Since a tenancy is a property interest, deprivation of this interest, i.e., eviction, requires due process of law. This means notice and an opportunity to be heard, which is accomplished by the Unlawful Detaner procedure under Californai Law.

Notice

Most all evictions in California depend on some initial notice demanding that the tenant do something or stop doing something or, in the alternative, vacate.

The most common reason for eviction is the failure of a tenant to pay rent. This sort of case is begun with a 3-day notice to pay the rent or vacate the property. The exact contents of the notice are covered at CCP Section 1161(2). The notice must include a demand for the precise amount due, with instructions on where to pay it, an unequivocal demand for possession if the rent is not paid within three days of service of the notice, the date of the notice and the signature of the landlord or an agent for the landlord.

Next to the non-payment of rent notice, the most frequently used one, in our experience, is the 30- or 60-day notice of termination of tenancy. These are used to terminate periodic tenancies, that is, those that have no fixed expiration date, but proceed from month-to-month usually, but sometimes week-to-week, etc., until either party decides to terminate it. If the tenant has resided on the premises for less than a year, his tenancy may be terminated on 30 days notice. If he has resided on the premises for a year or more, he must be given 60 days notice. In cases of subsidized housing a 90-day notice must be given. Because the termination is of a non-default nature, there is no forfeiture, and the only notice requirement, other than the formality of date and signature, is that there be an unequivocal expression of the intent to terminate and a demand for possession in the prescribed time.

It is not uncommon for a property that has been foreclosed to be found occupied, either by the foreclosed owner or by his tenant. This situation is covered by CCP Sec. 1161a and 1161b. However, recent federal law, "Protecting Tenants At Foreclosure Act" signed into law by President Obama on May 20, 2009, requires new owners, depending on the specific facts of the case, who purchased the property after foreclosure to assume any existing lease or require a 90-Day Notice to Quit, which must contain specific legal provisions in order to be valid.

Summons and Complaint

Upon expiration of whatever notice has been served, and if the tenant has failed to comply with it, the Unlawful Detainer, i.e., eviction proceeding, may start in Superior Court. This is accomplished by the landlord filing a document referred to as a Complaint, and having the clerk issue a summons.

Because an Unlawful Detainer is not a general civil action but a special proceeding, the content of the Complaint and the relief demanded are limited.

Service of the Summons and Complaint must be accomplished before any other steps may be taken. This is almost always accomplished by a registered process server.

Default

If your tenant is served with the Summons and Complaint and fails to respond to it within the time permitted by law, his default may be entered. A default precludes the tenant from participating in the proceeding and permits the clerk to enter a judgment for possession of the property at once. This judgment is separate from whatever judgment for money you are asking for, and is designed to restore the landlord to possession of the property as quickly as possible.

Defaults do not enter themselves. A default and clerk's judgment must be requested by the landlord. Uniformly, courts require the preparation and filing of a Judicial Council form titled Request for Entry of Default, and declarations under penalty of perjury describing the method and date of service of the Summons and Complaint.

Trial

Depending on which county we are discussing, landlords can expect about a third of the unlawful detainer proceedings filed there to be contested by the tenants they are trying to evict. In most of those cases, the tenant will file a document referred to as an Answer.

The purpose of all of this is usually to gain time in the hope of finding alternative lodging and gathering the money to do it. The defenses themselves are often manufactured of whole cloth. Few take the crime of perjury seriously anymore. Sometimes there is a kernel of truth to them. Popular defenses are breaches of the implied warranty of habitability, technical defects in the eviction notice, claims of improperly rejected rent tenders, and sometimes just a general denial of the allegations of the landlord's complaint. Retaliation is also a popular defense because it can be raised in the complete absence of physical evidence.

By interposing an Answer the tenant forces the landlord to prove his case to a judge in the formal setting of a trial. This is necessary because the judge has no way to decide who is right until both sides present their case.

Once the Answer is filed the court will set a trial date. As with a default, nothing will happen until the landlord makes the necessary request for trial setting, which, again, is prepared on a Judicial Council form. Once this request is filed, the trial must begin within 20 days. Typically the trial is to the judge, but occasionally tenants will seriously expect to be able to present their case to a jury. If this happens, the landlord should retain counsel at once.

Post-judgment proceedings

There are things that can be done by the tenant between the entry of judgment and his physical eviction to prolong the agony. Almost all of these consist of one of two things: 1. Applications to the judge for stays of eviction, and, 2. claims by third parties, often fictitious, that they have a right to possession of the rental unit. There are other things, such as applications to reinstate the tenancy on payment of all outstanding rent, that can be done but they are too rare to go into here.

Post judgment claims of rights to possession of the rental unit are less common but can be more troublesome. Such claims may be made by persons who were in possession of the rental unit at the time the complaint was filed but were not served with the summons and complaint. This type of problem usually arises when the landlord simply does not know the person is on the property or just mistakenly believes that only persons such as signatories to the rental agreement can be tenants who need be party to an eviction. The claim is made by filing at court or handing it to the sheriff when he comes to do the eviction.

The service of a Prejudgment Claim of Right to Possession, which we discussed in the context of the Summons and Complaint, short circuits all of this. Service of such a claim, even if it needs to be made constructively, puts all potential tenants on notice that they must file their claim and their responses to the complaint immediately, and the sheriff may ignore such claims after judgment is entered and the time has come for eviction.

Eviction

The physical eviction is the final step in the unlawful detainer litigation. The sheriff will go out to the premises and physically escort all persons on the property off, after certain legal procedures and paperwork are completed and the appropriate fee is paid.