Ask for a trial or default judgment

After you serve your tenant with the Summons and Complaint forms, your tenant has 5 days to file a response with the court (or 15 days if they weren't served in person). Depending on how (and if) they respond, you have some options for next steps.

1. Wait to see how your tenant responds

After your tenant is served the Summons and Complaint forms, they have 5 days to file a response with the court. The 5 days don't include Saturdays, Sundays, or court holidays. 

If your server handed the forms to your tenant (even if they refused to take them and your server had to leave them nearby), your tenant has 5 days to file an Answer

Your tenant gets more time to file an Answer if your server

  • Gave the forms to someone else at your tenant's home or work and then mailed a copy to your tenant (this is called substituted service)
  • Posted a copy at your tenant's home and then mailed a copy to your tenant (this is called service by posting

If your server used substituted service or service by posting your tenant has 15 days after the server mailed the Summons and Complaint to file an Answer instead of 5 days.

  • The mailing date is the postmark date
  • Day 1 is the day after the server mailed the Summons and Complaint to your tenant
  • For the first 10 of the 15 days, count regular calendar days (every day, including weekends and holidays). The 10th day is the day your tenant is considered served
  • Then you count 5 court days. For these 5 court days do not count Saturdays, Sundays, or court holidays. The 5th day is your tenant's deadline to file an Answer form

If they don’t file an Answer by the deadline, the next day you can file forms asking the judge to order your tenant to move out.

If your tenant does not file a response on time, on the 6th day you can file forms asking the judge to order the tenant to move out. This is called a default judgment. The tenant can file an response any time before you file to ask for a default judgment, so it's best to ask for one as early as you can.

At any point, if you and your tenant work something out, you can talk or get help from a mediator to come to an agreement without going to court (or in addition to going to court).

2. Decide what to do

What you can do next, depends on what your tenant did. 

If your tenant does not file any response by the deadline, you can ask for a default. The tenant can file an Answer any time before you file to ask for a default, so it's best to ask for one as early as you can.

Once you have a default, you can ask for a Clerk's Judgment of Possession to get your property back.

If your tenants were served with the Summons and Complaint on different days, they will have different deadlines to respond. If one tenant missed the deadline to respond, but another still has time left, you have two options:

  • You can ask for a default for your tenant who missed the deadline. You can then request another default for another tenant when their time to respond expires.
  • You can wait for all the deadlines to pass. Then you can ask for a default for all the tenants that do not respond.

How to ask for a default and clerk's judgment to get your property back (possession)

To ask for a default judgment for your tenant to move out right away (clerk's judgment for possession), fill out and file:

  • Request for Entry of Default (form CIV-100)

    Before you can file this form, you need to mail a copy to each tenant. Once you file this form, your tenant can't file an Answer.

  • Judgment-Unlawful Detainer (form UD-110)

    This is a form to ask the judge to order that you have the right to have your home back. On the form, check "By Clerk", "By default", and "Possession only". If the clerk sees that you've done everything right, they can file it and give it to you very quickly. Some courts use a different form for this. Check with the court clerk to see if you have to use a local form.

  • Writ of Possession of Real Property (form EJ-130

    This is the form you give to the sheriff to evict your tenant.

If you are asking to evict your tenant because they owe COVID-19 rental debt, you must also fill out and file a Verification by Landlord Regarding Rental Assistance - Unlawful Detainer (form UD-120).

Some county courts also have their own forms to fill out so make sure to check with them.

Bring the forms to the court clerk to review. There's a fee to issue the Writ of Execution. If you can’t afford the fee, you can ask for a fee waiver. If everything is in order, the clerk will file your Request and Judgment, and stamp the Writ. 

After you've received the forms back from the clerk, take the Writ to your county sheriff's office. This allows the sheriff to evict your tenant. Before you take the Writ to the sheriff's office, call them or visit their website to find out what instructions they need from you to get started.

If you're also asking your tenant for money

You won't be able to include back rent in this Clerk's Judgment for Possession. You can ask for the money you're owed in a separate default money judgment.

The court takes longer to process judgments asking for back rent. If you want your tenant to move out as quickly as possible, file the Clerk's Judgment for Possession first. Then the judgment forms asking for back rent.

How to ask for a default judgment for money owed

 

If your tenant files an Answer form

This means they’re going to participate in the lawsuit and fight the eviction or at least be able to tell their side of the story in court. 

If the tenant files an Answer, they need to send you a copy. You can also go to the courthouse and look up the case if you haven’t gotten anything in the mail from the tenant and want to find out if they did or didn’t file an Answer.

How to ask for a trial date

If your tenant files and serves you with an Answer, file a Request to Set Case for Trial-Unlawful Detainer (form UD-150) at the clerk's office if you want to move your case forward.

You also have to serve the tenant by mail with a copy of the Request and have the server fill out the proof of service on the back of the Request form.

The court clerk will then mail you a letter with your trial date.

Your tenant can also file a Counter-Request to Set Case for Trial-Unlawful Detainer (form UD-150) if they disagree with the Request you filed or, for example, want to ask for a jury trial if you didn't.

 

You and your tenant both have a right to ask for a jury trial. It costs $150, unless you file a fee waiver. There may be other costs, too, depending on your court. To ask for a jury trial you fill out that section on the Request to Set Case for Trial - Unlawful Detainer form. If you don't, your tenant can still file a Counter-Request to Set Case for Trial-Unlawful Detainer (form UD-150) to ask for one. Get legal help if you either of you has asked for a jury trial.

 

In some cases, a tenant might file a motion 

If your tenant thinks your Complaint was filled out wrong or was served wrong, they might file to ask the court to do something about it instead of filing an Answer. These actions are called a Motion to Quash Service or a Demurrer.

Get legal help if your tenant filed a motion to quash or a demurrer

Demurrer
A Demurrer is filed by the tenant to say the Complaint doesn’t include all the facts or legal requirements to prove they should be evicted. A Demurrer can delay the case by a few weeks, and if the tenant wins, you might have to start the case all over or even have to give the tenant a new Notice.

Motion to Quash Service
A Motion to Quash Service is filed when the tenant says that the landlord didn’t serve the Summons and Complaint properly. If the tenant wins, the landlord has to re-serve the Summons and Complaint. If the landlord wins, the tenant will have to file an Answer to the Complaint right away.

 

If the tenant files either a Motion to Quash Service or a Demurrer, you should get legal help because there are steps you need to take to avoid slowing down the case, to fix any problems, and continue with the case.

 

If the tenant moved out or you and the tenant agreed to close the case

If the tenant already moved out, you have to close (or dismiss) your eviction case. If you are owed back rent, you can file a small claims or civil case for the money instead,
If you and the tenant have an agreement, you can also dismiss your case. If your tenant hasn't done what they agreed to do yet, you can ask the judge if they can move your trial date (continue it). This gives you more time to make sure your tenant has done everything they promised before you dismiss the case.

How to dismiss your case

If your tenant filed a COVID-19 Declaration of Financial Distress, the court will set a court date. At the court date, the judge will decide whether or not your tenant had a good reason (called good cause) for not turning in the Declaration on time after you gave them Notice.

If the judge decides they have good cause, then your evict case will not go forward at this time. Find out what happens if the judge allows your tenant to turn in a Declaration

If the judge decides they did not have good cause, the your eviction case can move forward.