To prove this type of action the owner of the real property must be able to show that (1) the occupant does not have the owner’s expressed or implied permission to occupy the rental unit; (2) the owner of the real property has been displaced from the real property; (3) lawful service of a 5 Day Notice to Quit and the occupant(s) continued possession of the rental property after the expiration of the notice; and (5) the fair daily rental value of the real property.
As with most Unlawful Detainer Actions this type of eviction is begun with the service of a 5 Day Notice to Quit that must be served personally or by posting the notice on a conspicuous place on the rental property and mailed to the occupant by regular or certified mail. If the person or person(s) name is not known to the owner of the real property a fictitious name like John or Jane Doe can be used.
After the expiration of the 5 Day Notice, a Forcible Detainer lawsuit must to be filed and served on the occupant in a manner authorized by California Law. There are no standard forms for this type of Unlawful Detainer complaint in California. The complaint must be prepared on 28 line pleading paper in a format that is acceptable by the court.
If the occupant of the rental property has been properly served and has not filed a response to the Complaint within five days of service the owner of the rental property should file a Request for Entry of Default/Default Judgment with the clerk of the court, which will be entered if the clerk of the court finds that the Summons and Complaint have been properly served.
If the occupant files a response to the complaint a Request for a Trial date must be filed with the court to obtain a trial date. Doing nothing after the response is filed will not get the owner of the real property a trial date.
The court has 10 to 20 days after the trial request has been filed to set the matter for trial and serve the Notice of Trial on the parties by mailing the Notice of Trial to the addresses that are on papers filed with the court.
Both parties must appear at trial to prove up their case. At the time of trial the owner must prove by testimony and/or documentary evidence that (1) he/she/it is the owner of the rental property; (2) the occupant of the rental property does not have the owner’s permission or consent to occupy the rental property; (3) the owner of the rental property was displaced from his/her/its right of possession of the rental property by the conduct of the occupant(s); (4) lawful service of the 5-Day Notice to Quit; and (5) the fair market daily rental value of the rental property (called holdover damages).
Once a judgment is obtained either by default or at trial a Writ of Possession must be applied for and issued by the court which is then sent to the Sheriff’s Department for processing.
The Sheriff’s Department will serve the Writ of Possession on the Occupant(s) and post a lockout notice on the front door advising the occupant(s) of the date and time the occupant(s) must vacate. If the occupant(s) fail to vacate when prior to the date and time of the expiration of the Notice to Vacate the Sheriff’s Department will return to the rental property to force the occupant(s) to vacate.
The Forcible Detainer action is not a simple process and requires an experienced Unlawful Detainer law firm to represent the owner of the rental property – from the preparation and service of the notice to obtaining the Judgment.
At Fast Eviction Service, help on any of the issues discussed in this article is simply a click or phone call away. Email email@example.com or call our office at (800) 686-8686 to discuss your questions for a free evaluation of your case.
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