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Eviction Overview in California
Glossary for Eviction
Answer - Pieces of paper that admit or deny the allegation on the complaint and state defenses of why the defendant thinks he or she should win. The Answer can be on California Judicial Council Form .
Apply / Application - this is a method to ask the Court for something, it can be done on 24 hour-notice and filing the application papers. An application must be supported by a declaration of
Attorney Fees - Attorney Fees are the reasonable value of the time of the attorney to win the case at trial. If the lease agreement states that the prevailing party in a dispute over the lease is entitled to attorney’s fees then after trial, either party or both can motion the court to determine that they were the prevailing party and order the other to pay Attorney’s Fees. Note, this use of Attorney’s Fees is different from what any party may actually pay or compensate his or her attorney.
Civil Cover Sheet - a California Judicial Council Form that must be completed, signed, dated and filed with the Complaint and Summons to start an eviction lawsuit. The Civil Cover sheet must be on California Judicial Council Form .
Complaint - Pieces of paper that are formatted properly, signed, dated and sworn as true under penalty of perjury that allege facts sufficient to justify evicting a tenant. California Judicial Council Form can be used as form for the Complaint. Note however, that certain boxes that ask about service of the Notice are actually incorrect, and the form must be adapted to conform to the legal requirements of certain manners of service. The Complaint is a form of pleading.
Default - the act or status of the Court recognizing that the court has not accepted the required papers of a Defendant within the time frame that the Defendant was legally obligated to get the Court to accept those papers. A default generally means that the defaulted defendant cannot participate in the case, and will lose, unless the Court “sets aside the default.” Generally, the Court does set aside a default if the defendant requests it in sufficient time.
Deposition - is the process where an attorney asks an opposing party questions, and that opposing party is lawfully required to provide answers when the process occurs in front of a licensed reporter who makes a verbatim transcript of what is said. The answers given in a deposition are given under oath to tell the truth subject to the penalty of perjury and have the effect of testimony before a court.
Discovery - Discovery is the phase of litigation whereunder, the parties exchange written questions and answers, documents, and engage in sworn questions and answers in front of a licensed court reporter, who creates a verbatim transcript of the deposition.
Judgment - a Judgment is a piece of paper of pieces of paper than are signed and dated by the judge in the case and make the determination of who wins and who loses the case and what must happen next, based on that determination. In unlawful detainer, if the plaintiff landlord wins, the judgment may order the defendant tenant to pay money, will order that a writ of execution will issue, and will determine that the lease is terminated, all effectively allowing the plaintiff to get possession and force the defendant to leave. If the defendant wins, the judgment will state that the lease continues and may order the plaintiff landlord to pay money to the defendant tenant.
Mandatory Settlement Conference - Mandatory Settlement Conference or MSC for short is a process that is usually done with required in person attendance by both the landlord and tenant that takes place shortly before trial in eviction cases, at which a Court appointed person attempts to persuade the parties to agree to some written compromise rather than go to trial.
Motion - A motion is a procedure for a party to make a request of the Court.
Notice - the Notice refers to the specific paper that the landlord must deliver to the tenant to start any eviction case. The Notice must be perfect, because if the Notice is not perfect the Defendant can win the case based on a defect in the Notice.
Party - A Party to a case is usually a plaintiff, who is seeking a remedy from a lawsuit or a Defendant, who is a person or business entity from whom relief is sought by a plaintiff.
Prejudgment Claim of Right to Possession - this is a document on a California Judicial Council Form that if a landlord completes, files and causes to be served on a tenant in an eviction that allows the landlord to get possession against any person in an unlawful detainer. If a prejudgment claim of right to possession is not filed and served on the defendant, when the Sheriff goes to Execute the Writ of Possession, the Sheriff will only remove people named in the lawsuit, not others.
Plaintiff’s Mandatory Cover Sheet and Supplemental Allegations - is a document that must be completed, dated and signed by a landlord, sworn as true under penalty of perjury on California Judicial Council Form in order for the Court to file-stamp a Summons in Unlawful Detainer.
Pleadings - refer to all documents comprising the Complaint[s], any Demurrer[s] and any Answer[s].
Proof of Service - a Proof of Service is a document in which a person who is not a party to the case writes sentences that explain who was “served,” with “what documents,” “when the service occurred,” and by what manner, and then swears under oath, subject to the penalty of perjury that the statements on the proof of Service are true, with a signature. In Unlawful Detainer, a California Judicial Council Form Proof of Service of Summons - Unlawful Detainer on Form must be used for service of Summons and Complaint. For service of papers after the Summons, if by mail, the party can use California Judicial Council Form Proof of Service by Mail on , or, if agreed upon with opposing counsel, by email on California Judicial Council Form Proof of Electronic Service on CJC Form .
Remedy - A remedy is usually an action by a party that compensates an opposing party for a civil wrong. Generally a remedy is payment of money, called monetary damages, or an order that the losing party does or does not do something. In eviction, or Unlawful Detainer, the primary remedy is an order by the Court that the Sheriff of the County can remove people from the property that is the subject of the lawsuit.
Request to Set Trial - there is only one way to request trial in an eviction case, either party must complete, sign and date the Application for Trial on California Judicial Council Form .
Set Aside - Set Aside is an action that the Court does that undoes a prior action. The most typical context is that a Court can “Set Aside” a default of a defendant. A default of a defendant is when the defendant has failed to file the required papers responding to a complaint within the time limit and the plaintiff filed a default. Setting Aside means that the default is no longer present, and the defendant can participate in the case. Set Aside happens upon the Motion of the Party seeking to set aside the default. The Sacramento Law Library has a webpage explaining how to do a .
Stipulation - a Stipulation is a formal agreement between adversarial parties to some agreement.
Stipulation for Settlement and Judgment - a Stipulation for Entry of Judgment is a formal agreement between adversarial parties to some agreement. In eviction, this is usually this is an agreement for the tenant to move out on a date-certain, meaning by a specific time and date or earlier. The Stipulation for Entry of Judgment usually states that if the tenant does not move out by that date certain, then the landlord plaintiff can Apply, ex parte, with the Court for a judgment against the tenant in order to start the proceedings to get the Sheriff to remove the tenant.
Summons Unlawful Detainer - a Summons is generally a document, on a California Judicial Council Form that the plaintiff in a case completes and then causes to be filed with the Court. If the Court stamps the Summons, the plaintiff then can serve the tenant defendant. The service of a file-stamped Summons is the act that gives the Court the power over the defendant and the power to make orders than impact the defendant. If the defendant is not served with a Summons, the Court does not have power over that defendant.
Trial - Trial is the procedure by which the Court allows witnesses to provide testimony and authenticate documents for admission into evidence for the fact finder to determine questions of fact that must be answered and determined at the trial.
Written Instructions to the Sheriff - After a Judgment and a Writ of Execution is obtained, the winning plaintiff must then draft and deliver written instructions to the Sheriff that explain to the Sheriff details of the property and the tenancy to assist the Sheriff in recovering possession of the property.
Writ of Execution - is a paper completed by the plaintiff landlord in a California Eviction case that the landlord asks the Court to sign and stamp. A Writ of Possession can only be issued after a judgment, and it is a piece of paper that authorizes the Sheriff of the county where the real property is located to take possession of that real property. California Judicial Council Form for a Writ of Execution on Form can be used.
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