This article was posted on Wednesday, Jul 01, 2015

Unlawful Detainer is the name of the action filed by an owner or landlord to gain possession of property. This is usually done after a breach in a rental agreement; the most common of which is non-payment of rent. An Unlawful Detainer or (UD) action can also be filed when the landlord/owner wants to retake possession of their property for other legally recognized reasons and the occupant fails to comply. In almost all of these actions, the landlord must serve a legal notice (or demand) and the tenant has a specific time within which to comply before legal action is taken.

The Notice

The importance of the notice or demand cannot be overemphasized. If the notice is not legally sufficient in its
wording or conformance with the law, the tenant can refuse to comply and still prevail in the lawsuit. Always
seek legal advice before serving or going forward with any notice to avoid lost time and money with a UD action.

When the time has elapsed for the performance solicited by the notice – and usually this is the fourth day after a Three-Day Notice to Pay Rent or Quit – the landlord may file a lawsuit known as the Unlawful Detainer. The UD action is asking the California State Superior Court to grant possession of the property to the landlord.

The Lawsuit

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Prevailing allows the landlord to get a “Writ of Possession” or an order allowing them to hire a Sheriff to “lock-out” the tenant. The landlord must have a court order to hire the sheriff to restore possession to them. There is usually an accompanying second order for money owed which can include legal fees and costs of the lawsuit.

When the UD lawsuit is filed with the court, the tenant is served with a summons and complaint, as with any other lawsuit. The time to respond to an Unlawful Detainer is only five days, which is significantly less time than allowed any other type of legal action. If the defendant (tenant) fails to respond (or answer) the lawsuit, the judgment will be entered by the Court Clerk and the orders for possession and money owed will not require a trial. Most tenants will answer the lawsuit and this opposition mandates the decision of a judge. Therefore, the landlord (Plaintiff) must file a request for a trial to be held by the Court.

The Trial

Please be advised that many other issues can arise and the simplicity of the actions leading up to an Unlawful Detainer trial have been greatly simplified here. Each of the preceding steps, if taken without professional legal assistance has possible pitfalls, if not outright disastrous outcomes. The steps have been summarized here so that the experience of the trial can be addressed. The preceding steps may have all been handled by an attorney, but the trial is the place where the landlord or competent manager needs to participate.

When the court receives the Plaintiff’s request for a trial, it will set a date, time and place. The information is sent out to both parties, or if either is represented by counsel, to their respective attorneys. The attorney will immediately notify the client so that they can arrange to be present. The owner of the property may not always be the best witness. If the property has been managed by a third party, the person with the greatest knowledge of the circumstances of the tenancy is the best person to testify as to the facts of the case and the alleged breach. The breach is only “alleged” at this time and it is up to the witness, either assisted by counsel or struggling by themselves to demonstrate the necessary facts to win, thereby getting an order for money and possession.

Detainer trial, the attorney assists the plaintiff, but the actual facts are put forward by the witness, as the attorney has no personal knowledge of the case.

This may sound difficult, but usually the facts are far simpler than the Plaintiff wants to make them and the task of the attorney is to keep things simple and on point. (E.g. If there is a ‘no pet’ clause in the lease and the tenant keeps 25 dogs, it is completely irrelevant if the cause of action is a 3-day notice for non-payment of rent.) Often a client comes with pictures and all types of paperwork, which are useless in the trial, and fails to bring a ledger to demonstrate to the court that the amount of rent demanded is accurate.

The plaintiff goes first in the UD Trial. This is because they have the ‘burden of proof’ to show that the allegations of their complaint are true.

The attorney will assist the client in putting the complaint into evidence. This is done by first showing that the witness is the appropriate party. They are the owner or manager with knowledge of the facts of the case and can testify as to the breach of the agreement by the tenant. Keep in mind that while any adult with knowledge of the facts can be the witness at court, the owner of the property is the only one who has standing to file the lawsuit. If a manager is handling the eviction, it must still be filed under the name of the owner. Similarly, if the owner is a trust or corporation, the case must be pled in that name. If there is any confusion as to the proper Plaintiff the name on the deed to the property is the appropriate person or entity. If the owner fails to sue under the proper name, most assuredly, the defendant will raise the issue and the case can be dismissed, regardless of the correctness of the action.

After the Plaintiff testifies as to the allegations of the complaint and explains to the court that the lawsuit was necessary and that the law was properly followed in its undertaking, it is the Defendant’s turn to tell the court why the lawsuit fails and the owner should not have the property returned to them. The plaintiff will probably be hearing, “Blah, blah, blah….I should live free. Blah, blah … poor me.  Blah, blah …evil landlord, etc.” However, the attorney and the judge may be hearing something different. They are listening for what are called, `affirmative defenses’. These are the possible reasons that you may not prevail, or win, your lawsuit. Often a Plaintiff asks, “How can the judge allow the tenant to win when they haven’t paid rent?” The answers to that question are too voluminous to recite here. A few require some law school. Needless to say “common sense” is not among them.

After the testimony of the defendant, the Plaintiff may present additional testimony as rebuttal evidence to the defenses raised by the defendant. They can also cross-examine the Defendant. Usually, the entire process will take less than 10 minutes, so it is imperative that the lawsuit be presented concisely and without any irrelevant side tracking.

Most judges will rule from the bench and both parties instantly know the outcome of the case. A few take the case “under submission” but even these cases have usually been decided by the judge and the court is simply seeking to ensure that both parties leave peacefully and without incident in the hallways or parking lot. Sometimes it is wise for one party or another to wait for a few minutes before leaving the courthouse, so that tempers have a chance to settle.

This article has attempted to briefly outline what occurs at trial. To be properly prepared for trial is important and can be addressed more specifically in each particular case. The answer filed by the Defendant clearly sets out the points of contention to be raised as opposition to the successful conclusion of the lawsuit. The well prepared litigant will not have any surprises and will prevail. Make sure the well-prepared litigant is you. 

Leslie Born is another managing Attorney for Fast Eviction Law Group. She attended school at University of Riverside and received her Juris Doctor from California Southern Law School. Ms. Born was admitted to the California State Bar in 1998 and is licensed to practice before all state and federal courts in California.

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