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When Can I Start An Unlawful Detainer Action?

YOU CAN START AN UNLAWFUL DETAINER ACTION:
  • When the Landlord-Tenant relationship ends.
  • When a different type of relationship ends.
  • When the property is sold.
THE LANDLORD-TENANT RELATIONSHIPS ENDS:
  • When the Landlord-Tenant Relationship ends. This happens when:
  • The tenant does not leave after the lease ends.
  • There is a month-to-month lease, and the tenant does not move out after a 30-day, 60-day or 90-day notice to quit (move out).
  • The tenant does not pay rent and does not move out after they get a 3-day notice to pay rent or quit.
  • The tenant does not move out after they break a part of the lease agreement and they do not do what the 3-day notice states to fix the violation or move out.
  • The tenant gets a 3-day notice to move out for "committing waste" or a "nuisance" or using the property to do something illegal and does not move out.
  • The landlord accepts the tenant’s "offer to vacate the premises" but the tenant does not leave.
ENDING A DIFFERENT RELATIONSHIP:

An Employer, Master, Licensor, or Principal can use an Unlawful Detainer to evict an employee or servant.


What Forms Do I Need?

THE FORMS THAT YOU WILL NEED TO BEGIN AN UNLAWFUL DETAINER ACTION ARE:

You may also find the appropriate forms and get help filling out the forms you need using the tutorial form programs and eFilng options on the Self-Help Centers’ “Create Court Forms” page.


Where Do I File the Complaint?

JURISDICTION:

You have to file in The Superior Court of California. This is the only court with the power to hear the case. Every county in California has a Superior Court. Many counties have several branches. Make sure you eFile the action and list the right branch of the right county (called venue).

VENUE:

Venue means the county where a court with jurisdiction can hear a lawsuit. For an Unlawful Detainer, the venue is the county where the property is. The Superior Court of Orange County has several branches called "Justice Centers." You must eFile your case and list the correct Justice Center where the property is located. CLICK HERE for a listing of the Justice Centers and the cities that are within each Justice Center’s venue.

EXCEPTION: If the amount owed exceeds $25,000 then all cases are filed at the Central Justice Center-in the Unlimited Civil Division.


How to Complete the Complaint

The complaint is the initial document filed, also known as a lawsuit. There are five sections to the complaint form:

  • Caption
  • Body of the complaint
  • The "request" for the property, and monetary damages, etc.
  • Unlawful Detainer Assistant Disclosure
  • Verification

If you are using the State Fillable forms, (see above "What Forms Do I Need?") you may wish to print out this section to follow as you complete the forms. If you are using a Tutorial Forms Program you can skip the rest of this section and follow the instructions given by the tutorial.

HOW TO COMPLETE THE CAPTION:

Insert your name, address, and phone number.

Court Address:

Insert the name and address of the court that you list as the correct Justice Center where the property is located. (see above "Where Do I File the Complaint?").

Names of the Plaintiffs:

The plaintiff is the person who starts the Unlawful Detainer. In most cases the plaintiff is the landlord. The plaintiff has to be competent and over 18. They have to be able to state that the property is theirs. An agent, such as a property manager, cannot sue in his or her own name.

You can be a landlord even if you do not own the property. For example, if you sublet the property or part of the property, you are the subtenant’s landlord. You can start an Unlawful Detainer against the subtenant. Also, if the owner lets a management company give out leases in its own name, the management company is the landlord. The management company can start an Unlawful Detainer action. But, if the lease is in the owner’s name, the management company is not the landlord. The owner is the plaintiff.

If the plaintiff is a corporation, they must be represented by an attorney.

Names of the Defendants:

The person or people the plaintiff wants to evict is the defendant. The defendant must live on the property when you file. Try to name all of the adults who live at the property as defendants. It can be hard to enforce the judgment against anyone who is not named in the complaint as a defendant. You do not have to name children under 18 as defendants. You can also add unknown defendants by checking the box "DOES" and entering "DOES 1 to (insert a number such as 10 or 100)," etc.

Type of Case:

This has to do with how much damages you ask for in the final section of the complaint. If you ask for more than $25,000 in damages, the case is a "General Civil" Case. If you ask for less, it is a "Limited Civil" case. You have to state if you are asking for more or less than $10,000.

Interests and costs do not count as damages. For example, in a limited civil case, you can get:

  • A judgment for up to $25,000 in damages, plus
    • Interest, plus
    • Costs, plus
    • Attorney’s fees
  • When combined, this may total more than $25,000.

Most Unlawful Detainers about residences are Limited Civil actions. Usually they are not for more than $10,000. Refer to the amount that you put on your Notice.

Who Decides What to State in the Complaint?

ONLY the plaintiff or their lawyer can decide what to state in the complaint. It is illegal for anyone else to do it. Court staff can answer procedural questions, but they cannot fill out or tell you how to complete the complaint.

Why the Plaintiff Can Sue:

The complaint has to identify who or what the plaintiff is.

For example, the plaintiff could be a:

  • Competent person over 18,
  • Public agency,
  • Partnership, or a
  • Corporation (must be represented by an attorney)
Defendant is Using the Property:

The complaint has to include the address of the property. Or it has to give its legal description. The complaint also has to state that the defendant is using the property right now.

Plaintiff’s Standing:

The complaint has to include how the plaintiff is connected with the property.

For example, if the plaintiff is a:

  • Landlord
  • Property manager
  • Sub lessor
  • Owner
The Relationship between the Plaintiff and Defendant:

The complaint has to state what relationship the plaintiff and defendant have. The relationship is the basis for the action. Most Unlawful Detainer actions are about a landlord-tenant relationship.

But there are other relationships that can be the basis for an Unlawful Detainer:

  • Master-servant
  • Employer-employee
  • Principal-agent
  • The relationship between the buyer at a foreclosure or execution sale and the old owner (or the old owner’s tenants)

The complaint also has to state how the relationship started. For example, in a landlord-tenant relationship, the complaint can state:

  • There is a lease.
  • If the lease is oral or in writing.
  • Who agreed to the lease.
  • The date they agreed to the lease.
  • The terms of the lease. This may include how much rent the tenant pays, when rent is due, etc.
  • Any changes to the lease. This may include the rent going up, or a fixed lease to a month-to-month lease.
  • The date the lease started.
Facts That Support an Unlawful Detainer:

The complaint has to give facts that prove the defendant is staying on the property illegally. For a landlord-tenant case, the complaint has to explain how the lease ended.

If the landlord canceled the lease, the complaint has to:

  • State what notice the defendant got. This can be a:
    • 3-Day Notice to Pay Rent or Quit,
    • 3-Day Notice to Perform Covenants or Quit,
    • 3-Day Notice to Quit, or
    • 30-Day or 60-day Notice to Quit
  • Include a copy of the notice.
  • State what the notice says is true.
  • State what date the defendant got the notice and how it was served
  • State the defendant did not do what the notice asked for by the deadline stated in the notice.

If there is rent control or eviction control, the complaint has to state that the plaintiff followed those laws. If the property is a mobile home or a mobile home park or government subsidized housing, then the complaint has to state that the plaintiff followed the special laws, called statutes, for those places.

Facts That Support Money Damages:

An Unlawful Detainer action is about who gets to stay on the property. But you can also ask for money.

In general, you can only ask for money for:

  • General damages:
    • You can ask for the "fair rental value." This means you can ask for the money you could have rented the property for when the defendant stayed there illegally.
  • Damages for "malice"
  • Back rent:
    • You can ask for back rent if you served the defendant with a 3-Day Notice to Pay Rent or Quit and the notice asked for the rent.

If you ask for general damages, you have to state what the daily fair rental value is. This means how much you could rent the property for on the 1st day the defendant stayed illegally. In landlord-tenant cases, this is the day the lease ended or was canceled. It should be close to 1/30 of one month’s rent.

When there is a judgment against the defendant, the court calculates the damages. They multiply the daily fair rental value by the number of days the defendant stayed illegally until the judgment.

HOW TO COMPLETE THE REQUEST FOR PROPERTY AND MONETARY DAMAGES

The "Plaintiff’s Request" section has to ask to get the property back. If the action is about the lease being canceled early, it also has to ask for "forfeiture" of the lease.

You can also ask for:

  • General damages: The fair rental value of the property when the defendant was there illegally.
  • Past due rent: Only if you served a 3-Day Notice to Pay Rent or Quit.
  • Court costs: This can be filing fees and what it cost to serve the summons and complaint. (Check the local fee schedule for filing fees.)
  • Lawyer’s fees: Some leases and rental agreements state you can ask for lawyer’s fees if you go to court. You can ONLY ask for lawyer’s fees if the lease or agreement states you can.
  • Damages: Only if the defendant is guilty of malice and only up to a certain limit.
HOW TO COMPLETE THE DISCLOSURE AND VERIFICATION:
Unlawful Detainer Assistant:

You have to state if you paid an assistant to help you. You have to write the assistant’s:

  • Name,
  • Address,
  • County of registration,
  • Registration number, and
  • Date of expiration of registration
Verify the Complaint:

When you sign the complaint you are swearing, under penalty of perjury, that what the complaint says is true. This is called the verification. The court does this so people will not file false complaints.

You have to date and sign the verification.

REMEMBER: if you are having trouble completing the fillable forms, you can use a tutorial forms program.

What to Leave Blank:

Leave the case number blank.


How to Complete the Summons

The Summons (SUM-130)  provides the defendant with important information about how to contest the complaint.

THERE ARE FOUR SECTIONS IN A SUMMONS:
  • The Plaintiff’s and Defendant’s Names: The names of the plaintiffs and defendants must be listed exactly as they are on the complaint. All of the names listed on the complaint must also be listed on the summons; this includes any "DOE" defendants that you named (for example Does 1 to 10).
  • Name and Address of the Court: insert the full name of the Superior Court, including the Justice Center and address. It should match the complaint.
  • Your Name, Address, and Phone Number: It should match the complaint.
  • Unlawful Detainer Assistant Disclosure: you must state if you used an unlawful detainer assistant in item 3. If you did, you must also complete item 6.
What to Leave Blank:

Do not complete the case number, clerk’s name or date. Items 4 and 5 should also be left blank for the server to complete.


How to Complete the Civil Case Cover Sheet

The Civil Case Cover Sheet (CM-010)  is used for statistical purposes only. It is not served on the defendant.

Complete the:

  • Caption: your name, address, and phone number; the court name and address, including the name of the justice center; the abbreviated case name (example: John Smith, etc. vs. John Jones, etc.); check the limited or unlimited box.
  • Item 1: Complete the Unlawful Detainer Section.
  • Items 2 to 5: Complete these items.
  • Date and sign.

How to Get More Information

Figuring out how to properly complete the complaint may be complicated. You can lose your court case if the judge determines that your complaint is defective. The court’s Self-Help Center staff can provide you with general information; however, you may wish to consult an attorney who specializes in Unlawful Detainers. The cost of an attorney may be cheaper than the additional rent and damages you lose if your case is delayed or dismissed for a legal defect.

You can find the location of the Self-Help Centers, Lawyer Referral Services, and online information about landlord-tenant law on the General Information page of the section of the website.


Next Step

Go to the Filing & Serving An Unlawful Detainer Complaint page.


© 2014 Superior Court of Orange County