LEGAL OPINION ON UNLAWFUL DETAINER IN CALIFORNIA
An unlawful detainer is a lawsuit by a Landlord against a tenant to evict a tenant, which comes in after a notice to terminate the tenancy. A landlord does not need a reason to evict a tenant; just notice of the eviction when the lease expires suffices unless there exists restriction against this under the territory’s local ordinances, e.g., rent and eviction control. Still, to evict the tenant, the landlord must go to Court. The public may access eviction records for a period of seven years, and money judgments against a tenant may show up on their credit report.
You have the following options once an unlawful detainer is served on you, you may:
- Voluntarily leave the premises, and the landlord shall be compelled to dismiss the suit, but if you owe the landlord rent, they may sue you for the money owed in a small claims court;
- Fail to respond to the suit, which means you lose the suit, and a default judgment will be entered against you. The landlord will enlist the help of the Sheriff to evict you and proceed to enforce any money judgment against you;
- Respond to the suit through e.g. an Answer, Demurrer, or Motion to Quash. In California, a tenant who has been personally served with an Unlawful Detainer has only five days to respond; or
- Try to amicably settle the matter with the landlord.
If the matter goes to trial, you shall have a mandatory settlement conference to try and resolve the issue before the trial. The trial is set within twenty days. If an agreement is reached, you and the landlord shall sign a settlement agreement, and once you comply with the settlement order, the suit will be dismissed by the landlord. If a settlement was not reached, you might enter into further negotiations in view of reaching a settlement before the trial date. If no agreement is reached as at the trial date, then the trial, generally lasting a day and which may or may not have a jury, will proceed.
If a judgment is entered against you, the landlord shall receive a Writ of Possession that will allow the Sherriff to evict you after giving you a five-day notice to vacate at the premises. If you cannot evict at this point, you may pursue a Stay of Eviction from the Court that allows the tenant to stay on the premises for up to forty more days, but the tenant must pay in advance for every day they continue remaining on the premises. Depending on your lease terms, the landlord may be entitled to recover attorney fees from you if he wins the case against you.
DOES YOUR PENDING RENTAL ASSISTANCE APPLICATION WITH THE STATE OF CA INVALIDATE THE UNLAWFUL RETAINER?
The eviction moratorium in California/ State Assembly Bill (AB) 832, signed into law June 28, 2021 being a state eviction ban, stated that tenants could not be evicted for rent arrears between March 1 and August 31, 2020 which converted to consumer debt; tenants who had not paid one or more months of rent by July 1, 2021 should have received a notice from the landlord and thereafter given their landlord a COVID-19-related financial distress Declaration within 15 days of receiving notice. Moreover, by paying at least 25% of their rent between September 1, 2020 and September 30, 2021, tenants were also protected from eviction.
However, tenants still need to pay the total rent due between March 2020 and September 2021, which arrears may be recovered in a small claims court starting November 1, 2021. This eviction moratorium, however ended after September 30, 2021.
From November 1, 2021, the landlord must provide proof that an application for emergency rental assistance was submitted and denied, or that an application was submitted and after twenty days no notification was received that the tenant completed their portion of the application, and the tenant has not otherwise informed the landlord of a submitted application before their unlawful detainer is processed by the Superior Court. As long as the Sheriff has not yet initiated a lock-out, tenants may still submit proof of rental assistance approval to the Court, and the Court will decide within 5-10 days whether the rent can be paid and an eviction avoided.
It may be a defense in Court if being eligible, you applied for rent relief whether your application is approved or pending, but you must show proof of such application in Court, i.e., the email confirming receipt of your completed application and case number. It is also a defense in Court against the eviction if you can prove that you have paid at least 25% of your rent between September 2020 and September 2021.
Your pending rental assistance application with the state of CA does not invalidate the unlawful retainer; it only acts as a defense that you may use in Court against your eviction.
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