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Resources - Landlord

State of California

TERMINATIONS AND EVICTIONS

COVID-19 RENTAL RELIEF UPDATE: On February 9, 2022, the Governor signed into law SB
115 to extend the availability of financial assistance provided by the Tenant Relief Act to protects
tenants and landlords impacted by the COVID-19 pandemic. For tenants who were unable to pay their
rent between March 1, 2020 through September 30, 2021 due to financial distress arising from or
related to COVID-19, the Act provided a moratorium on evictions during that time period provided
the tenants timely returned to their landlords a signed declaration of COVID-19-Related Financial
Distress.362 For tenants and landlords, the Act provided financial assistance for unpaid rent and
utilities from April 1, 2020 to March 31, 2022.363

In addition to the Tenant Relief Act, tenants and landlords who experienced financial hardships due
to COVID- 19 may also find assistance provided by their local jurisdictions. For more information
about the availability of local relief and the Tenant Relief Act, please go to https://housing.ca.gov/.

On October 17, 2022, Governor Newsom announced that the COVID-19 State of Emergency will
expire effective February 28, 2023. While state processes/procedures will return to their pre-state of
emergency status, local jurisdictions may have their own states of emergency, which may or may
continue beyond February 23, 2023.

Although the Tenant Relief Act influences discussions in this chapter, this chapter is written with a
focus on the law governing tenancy terminations and tenant evictions occurring before March 1, 2020
and after September 30, 2021.

WHEN CAN A LANDLORD TERMINATE A TENANCY?

In 2019, the California Legislature passed, and the Governor signed, the Tenant Protection Act of
2019 (the “Tenant Protection Act”). The Tenant Protection Act imposes statewide rent control and
just cause eviction requirements. Landlords of residential real property covered by the Tenant
Protection Act must notify their tenants of the act’s Protections.364 For rental agreements in effect
before July 1, 2020, the landlord must provide their tenants with written notice by August 1, 2020.
For rental agreements entered into or renewed after July 1, 2020, landlords must include the notice as
an addendum to the lease or provide the notice to the tenant and obtain the tenant’s signature
acknowledging receipt. The notice must contain the following language:

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“California law limits the amount your rent can be increased. See Section 1947.12 of the Civil Code for
more information. California law also provides that after all of the tenants have continuously and
lawfully occupied the property for 12 months or more or at least one of the tenants has continuously
and lawfully occupied the property for 24 months or more, a landlord must provide a statement of
cause in any notice to terminate a tenancy. See Section 1946.2 of the Civil Code for more
information.”

The sections of the Tenant Protection Act relevant to just cause evictions are summarized below.
The landlord’s ability to terminate the tenancy and evict the tenant is based on whether or not the
rental unit is subject to local just cause for eviction laws or the State of California’s Tenant Protection
Act. If a rental unit is subject to both local and state just cause for eviction laws, the Tenant Protection
Act’s just cause protections do not apply if the local ordinance was adopted on or before September 1,
2019, or it was adopted or amended after September 1, 2019 and provides stronger protections to the
tenant.365 The Tenant Protection Act’s just cause protections apply statewide and cover rental units
where the tenant has resided at the unit for more than 12 months or 24 months if an additional adult
tenant was added to the rental agreement less than 12 months ago.366 Certain types of housing units
are exempt from the Tenant Protection Act, including:

transient and tourist hotel occupancy;

housing accommodations in a nonprofit hospital, religious facility, extended care facility or licensed
residential care facility for the elderly;

dormitories owned and operated by an institution of higher education or a school for grades
kindergarten through 12th grade;

housing accommodations in which the tenant shares bedroom or kitchen facilities with the owner who
maintains their principal residence at the property;

single-family owner-occupied residences;

a duplex in which the owner occupied one of the units as the owner’s principal place of residence at
the beginning of the tenancy and continues to occupy that unit;

housing that has been issued a certificate of occupancy within the previous 15 years; or

residential real property that is alienable separate from the title to any other dwelling unit provided
that the landlord has notified the tenants that the rental unit is exempt from the Tenant Protection
Act.367

If the Tenant Protection Act applies, then the landlord cannot terminate the tenancy or evict the
tenant without just cause. The Tenant Protection Act defines just cause as either “At-fault just cause”

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or “No-fault just cause.”368 At-fault just cause includes: failure to pay part or all of the rent; a breach
of a material term of the rental agreement; engaging in criminal activity or committing nuisance or
waste at the rental unit; the tenant’s refusal to execute a written extension or renewal of the rental
agreement with the same or similar provisions as the original agreement after the landlord’s written
request or demand; assigning or subletting the rental unit in violation of the rental agreement; the
tenant’s refusal to permit the landlord to enter the rental unit as required by law or the terms of the
rental agreement; using the rental unit for an unlawful purpose; failure to vacate when the tenant’s
employment with the landlord terminates; and failure to deliver possession of the rental unit to the
landlord after providing the landlord with written notice of tenant’s intent to do so.369 No-fault just
cause includes: landlord’s intent to occupy the rental unit for him/herself or his/her spouse, domestic
partner, children, grandchildren, parents, or grandparents if the tenant agrees in writing to the
termination or the rental agreement permits the landlord to terminate under these circumstances;
withdrawal of the rental unit from the rental market; an order by a court or government agency for
the tenant to vacate the rental unit due to habitability issues; or landlord’s intent to demolish or
substantially remodel the rental unit.370

If the landlord is relying on at-fault just cause as the basis to terminate the tenancy and evict the
tenant, then the landlord must provide the tenant with an opportunity to correct the violation if the
violation is curable.371 In such cases, the landlord must give the tenant notice of the violation and an
opportunity to cure or correct it. Only if the tenant does not cure or correct the violation within the
timeframe set forth in the notice may the landlord serve a three-day notice to quit without an
opportunity to cure to terminate the tenancy.372

If the landlord is relying on no-fault just cause as the basis to terminate the tenancy and evict the
tenant, then the landlord must provide the tenant with relocation assistance irrespective of the
tenant’s income.373 The relocation assistance is an amount equal to one month of the tenant’s rent
that was in effect when the owner issued the notice to terminate the tenancy and, at the landlord’s
option, the landlord may pay this amount directly to the tenant or waive the tenant’s obligation to pay
their final month’s rent. The landlord’s termination notice must notify the tenant that the landlord is
terminating the tenancy based on no-fault just cause and inform the tenant of the landlord’s election
between paying relocation assistance to the tenant or waiving the tenant’s final month rent. If the
tenant fails to move out and return possession of the rental unit back to the landlord within the
timeframe set forth in the termination notice, the landlord may recover the amount of relocation
assistance paid to the tenant as damages in an action to recover possession.374

Separate and apart from the Tenant Protection Act, landlords are prohibited from evicting a tenant
(or refusing to renew a tenant’s lease) based on acts of domestic violence, sexual assault, stalking,
human trafficking, elder abuse, or dependent adult abuse committed against the tenant where the

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tenant (1) has obtained a restraining order or police report that is not older than 180 days and (2)
does not live with the abuser.375 The landlord may evict the perpetrator of the acts, but not the victim,
under California law.

If the rental unit is not protected by just cause eviction protections, a landlord can terminate (end) a
periodic tenancy by giving the tenant advance written notice of 30 days, 60 days, or, in some
instances, 90 days.

If the rental unit is covered either by a local or state just cause eviction law and the landlord has
provided the tenant with a notice to cure a violation as discussed above, the tenant must cure the
violation within the timeframe set forth in the notice. If the tenant fails to cure the violation, the
landlord may serve a three-day notice to quit without providing the tenant an opportunity to cure for
rental units covered by the Tenant Protection Act. Within three days of the date that the landlord
serves the notice to quit, the tenant must move out of the rental unit and return possession of it back
to the landlord or face possible eviction by the landlord. If the rental unit Is not covered either by a
local or state just cause eviction law and the landlord has given the tenant a 30-day, 60-day, or 90-day
notice, the tenant must move out of the rental unit and return possession of It back to the landlord
within the timeframes set forth in the notice or face possible eviction by the landlord. If the landlord
wishes to proceed with evicting the tenant then the landlord must file with the Superior Court in the
county where the property is located an unlawful detainer complaint, obtain from the court a
summons, and serve the summons along with a copy of the court-filed complaint on the tenant.

WRITTEN NOTICES OF TERMINATION

30-day, 60-day, or 90-day notice

A landlord who wants to terminate (end) a periodic tenancy can do so by properly serving a written
30-day, 60-day, or, in certain instances, 90-day, notice on the tenant

How to respond to a 30-day, 60-day or 90-day notice

If your rental unit is not covered by local or state just cause for eviction requirements and the landlord
has properly served you with a notice to terminate the tenancy you may either prepare to move out or
try to make arrangements with the landlord to remain past the deadline in the notice. If you want to
continue to occupy the rental unit, ask the landlord what you need to do to make that possible. Most
landlords will provide you with an explanation although not required to do so unless the rental unit is
covered by a local or state just cause for eviction requirement. If the landlord will permit you to stay,
you should memorialize the agreement in writing, retain a signed copy for your records, and the
landlord should withdraw their notice to terminate in writing.

If the reason the landlord has given for terminating your tenancy is an act of domestic violence, sexual

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assault, human trafficking, stalking or elder/dependent abuse committed against you, explain that to
the landlord. For instance, if there was a loud argument and broken window that disturbed other
tenants, and the cause of it was an act of domestic violence, the tenant should not have to leave if they
take steps to remove the abuser and do not allow the abuser to return to the property. If you live in a
federally assisted property covered by the Violence Against Women Act, survivors of domestic
violence, dating violence, sexual assault, and stalking are protected from eviction for reasons based on
the abuse. Federally assisted landlords or public housing authorities (where appropriate) are required
to provide a notice outlining VAWA rights when a household is being evicted, as well as a self-
certification form.376 Survivors can use that form to demonstrate abuse occurred and seek VAWA
protections. A lawyer, legal aid organization or tenant advocate can help you determine if VAWA
applies in your case.

If the landlord and you are unable to reach agreement on you remaining past the deadline set forth in
the notice to terminate, then you will be required to move out and must do so by the end of the time
period set forth in the notice. If the last day of the landlord’s notice is more than 30-days in the future
you can choose to give your own 30- day notice that will expire before the landlord’s notice if you
desire to move out before the deadline set forth in the landlord’s notice to terminate. Just be certain
that you can actually move according to your own notice, because failing to do so could subject you to
a court eviction action. When you move out, take all of your personal belongings with you, and leave
the rental unit at least as clean as when you rented it. This will help with the refund of your security
deposit (see “Refund of Security Deposits”).

If you have not moved at the end of the notice period, you will be unlawfully occupying the rental unit
after that day, and the landlord can file an unlawful detainer (eviction) lawsuit to evict you.

If you believe that the landlord has acted unlawfully in giving you the notice, or that you have a valid
defense to an unlawful detainer lawsuit, you should consult with a lawyer, legal aid organization,
tenant advocate, or housing clinic (see “Getting Help From a Third Party,”).

Three-day notice

Prior to giving the tenant a three-day pay or quit notice, for rental units covered by local or state just
cause eviction requirements, including the Tenant Protection Act, the landlord must give a tenant an
opportunity to cure or correct any violations presuming the violations can be cured or corrected. Only
after the tenant fails to cure or correct the violations within the timeframes set forth in the notice may
a landlord give the tenant a three-day notice to quit without an opportunity to cure. For rental units
not covered by local or state just cause eviction requirements, a landlord may give a tenant a three-
day notice either to pay or quit or cure or quit if the tenant has done, among other things, any of the
acts specified above.377 As stated above, landlords are prohibited from evicting a tenant based on acts

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of domestic violence, sexual assault, stalking, human trafficking, elder abuse, or dependent adult
abuse committed against the tenant where the tenant (1) has obtained a restraining order or police
report that is not older than 180 days and (2) does not live with the abuser. 378 The landlord may evict
the perpetrator of the acts, but not the victim, under California law. If the tenant lives in a property
covered by the Violence Against Women Act (as discussed above), the housing provider or public
housing authority (where appropriate) must ensure that the tenant receives a notice outlining VAWA
rights when a household is given the three-day notice, as well as a VAWA self-certification form.379

If the landlord gives the tenant a three-day notice because the tenant has not paid the rent, the notice
must accurately state the amount of rent that is due. In addition, the notice must state:

The name, address and telephone number of the person to whom the rent must be paid.

If payment may be made in person, the usual days and hours that the person is available to receive the
rent payment. If the address does not accept personal deliveries, then you can mail the rent to the
owner at the name and address stated in the three-day notice. If you can show proof that you mailed
the rent to the stated name and address (for example, a receipt for certified mail), the law assumes
that the landlord received the rent payment on the date that the payment was mailed.

Where the notice does not require payment in person, the notice may state the name, street address
and account number of the financial institution where the rent payment may be made (if the
institution is within five miles of the unit). If an electronic fund transfer procedure was previously
established for paying rent, payment may be made using that procedure.380

With some exceptions, the landlord cannot require that the tenant pay the past-due rent in cash or by
electronic funds transfer without offering other options.

If the three-day notice is based on a reason other than non-payment of rent, the notice must either
describe the tenant’s violation of the rental agreement, or describe the tenant’s other improper
conduct. The three-day notice must be properly served on the tenant.

Depending on the type of violation, the three-day notice demands either (1) that the tenant correct the
violation or leave the rental unit (quit) or (2) that the tenant leave the rental unit (quit) because the
law deems the violation “non-curable”. For curable violations, the notice must be clearly written in the
alternative (i.e. pay or quit; perform a covenant of the agreement or quit). If the violation involves
something that the tenant can correct (for example, the tenant has not paid the rent, or the tenant has
a pet but the rental agreement does not permit pets), the notice must give the tenant the option to
correct the violation.

Most violations can be corrected, such as failing to pay rent. In these situations, the three-day notice
must give the tenant the option to correct the violation. However, the other acts cannot be corrected,

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and the three-day notice can simply order the tenant to leave at the end of the three days.

If the violation is correctable, it is important to cure the violation within three court days of receiving
the three-day notice and keep proof that you have done so. If you pay the rent that is due or correct a
correctable violation of the rental agreement during the three-day notice period, the tenancy
continues and the landlord cannot legally evict you.381 Please note that the landlord is not required to
accept partial rent payment.

The time period covered in the three-day notice to pay or quit is important. If you attempt to pay all
the past-due rent demanded after the three-day period expires, the landlord either can refuse to
accept the payment and file a lawsuit to evict you or accept the rent payment. If the landlord accepts
the rent, the landlord waives (gives up) the right to evict you based on late payment of rent.382

How to respond to a three-day notice

Suppose that your landlord properly serves you with a three-day notice because you have not paid the
rent. You must either pay the full amount of rent that is due or vacate (leave) the rental unit by the
end of the third court day, unless you have a legal basis for not paying rent or the amount of rent that
the landlord is attempting to charge you is incorrect, either because you have been overcharged or
because there are bad conditions in your unit, such as conditions that your landlord has failed to
repair. You might see if the landlord will accept a partial payment and/or give some additional time to
“cure” the non-payment. If you get such an agreement be sure to get it in writing with the landlord’s
signature. Your failure to later pay and/or quit as agreed will likely still be grounds for the landlord to
begin an eviction action at court. Remember the landlord is not obligated to make any such
agreement, however they may see it as a more practical resolution than having to actually evict you.

If you decide to pay the rent that is due, it is recommended that you call the landlord or the landlord’s
agent immediately. Tell the landlord or landlord's agent that you intend to pay the amount demanded
in the notice (if it is correct) and arrange for a time and location where you can deliver the payment to
the landlord or agent. You must pay the rent by the end of the third day. You should pay the unpaid
rent by cashier’s check, money order, or cash (if allowed by the rental agreement). Whatever the form
of payment, be sure to get a receipt signed by the landlord or agent that shows the date and the
amount of the payment. If the landlord does not answer your call, you still only have three days to
mail or deliver the payment to the address listed in the notice.

With some exceptions provided by state law, the landlord cannot require that you pay the unpaid rent
in cash or by electronic funds transfer without offering other options.

If the amount of rent demanded is not correct, it is recommended that you discuss this with the
landlord or landlord's agent immediately and offer to pay the amount that is actually due. Make this

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offer orally and in writing and keep a copy of the written offer. The landlord’s notice is not legally
effective if it demands more rent than is actually due, or if it includes any charges other than for past-
due rent (for example, late charges, unpaid utility charges, dishonored check fees, or interest). 383

If the amount of rent demanded is correct and does not include any other impermissible charges, and
if you decide not to pay, then you must move out or remain in your rental unit and defend against the
eviction lawsuit.

If you stay beyond the three court days without paying the rent that is properly due, you will be
occupying the rental unit unlawfully. The landlord then has a single, powerful remedy: a court action
(called an “unlawful detainer [eviction] lawsuit” ) to evict you and obtain a judgment for the unpaid
rent, and possibly other amounts, such as court costs, attorney’s fees and “holdover” rent damages.

If the three-day notice is based on something other than failure to pay rent, the notice will state
whether you can correct the problem and remain in the rental unit. If the problem can be corrected
and you want to stay in the rental unit, you must correct the problem by the end of the third court
day. You should retain records substantiating the repairs or corrections for your records. Once you
have corrected the problem, you should promptly notify the landlord or the property manager.

If you believe that the landlord has acted unlawfully in giving you a three-day notice, or that you have
a valid defense to an unlawful detainer lawsuit, you should consult with a lawyer, legal aid
organization, tenant-landlord program, or housing clinic (see “Getting Help From a Third Party,”).

How to count the three days

For 3-day notices with an opportunity to cure, begin counting the three days on the first day that is
not a weekend or court holiday after the day the notice was served. Continue counting all days that are
not weekends or court holidays and stop on the third day. That is the day by which you must pay
unpaid rent in a notice to pay or quit or cure the violation in a notice to cure or quit. For example if
the notice is served on the Friday before Labor Day, do not count Saturday, Sunday or Monday
because these days are weekends or court holidays. Day one will be Tuesday, day two will be
Wednesday and day three will be Thursday.385 For non-curable 3-day notices the counting is
different. Day one is the day following the service, no matter if that day is a weekend or a court
holiday. Only if the third day falls on a weekend or court holiday will you get until the next day that is
not a weekend or court holiday to quit (see the next section for a discussion of service of the notice
and the beginning of the notice period).386

PROPER SERVICE OF TERMINATION NOTICES

A landlord’s three-day, 30-day, 60-day, or 90-day notice to a tenant must be “served” properly to be
legally effective. The terms “serve” and “service” refer to procedures required by the law to give a

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tenant notice that the landlord seeks to end their tenancy and recover possession of the rental unit.
These procedures are designed to increase the likelihood that the person to whom notice is given
actually receives the notice.

A landlord can serve a three-day eviction notice on the tenant in one of three ways: by personal
service, by substituted service, or by posting and mailing. The landlord, the landlord’s agent, or
anyone over 18 can serve a notice on a tenant.

Personal service - To serve you personally, the person serving the notice must hand you the notice
(or leave it with you if you refuse to take it).387

Substituted service on another person - If the landlord cannot find you at home, the landlord
should try to serve you personally at work. If the landlord cannot find you at home or at work, the
landlord can use “substituted service” instead of serving you personally.

To comply with the rules on substituted service, the person serving the notice must leave the notice
with a person of “suitable age and discretion” at your home or work and also mail a copy of the notice
to you at home.388 A person of suitable age and discretion normally would be an adult at your home
or workplace, or a teenage member of your household.

Service of the notice is legally complete when both of these steps have been completed. The three-day
period begins no sooner than the day after both steps have been completed, but it could begin several
days later (see “How to count the three days” above).

Posting and mailing - If the landlord cannot serve the notice to you personally or by substituted
service, the notice can be served by taping or tacking a copy to the rental unit in a conspicuous place
(such as the front door of the rental unit) and by mailing another copy to you at the rental unit’s
address.389 This service method is commonly called “posting and mailing” or “nailing and mailing.”

Service of the notice is not complete until both the notice has been posted and the copy of the notice
has been mailed. The three-day period begins on the later of the day on which the notice was posted
or mailed, but it could begin several days later (see “How to count the three days” above).390

A landlord can use any of these methods to serve a 30-day, 60-day or 90-day notice to terminate a
tenancy on a tenant, or they can send the notice to the tenant by certified or registered mail with
return receipt requested.391 For these notices, the timeframes begin on the day when service is made
and continue for the number of days stated in the notice. If the last day falls on a weekend or court
holiday, that deadline rolls over to the next day that is not a weekend or court holiday.

THE EVICTION PROCESS (UNLAWFUL DETAINER LAWSUIT)

COVID -19 EVICTION MORATORIUM UPDATE: On February 9, 2022, the Governor signed

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into law SB 115 to extend the availability of financial assistance provided by the Tenant Relief Act to
protect tenants and landlords impacted by the COVID-19 pandemic. For tenants who were unable to
pay their rent between March 1, 2020 through September 30, 2021 due to financial distress arising
from or related to COVID-19, the Act provided a moratorium on evictions during that time period
provided the tenants timely returned to their landlords a signed declaration of COVID-19-Related
Financial Distress.392 For tenants and landlords, the Act provided financial assistance for unpaid rent
and utilities from April 1, 2020 to March 31, 2022.393

In addition to the Tenant Relief Act, tenants and landlords who experienced financial hardships due
to COVID- 19 may also find assistance provided by their local jurisdictions. For more information
about the availability of local relief and the Tenant Relief Act, please go to https://housing.ca.gov/.

Although the Tenant Relief Act influences discussions in this chapter, this chapter is written with a
focus on the law governing tenancy terminations and tenant evictions occurring before March 1, 2020
and after September 30, 2021.

Overview of the eviction process

If the tenant does not voluntarily move out after the landlord has properly given the required notice to
the tenant, the landlord can begin the court eviction process. In order to evict the tenant, the landlord
must file an unlawful detainer lawsuit in Superior Court in the county where the rental unit is located
and then properly serve you with a summons and a copy of the unlawful detainer complaint. In
general, proper service requires that someone personally hand you the summons and complaint.396
There are circumstances where they can be handed to someone else, but in that instance you will be
given more days in which to respond.397 In certain instances a court may allow a landlord to serve you
by posting copies at the rental unit and mailing copies to you via certified mail.398

In an eviction lawsuit, the landlord is called the “plaintiff” and the tenant is called the “defendant.”

Laws designed to stop drug dealing399 and unlawful use, manufacture, or possession of weapons and
ammunition,400 permit a city attorney or prosecutor in selected jurisdictions401 to file an unlawful
detainer action against a tenant based on an arrest report (or other action or report by law
enforcement or regulatory agencies) if the landlord fails to evict the tenant after 30 days' notice from
the city. The tenant must be notified of the nature of the action and possible defenses.

An unlawful detainer lawsuit is a “summary” court procedure. This means that the court action moves
forward very quickly, and that the time given the tenant to respond during the lawsuit is very short.
For example, in most unlawful detainer cases, the tenant has only five court days (i.e., days that are
not Saturdays, Sundays, or judicial holidays) to file a written response to the lawsuit after being

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properly served with a copy of the landlord’s summons and complaint.402 Normally, a date for a trial
in front of a judge or jury will be set within 20 days after the tenant or the landlord files a request to
set the case for trial.403 These time periods are substantially shorter than the time periods for non-
summary cases. Given the expedited treatment given to summary court procedures, should you seek
assistance from someone knowledgeable in landlord/tenant law, you should not delay seeking
guidance from an attorney, legal aid organization, or tenant advocacy group because your written
response (e.g. an Answer) must be filed within five days of the date that you were served unless the
fifth day is a weekend or court holiday, in which case the answer must be filed on the next day that is
not a weekend or court holiday. Note that obtaining a jury trial requires additional steps and, as with
any trial, it is highly recommended a tenant retain legal representation especially if the case will be
tried to a jury.

The court-administered eviction process assures the tenant of the right to a trial if the tenant believes
that the landlord has no right to evict the tenant. The landlord must use this court process to evict the
tenant; the landlord cannot use self-help measures to force the tenant to move. For example, the
landlord cannot physically remove or lock out the tenant, cut off utilities such as water, gas or
electricity, remove outside windows or doors, or seize (remove) the tenant’s belongings in order to
carry out the eviction. The landlord must use the court procedures.

If the landlord uses unlawful methods to evict a tenant, the landlord may be subject to liability for the
tenant’s actual damages, such as needing to stay in hotel, additional cost of paying to eat away from
home, etc., as well as penalties of up to $100 per day for the time that the landlord used the unlawful
methods.404

In an unlawful detainer lawsuit, the court holds a trial where the parties can present their evidence
and explain their case. If the court decides in favor of the tenant, the tenant will not have to move out
(but may still be liable for unpaid rent), and the landlord may be ordered to pay court costs (for
example, the tenant’s filing fees). If the tenant’s defense involves alleging the landlord failed to
provide a habitable premises, which justified their non-payment of rent, the court may order the
landlord to make repairs. The landlord also may have to pay the tenant’s attorney’s fees, if the rental
agreement contains an attorney’s fee clause and if the tenant was represented by an attorney.405

If the court decides in favor of the landlord, the court will issue a writ of possession.406 The writ of
possession orders the sheriff to remove the tenant from the rental unit, but gives the tenant five days
from the date that the writ is served to leave voluntarily. If the tenant does not leave by the end of the
fifth day, the writ of possession authorizes the sheriff to physically remove and lock the tenant out.
When a tenant is locked out, if the tenant leaves behind personal property, the tenant’s personal
property must be processed in accordance with California law, specifically Civil Code section 1951.3.
The landlord is not entitled to possession of the rental unit until after the sheriff has removed the

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tenant.

The court also may award the landlord any unpaid rent if the eviction is based on the tenant’s failure
to pay rent. The court can also award additional rent damages (so-called “holdover damages”) for
days of rent, for which the landlord would not otherwise be paid, for the time the tenant has remained
in the unit up to the day the court’s judgment is entered. The court also may award the landlord court
costs, and attorney’s fees (if the rental agreement contains an attorney’s fee clause and if the landlord
was represented by an attorney). If the court finds that the tenant acted maliciously in not giving up
the rental unit, the court also may award the landlord up to an additional $600 as a penalty.407 The
judgment against the tenant will be reported on the tenant’s credit report for seven years.408 Any
amount of money awarded to the landlord may be garnished from the tenant’s wages, the tenant’s
bank account, and/or by other judgment enforcement means.

How to respond to an unlawful detainer lawsuit

If you are served with an unlawful detainer complaint, you should get legal advice or assistance
immediately because unlawful detainer actions are summary proceedings and have shortened
deadlines. Tenant organizations, tenant-landlord programs, housing clinics, legal aid organizations,
or private attorneys can provide you with advice, and assistance if you need it (see “Getting Help
From a Third Party”). Keep in mind that only licensed attorneys can give you legal advice, but other
organizations can help with the process of responding to an unlawful detainer. Many courts also have
“self-help” centers where you can get access to resources and assistance to help you respond. Again,
these centers cannot provide legal advice, but they can help you navigate the process.

You usually have only five court days to respond in writing to the landlord’s complaint.409 You must
respond during this time by filing the correct legal document with the Clerk of Court in which the
lawsuit was filed. Typically, a tenant responds to a landlord’s complaint by filing a written “answer”
(you can get a copy of a form to use for filing an answer from the Clerk of Court’s office or online at
www.courts.ca.gov/documents/ud105.pdf). There is a substantial filing fee for each defendant
submitting an answer. However, if you are very low income or paying the fee would be a hardship you
can file additional forms to ask that the fee be waived (these forms are available from the court or
online at https://www.courts.ca.gov/forms.htm?query=fee%20waivers) at the same time you file your
answer.

You may have a legal defense or defenses to the landlord’s complaint. If so, you must state the
defense(s) in a written answer and file your written answer with the Clerk of Court by the end of the
fifth court day following the day you were properly served the summons and complaint. Otherwise,
the landlord can ask the court for a ‘default judgment’ because you failed to answer, and you may lose
any chance to state any defenses that you may have. Some typical defenses that a tenant might have

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are listed here as examples:

The landlord’s three-day notice requested more rent than was actually due.

The rental unit violated the implied warranty of habitability by failing to provide safe and habitable
conditions at the property.

The landlord filed the eviction action in retaliation for the tenant exercising a tenant right or because
the tenant complained to the building inspector about the condition of the rental unit.

The landlord filed the eviction action because an act of domestic violence, sexual assault, stalking,
elder abuse or human trafficking that disturbed the other tenants, but the victim has not allowed the
perpetrator to return to the unit.

The landlord filed the eviction because police or emergency assistance were called by or on behalf of a
victim of crime, victim of abuse, or person in an emergency where assistance was believed to be
necessary.

The answer form has check boxes that allow you to select “affirmative defenses” that you believe apply
to your case. You then should provide in the answer an explanation of the facts that support any
selected defense(s). You may also attach relevant documents to answer as “Exhibits” that help state
and/or prove the facts you are relying upon.

Depending on the facts of your case, there are other legal responses to the landlord’s complaint that
you might file instead of an answer. For example, if you believe that your landlord did not properly
serve the summons and the complaint, you might file a Motion to Quash Service of Summons. If
you believe that the complaint has some technical defect or does not properly allege the landlord’s
right to evict you, you might file a document called a "demurrer" requesting dismissal of the
complaint. You might also file a Motion to Strike to ask the court to invalidate some portion, or even
all, of the landlord’s complaint. It is strongly recommended that you obtain advice from a lawyer
before you attempt to use these procedures. It is also recommended that you obtain advice from a
lawyer before you file your answer. However, keep in mind that you do not want to miss the deadline,
so seek legal assistance the same day you are served an unlawful detainer complaint.

In addition to filing any form of response to the landlord’s summons and complaint you must
properly serve a copy of that response to the landlord, or more likely to the attorney who represents
the landlord. Most often this is done by mail. However, you, as a party to the case, are not permitted
to be the one carrying out that service. You must get an adult (i.e., someone who is over the age of 18)
who is not a party to the case to perform the service and sign a “proof of service” form that you will file
with the court.

If you do not file a written response to the landlord’s complaint by the end of the fifth day, assuming

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that the landlord properly served the summons and complaint, the court may approve the landlord’s
request to enter a default judgment in favor of the landlord after the landlord submits a request to
the court to enter a default against you. A default judgment allows the landlord to obtain a writ of
possession and may also lead to an award to the landlord for unpaid rent, damages and court costs. A
default judgment means that you lose the case and will be evicted.

The Clerk of Court will ask you to pay a filing fee for each answering defendant named in the
landlord’s complaint when they file a written response. As of January 1, 2020, the filing fee typically is
about $385 per answering defendant, but it may be waived based on income or hardship .410

After you file your written answer to the landlord’s complaint, and serve a copy of that answer to the
landlord or their attorney, the landlord will submit a request to the court for a trial date for the case
called a “Request to Set Case for Trial” (form UD-150). The landlord is supposed to also mail you a
copy of this request, however that often does not happen. You can also file the same form as a
“Counter Request to Set Case for Trial.” Once the court clerk has received the landlord’s request, and
possibly your counter request, they will mail to both you and the landlord a notice of the time and
place of the trial. If you fail to appear in court, the trial may occur without your presence, which will
mean you will have no ability to contradict any evidence or testimony presented by your landlord.

Service of tenant’s written answer: You must also serve your landlord (or the landlord’s
attorney, if the landlord is represented by legal counsel) with a copy of the written answer to the
landlord’s complaint. This must be done by someone over the age of 18 who is not a party to the case.
Service is usually completed by mailing or personally serving a copy of the written answer on/to the
landlord (or the landlord’s attorney, if the landlord is represented). The person who completes this
service should then fill out and sign a Proof of Service. The tenant should file the Proof of Service,
along with his/her answer, with the Clerk of the Court.

Special Rules for Tenants in the Military: A servicemember may be entitled to a stay (delay) of
an eviction action for 90 days. This rule applies to the servicemember and his or her dependents (such
as a spouse or child) in a residential rental unit with rent of $2,400 per month or less, as adjusted by
the housing price inflation adjustment beginning in 2004. In 2018, the rental ceiling was $3,717. The
servicemember’s ability to pay rent must be materially affected by military service. The judge may
order the stay on his or her own motion or upon request by the servicemember or a representative.
The judge can adjust the length and terms of the delay as equity (fairness) requires.411 Landlords that
violate the court-ordered eviction process in regards to a servicemember may face a fine and/or
imprisonment for up to one year.412

Eviction of “unnamed occupants”

Sometimes, adults who are not parties to the rental agreement move into the rental unit with the

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tenant or after the tenant leaves, but before the unlawful detainer lawsuit is filed. When a landlord
thinks that these “occupants” might claim a legal right to possess the rental unit, the landlord may
seek to include them as defendants in the eviction action, even if the landlord does not know who they
are. In this case, the landlord will serve the tenant and “all other occupants” with a Prejudgment
Claim of Right to Possession at the same time that the eviction summons and complaint are
served on the tenants who are named defendants.413 Note that when service includes this form it may
only be performed by a marshal, sheriff, or a process served registered with the state. See additional
discussion of “unnamed occupants” and the Claim of Right to Possession. Unnamed occupants should
consider whether it is prudent to complete and submit the Prejudgment Claim form, which effectively
adds their name as a defendant in the eviction lawsuit. While being a defendant may allow a person to
state their own defense it may come at the price of having a record of a court eviction. However,
without making such a submission, the unnamed occupants’ fate with respect to being evicted will
depend on what happens to those already named in the lawsuit. If those tenants lose at court the
sheriff will evict everyone at the unit, as the opportunity to submit a (post-judgment) Claim of Right
to Possession is foreclosed by the service of the Prejudgment Claim form.

Before the court hearing

Before appearing in court, if you are not able to be represented by an attorney, you must carefully
prepare your case, just as an attorney would. If you elect to retain an attorney, you should try to find
an attorney as early as possible. Among other things, you should:

Be mindful that when you are served with the summons and complaint, you have only five court days
after you have been properly served the summons and complaint in which to file an answer. You
should carefully read the summons, which contains very specific information on how to answer the
complaint and the strict timelines.

Talk with a housing clinic, tenant organization, attorney, or legal aid organization as early as possible.
This will help you understand the legal issues in your case and the evidence that you will need.

Request discovery of the evidence that may be helpful to your case or to preparing a defense (see
“Discovery in Unlawful Detainer Cases”).

Decide how you will present the facts that support your side of the case. What documents, letters,
photographs or videos will you attempt to offer into evidence? What witnesses do you intend to call to
testify on your behalf.

Have at least five copies of all documents that you intend to use as evidence—an original for the judge
and copies for the court clerk, the opposing party, your witnesses and you.

Ask witnesses who will help your case to testify at the trial. You can subpoena a witness who will not

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testify voluntarily. A subpoena is an order from the court compelling a witness to appear. The
subpoena must be served upon (handed to) the witness within a reasonable time before the hearing
(for example, two weeks prior to the hearing), and can be served by anyone, other than yourself, who
is over the age of 18. You can obtain a subpoena from the Clerk of Court. You must pay witness fees at
the time the subpoena is served on the witness, if the witness requests them.

The parties to an unlawful detainer lawsuit have the right to a jury trial, and either party can request
one.414 After you have filed your answer to the landlord’s complaint, usually the landlord will file a
document called a Memorandum to Set Case for Trial (officially called a “Request/Counter-
Request to Set Case for Trial - Unlawful Detainer” form [Judicial Council Form UD-150].)45 You can
get a copy online at www.courts.ca.gov/documents/ud150.pdf. This document will indicate whether
the plaintiff (landlord) has requested a jury trial. Whether or not you should request a jury trial will
depend on the individual facts and circumstances of your case. Jury trials may be more beneficial
under the certain circumstances and less beneficial under other circumstances. However, you may
want to list in your answer that you request a jury trial, and you can later decide to waive your right to
a jury, if you so choose. But if you do not request a jury timely, then later you will not have the right to
a jury.

There are several good reasons for this recommendation. First, presenting a case to a jury is more
complex than presenting a case to a judge, and a non-lawyer representing himself or herself may find
it very difficult. Second, the party requesting a jury trial will be responsible for depositing the initial
cost of jury fees with the court, unless a supplemental fee waiver request is granted. Third, the losing
party will have to pay all of the jury costs.416

At any time prior to entry of final judgment, either party may initiate settlement discussions to resolve
the parties’ dispute. There are a number of reasons why landlords and/or tenants may find settlement
preferable to proceeding through trial, including if any party has doubts about the merits of their case,
the prospect that a material witness may not testify or testify adversely against their case, and/or
concerns about the litigation costs and time associated with preparing and trying their case to
conclusion before a judge or jury.

If the parties reach a settlement, the settlement typically is made official by a document called a
“stipulated judgment.” The agreement may be that the tenant pays the landlord a certain amount,
possibly in installments instead of one lump sum, the tenant agrees to move out by a certain date, or
the landlord agrees to make certain repairs. It is very important that both parties fully
understand all provisions of any settlement before signing the stipulation, which then will
be presented to the judge. Do not let yourself be rushed into agreeing to a stipulation without
understanding it and make sure that you can perform the promises that you are agreeing to.

If at all possible, as part of the negotiation in arriving at the settlement, the defendant (i.e., the tenant

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if the landlord filed the lawsuit or the landlord if the tenant filed the lawsuit) should demand that in
exchange for the defendant’s promised actions the plaintiff will agree to dismiss the case. Be aware
that such settlements typically are structured so that if a party fails to do any one of things he/she
agreed to (a default) the non-defaulting party will immediately have the right to enter a judgment
against the defaulting party and receive certain relief as part of that judgment. If the tenant is the
defaulting party, that may lead to the landlord obtaining an immediate issuance of a writ of
possession to remove the tenant from the rental unit. However, if the defendant performs as agreed,
and the agreement calls for it, the plaintiff will dismiss the case and there will be no adverse judgment
against the defendant.

Discovery in Unlawful Detainer Cases

Parties to a lawsuit, including an unlawful detainer (eviction) lawsuits are entitled to conduct
discovery to learn about another party’s facts, defenses or the bases for their legal positions. Any party
may avail him/herself of any one or all four of the available discovery vehicles, which consist of
written interrogatories,417 requests for production of documents,418 requests for admissions,419 and
depositions420 of another party to the lawsuit or third parties not involved in the lawsuit.
Interrogatories are written questions that the responding party must answer under oath. Requests for
production seek to obtain copies of the responding party’s documents. Requests for admissions seek
to have the responding party admit or deny the truthfulness of a particular statement. Depositions are
live, in-person opportunities for one party to ask another party or a third-party questions that that
party must answer under oath. Each of the four available discovery vehicles requires a minimum of
five days’ notice to the other party before that party is required to respond.421 This timeline applies if
the discovery requests are personally delivered either to the office of the other party or the office of
his/her attorney if they are represented. The responding party is afforded an additional 5 days (10
days total) if service is performed by mail. Under these rules, the responding party must comply with
the requesting party’s request for discovery within five days.422 All discovery must be completed
on or before the fifth day before the date set for trial.423 Because the landlord can request the
court to set a trial date as soon as an answer is filed, it is imperative that any discovery action is
commenced within a few days of filing and serving the answer, or even before that occurs.

If the tenant intends to defend his or her case, and intends to use the discovery process as a tool, the
tenant must follow strict timelines applicable to evictions in California.

The discovery process works in five-day increments. Once the landlord serves the tenant with the
unlawful detainer complaint, the tenant may begin discovery by personally serving or mailing any
discovery requests. The responding party must respond within five days of the date that they received
it if personally served or within ten days of the date that they received it if mailed. All of the discovery

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must be completed at least five days before the date of the trial.424

After the court’s decision

If the court decides in favor of the tenant, the tenant will not have to move out, and the landlord may
be ordered to pay the tenant’s court costs (for example, filing fees) and the tenant’s attorney’s fees if
that is a provision of the rental agreement and the tenant was represented by an attorney at trial.
However, the tenant may have to pay any rent that the court orders within 5 days, which if not paid
within that timeframe could result in the court issuing a judgment in favor of the landlord instead.425
If the tenant’s defense to the landlord’s unlawful detainer action was based on a breach of the
warranty of habitability the rent to be paid will likely be reduced from that called for by the rental
agreement. The court may order a continued reduction in rent until certain necessary repairs are
made.

If the landlord wins, the tenant will have to move out. In some circumstances, the court may order the
tenant to pay the landlord’s court costs and attorney’s fees if the landlord was represented by an
attorney at trial and the rental agreement contains an attorneys’ fees clause. The court also may order
the tenant to pay rent during the holdover period (i.e., the period of time between the end of the
rental term and the date of trial).

The court has discretion to stay the execution of any judgment.426 A losing tenant can request the
court to exercise that discretion to delay when they will have to move out. That request would
typically be made through an ‘ex parte’ application, before the trial judge, for more time to surrender
the premises due to hardship or other good cause. Proper notice of this ‘ex parte’ application needs to
be provided to the landlord or the landlord’s attorney, and the hearing needs to happen quickly, and
prior to the sheriff’s lockout. The sheriff will post a 5-day notice to vacate at the property before the
lockout can occur (see “Writ of Possession”).

The application to stay the execution of the Court’s judgment should be supported by the tenant’s
written declaration (i.e., a statement by the tenant made under penalty of perjury) that states detailed
facts regarding the hardship or other good cause. If the court agrees to stay the execution of the
judgement it will condition it on payment of rent for the period of the stay, but not upon paying any
past due rent. The extra time likely will be limited, as the judge might deem equitable, perhaps as
little as a week or up to a month. Most likely this type of stay would not be granted for any period past
10 days after the time limit to appeal the judgment, which could be around 40 days.427 for any further
stay it would be necessary to seek or already have sought a stay pending appeal pursuant to Code of

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Civil Procedure Section 1176, further discussed below.

It is possible, but very rare, for a losing tenant to convince the court to allow the tenant to remain in
the rental unit. This is called relief from forfeiture of the tenancy. The tenant must convince the
court of two things in order to obtain relief from forfeiture: (1) that the eviction would cause the
tenant severe hardship, and (2) either that the tenant is able to pay all of the rent that is due or that
the tenant will fully comply with the rental agreement.428

A tenant can obtain relief from forfeiture even if the tenancy has terminated (ended), so long as
possession of the unit has not been turned over to the landlord. A tenant seeking relief from forfeiture
must apply for relief at any time prior to restoration of the premises to the landlord, but such a
petition should be made as soon as possible after the court issues its judgment in the unlawful
detainer lawsuit. To do this, the tenant must file a motion for relief from forfeiture.428 A tenant who is
not represented by an attorney at trial can even make an oral motion for relief from forfeiture
immediately following the court’s decision or by speaking with the judge in an ‘ex parte’ hearing.

A tenant who loses an unlawful detainer lawsuit may appeal the judgment if the tenant believes that
the judge mistakenly decided a legal issue in the case. However, the tenant will have to move out of
the rental unit before the appeal is decided by the court, unless the tenant petitions for a stay of
enforcement of the judgment or applies for relief from forfeiture (described immediately above). The
court will not grant the tenant’s request for a stay of enforcement unless the court finds that the
tenant or the tenant’s family will suffer extreme hardship, and that the landlord will not suffer
irreparable harm. If the court grants the request for a stay of enforcement, it will order the tenant to
make rent payments to the court in the amount ordered by the court and may impose additional
conditions.430

A landlord who loses an unlawful detainer lawsuit also may appeal the judgment as well.

Writ of possession

If a judgment is entered against the tenant and becomes final (for example, if the tenant does not
appeal or loses on appeal), and the tenant does not move out, the court will issue a writ of
possession to the landlord.431 The landlord can deliver this legal document to the sheriff, who will
then forcibly evict the tenant from the rental unit if the tenant does not leave within the time allowed.

Before evicting the tenant, the sheriff will serve the tenant with a copy of the writ of possession along
with a Notice to Vacate.432 If the tenant is not at home, the sheriff may post it on the tenant’s door.
The writ of possession instructs the tenant that he/she must move out by the end of the fifth day after
the writ is served, and that if the tenant does not move out, the sheriff will remove the tenant from the
rental unit and place the landlord back in possession.433 The cost of serving the writ of possession will

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be added to the other costs of the suit that the landlord can collect from the tenant.

After the tenant is served with the writ of possession, the tenant has five days to move. If the tenant
has not moved by the end of the fifth day, the sheriff will return and physically remove the tenant.434
If a tenant’s belongings are still in the rental unit, they will initially be locked in. The landlord must
exercise reasonable care of your belongings and store them in a place of safekeeping. The landlord has
the option of continuing to store your belongings in the unit or removing them to another storage
space for safekeeping. The landlord cannot unreasonably deny you the right to reclaim your
belongings.435 However, before the tenant can reclaim his/her belongings the landlord may require
the tenant to pay for the reasonable storage costs and moving costs, if any. If they are stored in the
rental unit the landlord can ask the tenant to pay the reasonable daily rental value for the unit for
each day they are stored. If the tenant does not reclaim these belongings within 15 days, the landlord
can mail the tenant a notice to pick them up, and then can either sell them at auction or keep them (if
their value is less than $700).436 If the sheriff forcibly evicts you, the sheriff’s cost will also be added
to the judgment, which the landlord can collect from you, e.g. through wage garnishment, bank
garnishment, or other judgment enforcement means.

Stay of Execution

Once you are served with a writ of possession, you may be able to file something called a Stay of
Execution to stay in your home for a short while longer. A Stay of Execution asks the court to delay
the eviction for a certain period of time not longer than 40 days. In return, you must pay rent to the
court for each extra day that you remain once the Stay is granted. A Stay does not change the eviction
judgment or reinstate your tenancy, but it can grant you more time to file a motion seeking to do so.
Different courts may use different procedures for requesting a Stay, but each one will require you to
notify your landlord and file a written request.437

Setting aside or vacating a default judgment or trial judgment

If the tenant does not file a written response to the landlord’s complaint, the landlord can ask the
court to enter a default judgment against the tenant. Upon the court entering default, the tenant will
receive a notice of judgment, and a writ of possession as described above.

There are many reasons why a tenant might not respond to the landlord’s complaint. For example, the
tenant may have received the summons and complaint, but was not able to respond because the
tenant was ill or incapacitated, or for some other very good reason. There are also circumstances
where the landlord failed properly to serve the tenant with the summons and complaint, hence the
reason why the tenant may have been unaware of the legal proceeding or the need to appear at trial.
In situations such as these, where the tenant has a valid reason for not responding to the landlord’s

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complaint, the tenant can ask the court to set aside the default judgment.

Setting aside or “vacating” a judgment can be a complex legal proceeding, so be sure to retain an
attorney as early as possible if you plan on having an attorney represent you in your efforts to set
aside or vacate a judgment. Common reasons for seeking to set aside a default judgment are the
tenant’s (or the tenant’s lawyer’s) mistake, inadvertence, surprise, or excusable neglect.438 A tenant
who wants to ask the court to set aside a judgment must act promptly. The tenant should be able to
show the court that they have a satisfactory excuse for not filing a response or missing the trial, acted
promptly in making the request, and had a good chance to win at trial.439 This last item is crucial,
and is achieved by submitting a ‘proposed answer’ that states a seemingly plausible affirmative
defense to the eviction, along with the other required documents when requesting a default be set
aside. If possession of the unit has been returned to the landlord (i.e. the tenant has been locked out)
the tenant can still seek to set aside the default, but it may not result in the tenant being restored to
the unit.

Special rules for tenants in the military may make it more difficult for a landlord to obtain a
default judgment against the tenant, and may make it possible for a tenant to reopen a default
judgment and defend the unlawful detainer action.440

A word about bankruptcy

Some tenants think that filing a bankruptcy petition will prevent them from being evicted. This is not
always true. Even if it delays an eviction, filing for bankruptcy without having a legitimate need for
other economic relief is generally a poor idea.

Filing bankruptcy is a serious decision with many long-term consequences beyond the eviction action.

A tenant who is thinking about filing bankruptcy because of the threat of eviction, or for any reason,
should consult a bankruptcy attorney and carefully weigh their advice. While it is possible for a person
to file for bankruptcy without the use of an attorney’s services, it is ill-advised at best.

Bankruptcy, which is handled in the federal bankruptcy courts, is a complicated legal specialty and
explaining it is beyond the scope of this guide. However, here is some basic information about
bankruptcy as it relates to unlawful detainer proceedings:441

A tenant who files a bankruptcy petition normally is entitled to an immediate automatic stay
(delay) of a pending unlawful detainer action. If the landlord hasn’t already filed the unlawful
detainer action, the automatic stay prevents the landlord from taking steps such as serving a three-
day notice or filing the action.442

The landlord may petition the bankruptcy court for permission to proceed with the unlawful detainer

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action (called “relief from the automatic stay”)443.

The automatic stay may continue in effect until the bankruptcy case is closed, dismissed, or
completed. On the other hand, the bankruptcy court may lift the stay if the landlord shows that they
are entitled to relief.444 It is fairly routine for the bankruptcy court to grant the landlord’s petition,
resulting in some delay of the eviction process, but any actual prevention of the eviction proceeding.

The automatic stay normally does not prevent the landlord from enforcing an unlawful detainer
judgment that was obtained before the tenant’s petition was filed. In some cases, however, the tenant
may be able to keep the stay in effect for 30 days after the petition is filed.445

The automatic stay does not apply if the landlord’s eviction action is based on the tenant’s
endangering the rental property or using illegal controlled substances on the property, and if the
landlord files a required certification with the bankruptcy court. The stay normally will remain in
effect, however, for 15 days after the landlord files the certification with the court.446

A bankruptcy case can be dismissed for “cause”—for example, if the tenant neglects to pay fees or file
necessary schedules and financial information, causes unreasonable delay that harms the landlord, or
files the case in bad faith.447

The bankruptcy court also can issue sanctions (i.e., penalties) against a person who files for
bankruptcy petition in bad faith.

A landlord may try to evict a tenant because the tenant has exercised a legal right (for example, using
the repair and deduct remedy) or has complained about a problem in the rental unit. Or, the landlord
may raise the tenant’s rent or otherwise seek to punish the tenant for complaining or lawfully
exercising a tenant right.

In these situations, the landlord’s action may be considered retaliatory because the landlord is
punishing the tenant for the tenant’s exercise of a legal right. The law offers tenants protection from
retaliatory eviction and other retaliatory acts.448

If a landlord tries to evict a tenant within six months after the tenant has exercised certain rights, the
law assumes the eviction is retaliatory.449 The following are examples of rights that the tenant may
lawfully exercise:

Using the repair and deduct remedy or telling the landlord that the tenant will use the repair and
deduct remedy.

Complaining about the condition of the rental unit to the landlord, or to an appropriate public agency
(such as local code enforcement) after giving the landlord notice.

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Filing a lawsuit or beginning arbitration based on the condition of the rental unit.

Causing an appropriate public agency to inspect the rental unit or to issue a citation to the landlord.

In order for the tenant to defend against eviction on the basis of retaliation, the tenant must prove
that they exercised one or more of these rights within the six-month period immediately preceding
the landlord’s attempt to evict the tenant, that the tenant’s rent is current, and that the tenant has not
used the defense of retaliation more than once in the past 12 months. If the tenant produces all of this
evidence, then the burden is on the landlord to present evidence and prove that they did not have a
retaliatory motive.450 Even if the landlord proves that they have a valid reason for the eviction, the
tenant may still prove retaliation by showing that the landlord’s effort to evict the tenant is not in
good faith (i.e. it is merely a pretext).451 If both sides produce the necessary evidence, the judge or
jury then must decide whether the landlord’s action was retaliatory or was based on a valid reason.

A tenant can also assert retaliation as a defense to eviction if the tenant has lawfully organized or
participated in a tenants’ organization or protest or has lawfully exercised any other legal right, such
as requesting repairs that the landlord is required to make or making a complaint about the landlord
to a government agency. In these circumstances, the tenant must prove that they engaged in the
protected activity, and that the landlord’s conduct was retaliatory.452

In addition to citing illegal retaliation as a defense to eviction, a tenant can file an affirmative case
seeking actual and statutory monetary damages if they believe they have been the victim of
retaliation. A tenant can bring such a claim even if they move due to a landlord’s retaliatory actions. A
tenant does not have to ‘stay and fight’. However, if a tenant unsuccessfully raises retaliation as a
defense in an unlawful detainer, such an affirmative claim on the same or similar facts will likely be
unsuccessful, as a court has already rule that there was no retaliation. In addition to actual damages,
the anti-retaliation law provides for up to $2,000 in statutory damages for each actual or attempted
retaliatory act by the landlord.

If you feel that your landlord has retaliated against you because of action you properly took against
your landlord, talk with an attorney or legal aid organization. An attorney also may be able to advise
you about other defenses.

Retaliatory discrimination

A landlord, managing agent, real estate broker, or salesperson violates California’s Fair Employment
and Housing Act and the federal Fair Housing Act by harassing, evicting, or otherwise discriminating
against a person in the sale or renting of housing when the “dominant purpose” is to retaliate against
a person who has done any of the following:453

Opposed practices that are discriminatory and unlawful under either Act;

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Told the police about a landlord’s discriminatory or unlawful behavior; or

Aided or encouraged a person to exercise rights protected by California laws prohibiting housing
discrimination.

A tenant who can prove that the landlord’s eviction action is based on a discriminatory motive has a
defense to the unlawful detainer action. A tenant who is the victim of retaliatory discrimination also
has a cause of action for damages under the Fair Employment and Housing Act.454 If your landlord
has been discriminating against you, you can contact your local legal services office found at
lawhelpca.org and/or the Department of Fair Employment and Housing at www.dfeh.ca.gov.

362 Code Civ. Proc. § 1179.03.5.

363 Health & Saf. Code § 50897.1.
364 Civ. Code § 1946.2(f).

365 Civ. Code § 1946.2(g).

366 Civ. Code § 1946.2(a).

367 Civ. Code § 1946.2(e).

368 Civ. Code § 1946.2(b).

369 Civ. Code § 1946.2(b)(1).

370 Civ. Code § 1946.2(b)(2).
371 Civ. Code § 1946.2(c).

372 Civ. Code § 1946.2(c).

373 Civ. Code § 1946.2(d).

374 Civ. Code § 1946.2(d).

375 Code Civ. Proc. § 1161.3.

376 34 U.S.C. § 12491(d). The notice and self-certification form should be made available in non-

English languages. HUD has made the VAWA notice (Form 5380) and self-certification form (Form
5382) available online in multiple languages: https://www.hud.gov/program_offices/administration
/hudclips/forms/hud5a.
377 Code Civ. Proc. § 1161(2)-(4).
378 Code Civ. Proc. § 1161.3.
379 34 U.S.C. § 12491(d). The notice and self-certification form should be made available in non-

English languages. HUD has made the VAWA notice (Form 5380) and self-certification form (Form
5382) available online in multiple languages: https://www.hud.gov/program_offices/administration

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/hudclips/forms/hud5a. See also DHI Cherry Glen Associates, L.P. v. Gutierrez (2019), 46
Cal.App.5th Supp. 1 (Ca. Sup. Ct. App. Div. Nov. 2019).
380 Code Civ. Proc. § 1162(2); California Practice Guide, Landlord-Tenant, §§ 7:104.10-7:104.13

(Rutter Group 2021).

381 Code Civ. Proc. § 1161(3).
382 EDC Associates Ltd. v. Gutierrez (1984) 153 Cal.App.3d 167, 171.
383 Weaver, California Tenants’ Rights, 23rd Ed., pages 246-247. (NOLO Press 2022)

384 Code Civ. Proc. § 1161(2) and (3), see also Code Civ. Proc. §§ 12, 12a, and 135 regarding the
definition of legal and judicial holidays.
385 Code Civ. Proc. § 1161(4).
386 Code Civ. Proc. § 1162(1).

387 Code Civ. Proc. § 1162(2).

388 Code Civ. Proc. § 1162(3).

389 Walters v. Meyers (1990) 226 Cal.App.3d Supp. 15, 19-20 (service of a three-day notice by way of

posing and mailing is effective from the date the notice is posted and mailed, not from the date the
tenant received it). See also California Practice Guide, Landlord-Tenant, §§ 7:186-7:188.2 (Rutter
Group 2021) (mailing three-day notice does not extend time to respond).
390 Civ. Code § 1946; Code Civ. Proc. § 1162.
391 Code Civ. Proc. § 1179.03.5.

392 Health & Saf. Code § 50897.1.

393 Code Civ. Proc. § 415.10.

394 Code Civ. Proc. § 415.20.

395 Code Civ. Proc. § 415.45.

396 Civ. Code § 3486; Moskovitz et al., California Landlord-Tenant Practice §§ 4.44, et seq
(Cont.Ed.Bar 2021).
397 Civ. Code § 3485(a).

398 California Practice Guide, Landlord-Tenant, § 7:306 (Rutter Group 2021) (For unlawful detainers

based on weapons and ammunitions allegations, the cities are Los Angeles, Long Beach, Oakland, and
Sacramento. For drug abatement unlawful detainers, the cities are Los Angeles, Long Beach,
Sacramento and Oakland.).
399 Code Civ. Proc. § 1167.3.
400 Code Civ. Proc. § 1170.5(a).
401 Civ. Code § 789.3(c).

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402 Civ. Code § 1717; Trope v. Katz (1995) 11 Cal.4th 274; California Practice Guide, Landlord-Tenant,
§§ 9:391-9:391.7 (Rutter Group 2021).
403 Code Civ. Proc. §§ 712.010 and 715.010.

404 Code Civ. Proc. § 1174(b).

405 Civ. Code § 1785.13(a)(2) and (a)(3).
406 Code Civ. Proc. § 1167.
407 The application form is Judicial Council Form FW-001. You may qualify for a fee waiver if you
receive benefits under the Food Stamps, SSI/SSP, Medi-Cal, County Relief/Gen. Assist., HISS,
CalWORKs/TANF, CAPI, or if your gross monthly household income for your household size is less
than the amount shown in a table on the form. You also may qualify for fee waiver if your income is
not enough to pay for your household's basic needs as well as the court fees.
408 Servicemembers Civil Relief Act, 50 U.S.C §§ 3901 et seq.; California Practice Guide, Landlord-

Tenant, § 7:80.10 (Rutter Group 2021).

409 Servicemembers Civil Relief Act, 50 U.S.C § 3951(b)(2).
410 Code Civ. Proc. § 415.46(a).
411 The lease or rental agreement cannot require that the tenant waive the right to a jury trial before a

dispute arises. However, the lease or rental agreement might be able to require that any dispute that
arises be submitted to arbitration. (Grafton Partners LP v. Superior Court) (PricewaterhouseCoopers
LLP (2005) 36 Cal.4th 944, 967.) The enforceability of arbitration requirements in a rental agreement
is not a fully settled question (see Weiler v. Marcus & Millichap Real Estate Investment Serv
412 California Practice Guide, Landlord-Tenant, §§ 9:4-9:11 (Rutter Group 2021).
413 Weaver, California Tenants’ Rights, 23rdt Ed., pages 303 (NOLO Press 2022).
414 Code Civ. Proc. § 2030.260(b).
415 Code Civ. Proc. §§ 2031.010, 2031.020(c), (d), 2031.030(c), and 2031.260(b).
416 Code Civ. Proc. § 2033.020(c).
417 Code Civ. Proc. § 2025.270(b).

418 California Practice Guide, Landlord-Tenant, §§ 8:425-8:437.5 (Rutter Group 2021).

419 California Practice Guide, Landlord-Tenant, §§ 8:425-8:437.5 (Rutter Group 2021).

420 Code Civ. Proc. § 2024.040(b)(1).

421 The time periods discussed assume that no orders are obtained shortening or extending time. See

California Practice Guide, Landlord-Tenant, §§ 8:425-8:462 (Rutter Group 2021).

422 Code Civ. Proc. § 1174.2(a).

423 Code Civ. Proc. § 918(a).

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424 Code Civ. Proc. § 918(b).

425 Code Civ. Proc. § 1179.

426 California Practice Guide, Landlord-Tenant, §§ 9:440-9:446 (Rutter Group 2021). The tenant’s

written petition must be served on the landlord at least five days before the date of the hearing on the
request for relief. If the tenant does not have an attorney, the tenant may orally apply to the court for
relief, if the landlord either is present in court or has been given proper notice. The court also may
order relief from forfeiture on its own motion. The court may order relief from forfeiture o
427 Code Civ. Proc. § 1176.
428 Code Civ. Proc. § 715.010.

429 Code Civ. Proc. § 715.020.

430 Code Civ. Proc. § 715.010(b)(2).

431 Code Civ. Proc. § 715.020(c).

432 Civ. Code § 1965.

433 Code Civ. Proc. §§ 715.030 and 1174(h); Civ. Code §§ 1965 and 1988.

434 Code Civ. Proc. § 918(a).

435 Code Civ. Proc. § 473(b); California Practice Guide, Landlord-Tenant, §§ 8:519.1-8:520.1 (Rutter
Group 2021).
436 Moskovitz et al., California Landlord-Tenant Practice, §§ 13.7-13.16A (Cont.Ed.Bar 2021). See also
California Practice Guide, Landlord-Tenant, § 8:545 (Rutter Group 2021), relief pursuant to Code of
Civ. Proc. § 473(b) must be made within a reasonable time, not exceeding six months after entry of
the default.
437 Servicemembers Civil Relief Act, 50 U.S.C § 3901; California Practice Guide, Landlord-Tenant, §§

8:518.5-8:518.7 (Rutter Group 2021).

438 California Practice Guide, Landlord-Tenant, Chapter 10, (Rutter Group 2021), and Moskovitz et
al., California Landlord-Tenant Practice, Chapter 14 (Cont.Ed.Bar 2021).
439 11 U.S.C § 362(a)(1)-(3) and 11 U.S.C § 362(b)(22).
440 11 U.S.C § 362(d).
441 11 U.S.C § 362(c) and (d).
442 11 U.S.C § 362(b)(22) and (l)(1), which provide protection for the tenant if there are circumstances
which would allow the tenant to cure the money damages or where the tenant has deposited with the
clerk of the court any rent due after the filing of the bankruptcy.
443 11 U.S.C § 362(b)(23) and (m)(1).
444 Moskovitz et al., California Landlord-Tenant Practice, § 14.32 (Cont.Ed.Bar 2021).

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445 Civ. Code § 1942.5.

446 Civ. Code § 1942.5.

447 Civ. Code § 1942.5(a) and (b); California Practice Guide, Landlord-Tenant, §§ 7:375-7:377 (Rutter
Group 2021).
448 Moskovitz et al., California Landlord-Tenant Practice, § 12.38 (Cont.Ed.Bar 2021).
449 Civ. Code § 1942.5(d).
450 Gov. Code §§ 12955(f) and 12955.7; 42 U.S.C § 3617.

451 California Practice Guide, Landlord-Tenant, §§ 7:210 and 7:393 (Rutter Group 2021).
452 Civ. Code § 1950.5(j). Exception: pursuant to Civ. Code § 1050.5(j)(3), If the new landlord acted in
the good faith belief based upon an inquiry and reasonable investigation that the old landlord
properly complied with the transfer or refund requirement, the new landlord is not jointly liable with
the old landlord.
453 Weaver, California Tenants’ Rights, 23rd Ed, page 233 (NOLO Press 2022).

454 Civ. Code § 1950.5(j).

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