- Commencing a California Eviction
- A Special Note During the Covid-19 Pandemic
- Bankruptcy and Eviction in California
Few experiences are more stressful than facing the loss of your home, especially when finances are strained. Unfortunately, it’s a situation too many in Los Angeles and around the state face each year. A 2019 report from Public Counsel and the UCLA School of Law Community Economic Development Clinic revealed that 505,924 eviction proceedings had been filed in Los Angeles County between 2010 and 2018.
That’s an average of more than 56,000 eviction filings per year, or 154 each day. That’s a lot of people being displaced from their homes. Unfortunately, the actual number is likely much higher. That’s because many tenants move out when served with an eviction notice. Since there’s no court filing associated with those cases, they’re not included in the eviction statistics.
Some of these evictions and pre-eviction departures likely could have been avoided. But, most people don’t know much about the eviction process. Court documents can be difficult to understand, and time to respond is limited. And, it’s all happening during a high-stress time when tenants may be more focused on finding alternate living arrangements and figuring out how to hold on to their belongings than untangling the legal process.
Here’s what you need to know about the California eviction process.
Commencing a California Eviction
California law does not permit “self-help” evictions. That means a landlord can’t just remove a tenant from the premises–they must go through the courts and get an order of eviction. Landlords are prohibited from putting the tenant’s belongings out on the street without a court order, but also from taking other actions intended to deprive the tenant of possession of the property. Some examples include:
- Changing the locks or bolting the door to keep the tenant from re-entering
- Turning off utilities to make the house or apartment unlivable
- Physically blocking the tenant from entering the premises or attempting to remove the tenant
- Altering the premises in a way that makes it unrealistic for the tenant to stay
Legal eviction is a multi-step process.
With a few exceptions, a landlord must serve the tenant with notice before filing an eviction. The type of notice required differs depending on the reason for the eviction. In some cases, the required notice period is just three days. These include:
Notice to Quit or Pay Rent
If the landlord claims the tenant has breached the lease agreement by failing to pay rent when due, the appropriate notice is a 3-Day Notice to Quit or Pay Rent. It’s important to note that under California law, the three-day period does not include Saturdays, Sundays, or court holidays. So, depending on when the notice is served, the actual time to take action before the landlord can file an eviction proceeding could be anywhere between three and six days.
The notice must be in writing, be properly served, and include certain specific information such as:
- The total of past-due rent claimed, which may include only rent, not late fees, damage claims, interest, or other monies the landlord may be owed. And, it may not include amounts due more than one year prior to the date of the notice, even if there is older unpaid rent.
- The dates the past-due rent covers
- Instructions for making payment, including when and where payment can be made and–if payment can be made by mail–the mailing address
The notice must also include identifying information such as the full name and address of the tenant and the address of the property.
Many tenants take the notice at face value and assume that their only options are to move out or to make full payment within the three days. But, that isn’t always true. The first line of defense should be to talk with the landlord. While the landlord isn’t required to accept less than full payment, it is often easier and less expensive for them to make a payment arrangement with the tenant than to proceed with the eviction. So, it’s worth a conversation to see whether you can come to a workable agreement.
Notice to Perform Covenants or Quit
The 3-Day Notice to Perform Covenants or Quit is used when the landlord claims that the tenant is in breach of the lease for some reason other than non-payment of rent. One example would be keeping a pet on the premises in violation of the lease. Like the notice to pay or quit, this notice advises the tenant that he or she has three days (not including weekends and holidays) to either fix the problem or move out.
The technical requirements for this notice are similar to the notice to pay rent, including name, address, information about the alleged breach of the lease, and notice to fix the problem or move out.
Notice to Quit
When the alleged problem is more serious, the landlord may serve a three-day notice that does not include a remedy. In this situation, the tenant’s options are generally to move out, attempt to negotiate with the landlord, or fight the eviction in court.
It’s important to note the proper service of a notice containing the necessary information is required before the landlord can file an eviction proceeding. If the notice wasn’t sufficient, you weren’t served, or the landlord filed before the required notice period expired, you may be able to get the case dismissed.
Service of Notice
The landlord has three options for serving any of the above notices on the tenant. These include:
- Giving the notice directly to the tenant,
- If the tenant is not at home, leaving the notice with either a competent member of the household or someone in charge at the tenant’s place of work–if this method is used, the landlord must also mail a copy of the notice
- If the tenant is not at home, by taping or nailing the notice to the door where it is easily visible–if this method is used, the landlord must also mail a copy of the notice
The landlord may personally deliver the notice, have an employee who is 18 or older deliver the notice, ask an adult friend or family member to deliver the notice, or hire a process service to serve the notice.
Filing the Complaint
If the three days pass and the tenant hasn’t either remedied the breach or reached an agreement with the landlord, the landlord can file an eviction complaint in court. The landlord won’t necessarily do this on the first day it’s permitted, but after the three day period has expired, the landlord is no longer required to accept payment or remedy of another type of breach. So, it’s important to act quickly when you receive a notice.
Once the complaint is filed, the landlord must once again make sure the tenant is served. The options for service are similar to the processes used for service of the original notice, but a bit stricter. The options are:
- Give the papers directly to the tenant or, if the tenant refuses to take the papers, tell the tenant he or she is being served and set the papers down close to the tenant
- If the tenant is not home, the papers can be given to a member of the household or person in charge at the tenant’s place of employment and followed up with mailing. However, this option is only available if attempts to serve the tenant directly at different times have failed.
- Posting and mailing is permitted only with permission of the court, and only after the other two alternatives have failed.
Responding to a Complaint for Eviction
The time to respond to an eviction complaint can be quite short, and may not be immediately obvious. The amount of time permitted depends on how the papers were served. The shortest time permitted is five days, not counting weekends and holidays. However, that time limit applies only when the tenant was served directly.
For other types of service, the time limit is 15 days, and the calculation is more complicated. The first 10 days are straight calendar days, including weekends and holidays. But, the last five days don’t include weekends or holidays.
The options for responding differ depending on the circumstances. If you’ve been served in an eviction case and want to fight the eviction, it is in your best interest to get legal advice as quickly as possible.
Some possible responses include:
- A motion to quash service, if the complaint wasn’t served as required. Quashing service generally won’t have any long-term impact on the case, but can require the landlord to re-serve the complaint, which may delay the proceedings.
- A demurrer, which argues that the complaint didn’t contain sufficient allegations to support an eviction. Demurrers must be answered and argued in court, so this type of filing can delay an eviction proceeding for a week or more–sometimes even a month–even if the tenant loses. Note, though, that there can be sanctions for filing pleadings without a good faith basis.
- An answer, which responds to the claims in the landlord’s complaint. This sample from the California courts walks you through how to fill out an answer form and what types of information you might offer in your defense.
If you don’t respond within the time allowed, the case will usually be decided against you. It’s usually a bad idea to let this happen, even if you are planning to move out. You may end up with a larger judgment against you, or miss an opportunity to make an agreement with the landlord that prevents entry of judgment. If you can’t afford a lawyer and aren’t sure how to proceed on your own, you can find useful information and possibly connect with a free legal services provider through Stay Housed Los Angeles.
A Special Note During the Covid-19 Pandemic
During the Covid-19 pandemic, special protections may apply, and you may have access to additional sources of assistance. As of this writing, California state protections against eviction are scheduled to end on January 31. However, these orders may be extended as the pandemic continues. Los Angeles County has extended it’s moratorium on residential evictions through February 28, 2021. And, the Centers for Disease Control and Prevention (CDC) order limiting residential evictions nationwide has been extended until March 31, 2021.
However, each of these protections requires some affirmative action on the part of the tenant. For instance, the CDC order requires the tenant to provide the landlord with a certification regarding inability to pay and efforts to make partial payments. To take advantage of the protection offered by the Los Angeles County order, the tenant must comply with the requirements of the statewide order with regard to any amounts due through January 31, 2021.
It’s also important to note that even if you do everything right, some landlords may attempt eviction. Don’t assume that you are safe because you completed and delivered the appropriate certification. If you receive an eviction notice, contact your landlord immediately and remind them that you are protected by the order and have submitted the necessary certifications. If you are served with notice of an eviction lawsuit, you must respond to the lawsuit to assert your rights under the orders.
Bankruptcy and Eviction in California
Acting promptly may avert a California eviction, if you have the funds to catch up the rent within the time allowed, or the landlord is willing to make a payment arrangement. Fighting the eviction in court may buy you time, and if you have valid defenses or the complaint was defective, you may even win the case. But, unfortunately, most residential eviction cases end in eviction.
In most situations, a consumer bankruptcy filing will temporarily halt an eviction based on non-payment of rent. In some cases, bankruptcy may even offer a long-term solution. However, getting the full advantage of bankruptcy requires quick action. If the court has already entered an eviction order, bankruptcy likely won’t help much. At that point, the eviction action is typically considered complete, and the landlord can proceed with removal from the premises. Bankruptcy also won’t stop an eviction on certain non-monetary grounds, such as criminal activity on the premises.
The Automatic Stay and Bankruptcy
In most bankruptcy cases, an automatic stay is entered as soon as the bankruptcy petition. The stay is a court order telling creditors that they must stop any collection activity for as long as the stay is in effect. That includes eviction proceedings. If a stay is in effect, the landlord can’t serve an eviction notice. The landlord can’t file an eviction lawsuit, even if notice has already been served. And, an eviction case pending in court will be frozen.
However, the stay offers only temporary protection. What happens next depends on which type of bankruptcy you file. Chapter 7 bankruptcy won’t provide a long-term solution for most renters, but a Chapter 13 repayment plan may allow the tenant to stay in the apartment and catch up past-due rent over time.
Your options depend on many variables, including whether you are entitled to an automatic stay, how much back rent you owe, whether you have regular income to catch up on payments over time, and whether you want to stay in the rental property or simply shed back rent. So, the best source of information about how bankruptcy may help you avoid eviction is an experienced Los Angeles bankruptcy attorney.
Eviction proceedings move quickly. If you wait too long to act, you may be cut off from options that could have kept you in your home. If you are facing eviction and want to learn more about how bankruptcy may provide a solution, schedule a free consultation with one of our experienced bankruptcy attorneys right now. Just call 877-439-9717 or fill out the contact form on this page to get started.
M. Erik Clark is the Managing Partner of Borowitz & Clark, LLP, a leading consumer bankruptcy law firm with offices located throughout Southern California. Mr. Clark is Board Certified in Consumer Bankruptcy by the American Board of Certification and a member of the State Bar in California, New York, and Connecticut. View his full profile here.