The eviction process
Part II – Default Judgment
PArt II – Default Judgment
eviction proceedings
In the unfortunate instances when an eviction lawsuit has to be filed, it must be filed in the California State County court where the rental property is located. But before doing so, a landlord should consider whether or not the tenant is a judgment-proof tenant, and if a lawsuit is the best course of action (see “Judgment-Proof Tenants“). To file, the landlord must fill out and file:
- Summons – Unlawful Detainer – Eviction (form SUM-130)
- Complaint – Unlawful Detainer (form UD-100)
- Civil Case Cover Sheet (form CM-010)
- Plaintiff’s Mandatory Cover Sheet and Supplemental Allegations – Unlawful Detainer (form UD-101)
Always check local court rules for additional filing requirements. In San Jose, CA, eviction lawsuits are filed at the Superior Court of California, County of Santa Clara County.
prejudgment right to possession
A complaint and summons must be served on each named tenant on the lease and anyone else who may have a right to possession not named on the lease. If a landlord is unsure if there are unknown people living on the premises, it is a good idea to also serve a Prejudgment Right to Possession notice (form CP-105) notice along with the complaint and summons. The Prejudgment Right to Possession notice will add 5 extra days for the tenant(s) to respond, but it will force anyone who may have a claim to make a claim at that time instead of waiting until late in the process and “gaming the system.”
service of process
The summons and complaint should be served (known as the “service of process”) on the tenant(s) by a Registered Process Server (RPS). Unlike service of a 3-day notice, the rules for service of process are strict (see, “Service of Process in Eviction Lawsuits“), and a professional service is recommended. The reason for use of a RPS is that service by a RPS carries a presumption of proper service. So, if this is an issue that is brought up in court, the tenant(s) will have the burden to prove improper service. In addition, if a Prejudgment Right to Possession notice is also served, it must be served by a RPS or the sheriff department. So, use of a RPS is recommended.
the 5-day wait
After the complaint and summons is served, the tenant will usually have only five days to respond (see, “Service of Process in Eviction Lawsuits“). The five days DO NOT include weekends and judicial holidays. For example, if the summons and complaint is served on a Thursday, Day 1 would be on Friday, Day 2 would be on Monday, Day 3 would be Tuesday, Day 4 would be Wednesday, and Day 5 would be on Thursday. So, the tenant would have to file a response by Day 5, on Thursday, or else lose a say in court.
default judgment
If after five days (or 10 days if a Prejudgment Right to Possession notice is also served) the tenant(s) has not responded to the summons and complaint, on Day 6 a Default Judgment by the Clerk can be entered in favor of the landlord. The Default Judgment by the Clerk will entitle the landlord to immediate possession of the property through a Writ of Possession. However, no money judgment can be issued at that time, because only the judge can issue monetary damages. A separate money judgment after the eviction had taken place must be requested. (It is possible to ask a judge to review the case instead of the clerk, but it would delay possession and the total money damages may not be fully known at that time. The dual judgment request is the proper procedure to follow to get immediate possession and full damages (only after the tenant(s) have vacated the property the full damages can be determined).) To get a Default Judgment by the Clerk, fill out and file:
- Proof of Service of Process (form POS-010)
- Verification by Landlord Regarding Rental Assistance – Unlawful Detainer (form UD-120)
- Request for Entry of Default (form CIV-100)
- Judgment-Unlawful Detainer (form UD-110)
- Notice of Entry of Judgment (form CIV-130)
- Writ of Possession (form EJ-130)