your Trial

You should start gathering all of the information that relates to your case. This may include witnesses or paperwork such as the following:

  • an original of the lease or rental agreement,
  • any letters you may have written or received about the property,
  • any receipts you have,
  • any inspection reports from the building inspector or health department,
  • photographs,
  • police reports,
  • any other documents that you think will help you convince the judge of your position.

You will need to bring three copies of each paper with you: one for the judge, one for the other party and one for yourself.

Get your paperwork organized before you come to court so that you can easily find what you need when you are in the courtroom. You may want to make notes for yourself so that you don't forget to tell the judge something that you think is important

The court does not provide interpreters for this type of case. If you need an interpreter to help you in court, you must bring one with you. A family member or friend may serve as your interpreter.

The court does provide assistance for hearing impaired persons. Requests for this type of service must be made three days before your court date. Sign language interpreters and assistive listening devices are available. You may want to tell the clerk what type of assistance you need when you receive notice of the trial or hearing date.

Presenting Your Case in Court

There are a couple of things which you should keep in mind before entering the courtroom. It is important that you dress appropriately and take care about your personal hygiene. You want to show respect for the court and make a favorable impression on the judge. You may not bring food or drinks into the courtroom. You may not chew gum and should not read or sleep while you are there.

Unlawful detainer cases are heard in each of the courthouses in the county. Plan to arrive a few minutes before your case is scheduled to be heard. Several cases will be set for the same time period, so you may have to wait your turn.

The raised platform at the front of the room is where the judge will sit. This is called the "bench." The court clerk acts as the judge's assistant and is usually seated at a desk near the judge. This is the person who will ask you to promise to tell the truth. This is called "swearing in." A uniformed deputy sheriff will also be in the courtroom. He or she serves as the bailiff and is responsible for keeping order in the courtroom.

The clerk will take role to see who is present before the judge comes into the courtroom. When the judge comes into the courtroom, the bailiff will announce the start of court and the judge presiding.

When your case is called, walk to the front of the railing and be seated at the table at the front of the courtroom. The judge will ask the landlord to speak first. The tenant will then be given a turn to tell the judge his side of the story. You will need to speak clearly and only when the judge asks you to speak. You should address the judge as "Your Honor." You may not approach the bench to give the judge your paperwork. The bailiff or clerk will take any exhibits from you and give them to the judge.

Be sure you speak to the judge, not the other party. Never interrupt the judge while s/he is talking. The judge will be sure you get a turn to tell your side of the story. Try not to raise your voice in the courtroom; speak in a calm, clear way so that you can be understood. No matter how angry you may be with the situation, you should avoid calling the party names or using obscenities. When you are done talking, you should say, "Thank you, Your Honor," and be seated.

Do not interrupt the other party, no matter how much you may disagree with what is being said. Try not to make faces or gestures while the other party is talking.

After the tenants are done, the landlord may ask the court for permission to respond to what has been said. If the judge says no, do not argue. You may want to talk about things that are not relevant to your case, and the judge may not allow you to do this. Do not take it personally if you are told to stop talking about something.

The judge will usually tell you what the court's decision is at the end of the trial. If you do not hear what is said or do not understand something, you may want to say, "Your Honor, could you explain what you just said?"

Sometimes the judge will want to think about your case or research the law before making a decision. In this case, the judge may take the case under submission. When a decision has been made, the court will send a written decision to all of the parties.

Post Trial Procedures

The court will prepare the Judgment and Notice of Entry of Judgment. The landlord must prepare the Writ of Possession. These forms are available at the Clerk's office or through the Judicial Council web site. The landlord must pay any fees when submitting the paperwork. The clerk will then send this paperwork to the judge for signature and then the documents will be returned to the landlord and mailed to the tenant.

When the landlord receives the signed documents from the court, copies of the Writ of Possession should be taken to the Sheriff's Department. A deputy will give the tenants notice that they have five days to vacate the premises. Even though there is a court order, the landlord cannot personally evict the tenant.

If the tenants do not move out in the five-day period, the Sheriff will remove the tenants from the property and change the locks.

For more information the following Web sites may be helpful

California Department of Consumer Affairs Consumer Publications -- publishes legal guides covering various landlord/tenant topics:
http://www.dca.ca.gov/publications/landlordbook/index.shtml

Judicial Council of California — printable forms and other general information about courts:
http://www.courts.ca.gov/

National Housing Law Project -- focuses on public housing and low income tenants' issues.
http://www.nhlp.org/

California Department of Fair Employment and Housing -- provides materials related to California's fair housing laws, including frequently asked questions, brochures, and forms.
http://www.dfeh.ca.gov/index.html

Fair Housing —— It's Your Right: The Fair Housing Act – is a Web page posted by the U.S. Department of Housing and Urban Development that discusses the Fair Housing Act and includes information about filing a complaint.
http://www.hud.gov/fhe/fheact.html

What Should I Know Before I Rent? – contains questions and answers prepared by the State Bar of California.
http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10581&id=2185

CALPIRG Renter's Guide – contains questions and answers on topics such as security deposits, the eviction process, and maintenance and repairs.
http://www.pirg.org/calpirg/consumer/renters/index.html

Federal Rent Assistance -- U.S. Department of Housing and Urban Development Web site provides information about public housing and general rental issues.
http://www.hud.gov/renting/

People With Disabilities – is a U.S. Department of Housing and Urban Development Web page that collects information of interest to disabled persons from all over HUD's Web site.
http://www.hud.gov/offices/fheo/disabilities/index.cfm

U.C. Berkeley's Institute of Governmental Studies, California Local Codes and Charters – provides access to the codes and charters of many California cities and towns. (These local laws can be very helpful in landlord/tenant cases.)
http://igs.berkeley.edu/library/calcodes.html

Landlord/Tenant Research Guide – offers a list of books dealing with landlord/tenant issues posted by the San Francisco Law Library.
http://www.sfgov.org/site/sfll_page.asp?id=6513

Protection & Advocacy, Inc. – offers a list of publications that are relating to housing of interest to disabled persons.
http://www.pai-ca.org/issues/index.htm

If you are experiencing techical problems with the court's website, please contact the webmaster. Please note: if you have questions regarding your case and you email the webmaster, you will not receive a reponse back from the court.
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