ANSWERING AN EVICTION COMPLAINT

Transcription

1 ANSWERING AN EVICTION COMPLAINT A Self-Help Guide Legal Aid Foundation of Santa Barbara County 301 E. Cañon Perdido Street Santa Barbara, CA Voice: (805) Fax: (805) S. Miller St., Suite 116 Santa Maria, CA Voice: (805) Fax: (805) S. C Street, Suite A Lompoc, CA Voice: (805)

2 LEGAL AID FOUNDATION EVICTION DEFENSE POLICY The Legal Aid Foundation of Santa Barbara County provides this Landlord/Tenant packet for tenants who seek to represent themselves in eviction actions. However, Legal Aid discourages the filing of Answers that have no meritorious defenses. The Legal Aid Foundation cannot represent a tenant who does not have a meritorious defense and/or where our assistance will only delay an eviction and result in a waste of the court s time. The fact that Legal Aid does provide a tenant with some type of assistance does NOT mean that we will represent a tenant in an eviction case. Due to recent and continuing cutbacks in funding, our office can provide representation in only very few eviction cases. Legal Aid tries to handle those cases where there are serious health and safety violations, discrimination or retaliation. For this reason, we have completed this handout that will prepare you to be your own advocate and representative. In the past, many tenants have represented themselves and have often won because they were prepared to present and argue their cases. 2

3 HOW TO USE THIS PACKET Read all of the instructions carefully. You should fill out the forms in this packet and file your Answer. If you want to challenge the eviction or anything else in the complaint, you must file an Answer in order to get a court hearing. Even if you plan to move out soon, you may want to file an Answer and attend the court hearing in order to avoid a judgment which could damage your credit. IF YOU DO NOT FILE AN ANSWER, YOU CAN BE EVICTED AS SOON AS 10 (TEN) DAYS AFTER BEING SERVED WITH THE SUMMONS AND COMPLAINT 3

4 EVICTION PROCEDURES THE UNLAWFUL DETAINER CASE With very few exceptions, a landlord can only evict a tenant by following certain legal procedures. STEP 1: A landlord must first give you a WRITTEN NOTICE telling you that he intends to end your tenancy. There are several types of written notices a landlord can give you: a. THREE-DAY NOTICE TO PAY OR QUIT" The landlord is giving you the option of paying the rent you owe within 3 days or move out. The Notice is normally given because the landlord believes you owe him past due rent. NOTE: The notice must state the EXACT amount of rent that you owe, and for what month you owe it. b. THREE-DAY NOTICE TO PERFORM COVENANT OR QUIT A "covenant" is an agreement between you and the landlord to do something, or refrain from doing something. Some examples of a breaking a covenant are making too much noise or other disturbances created by you or having a pet when no pets are allowed under your lease, etc. The landlord is giving you a choice to stop doing what the notice says you are doing wrong ("perform the covenant ) or move out. c. THREE-DAY NOTICE TO QUIT FOR NON-CURABLE BREACH This Notice is normally served because the landlord thinks you are damaging or destroying parts of the premises, or using the premises for an unlawful purpose. Here, the landlord is saying that you do not have a choice to fix what you have damaged. In this case, the landlord just wants you to move out. d. THIRTY-DAY NOTICE OF TERMINATION OF TENANCY This Notice tells you that the landlord want you to move out within 30 days of receiving the notice. With very few exceptions, the notice does not have to state a reason for ending your tenancy. In Santa Barbara County, we do not have a just cause law, so a landlord can evict you without stating any reason at all, so long as he gives you the required 30 days written notice. However, as stated in more detail later, the landlord cannot give a 30-day notice to retaliate against you or to discriminate against you. [continued on next page] NOTE: To be legally effective, the Notice must be properly served on you. This means that first the landlord or his agent must try to find you and give it to you. If he can't find you at your home or work, his next option is to hand it to a "person of suitable age and discretion" at your home or work and also mail a copy to you. If he can't find someone at your home or work to leave it with then he may serve it on you by the "nail and mail method. This means that he can post a copy of the Notice in a visible place on your house or apartment, such as the front door, notify anyone living at your home if he can find someone, and mail another copy to your address. (Note: if the Notice is for increase in rent, the landlord has the choice of posting a copy of the Notice in a visible place on your house or apartment or mailing a copy to your address.) 4

5 STEP 2: The landlord must wait the required number of days (three or thirty days, depending on the type of notice) for you to do what he demands in the notice. Then, if you do not comply, he must file an Unlawful Detainer Complaint in the Superior Court and have a copy of the Complaint served on you. Again, the Unlawful Detainer Complaint must be properly served on you. However, the nail and mail method cannot be used for service of the Complaint. With very few exceptions, you must be personally served with the Complaint. STEP 3: After you are personally served, if you intend to oppose the eviction, you must file a written Answer to the Complaint with Superior Court within five calendar days of being served. The five days begin with the day after you receive the Complaint. This guide provides help on how to prepare and file such an Answer. Example: If you are served with the Complaint on a Tuesday, then Wednesday is the first day and Sunday is the fifth day. But since the fifth day is on a weekend and the court is closed, you can file your Answer the next day, Monday. If you do not file an Answer, the landlord may take a default against you. That means that after the five days are up, the landlord can get a Judgment against you from the Superior Court and can have you removed from your house (if necessary) within a few days. SOME POSSIBLE RESPONSES TO THE UNLAWFUL DETAINER COMPLAINT: Option 1: You may decide to do nothing. If you don t do what is demanded in the notice, and you don t file an Answer to the Complaint with the Superior Court, you will probably be evicted by the Sheriff s office in a few days. Option 2: Try Mediation or negotiation. You may be able to work something out, like an agreedupon move-out date. Try talking to your landlord or his attorney to see if they would be interested in mediating through the City of Santa Barbara Rental Housing Mediation Task Force ( ), or the Community Mediation Program ( ). Be careful to get a written extension of time to answer the Complaint from your landlord if necessary. Option 3: File an Answer to the Unlawful Detainer Complaint If you do file an Answer, your Answer must be received by the Superior Court Clerk by 3:00 p.m. of the fifth day. If the fifth day is a legal holiday or a weekend, you have until 3:00 p.m. on the next weekday to file your answer. The Superior Court is located at 1100 Anacapa St., Santa Barbara, California To be safe, file your Answer in person at the Court. You can still file your Answer after the fifth day so long as your landlord has not requested that default be entered against you. You can find out if default has been entered by calling the Superior Court Clerk's office at (805) If you have a good excuse for not responding within the 5-day period, and you have a valid defense to the Unlawful Detainer Complaint, you may be able to have a default judgment thrown out and still have your day in court to present 5

6 your case. You must file a Motion to Set Aside Default and Default Judgment, along with an Answer to the Complaint. AFTER YOU FILE YOUR ANSWER: WHAT HAPPENS BEFORE TRIAL? 1. You may get a Request for Setting in the mail. This form is filed with the Court, usually by the landlord, asking for the Court to set a date for the trial in your case. California law says that the trial should be no more than 20 days from the date the complaint was filed. 2. You will receive a Notice of Trial from the Superior Court. This notice will provide the dates of two court appearances you must attend. First is the date for the "readiness and settlement" conference. Attendance at this conference is mandatory, and the court can fine you $750 for not attending. You will not have the opportunity to preset evidence or argue your case to the Judge at the settlement conference. The trial will take place about one week after the readiness and settlement conference if the case is not settled. 6

7 EVICTION PROCESS FLOW CHART Tenant Received 3-Day or 30-Day Notice Settle Tenant Receives Summons and Complaint for Unlawful Detainer Settle 5 Days Tenant Files Answer within 5 Days Tenant Receives Request for Setting, Trial Notice Tenant Does Nothing within 5 Days Tenant Receives Request to Enter Default Readiness and Settlement Conference Trial Within 20 Days Settle Motion to Vacate Default and Default Judgment Judgment For Tenant Tenant Stays Judgment for Landlord Default Judgment Entered in Favor of Landlord Tenant Receives Sheriff s 5-Day Eviction Notice Sheriff Evicts Tenant 7

8 THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA BARBARA 1010 ACCEPTANCE OF CERTAIN HAND-PRINTED DOCUMENTS AND FORMS All documents shall be typed except for the following that may be printed by hand, not cursive, in black or dark blue ink: Domestic Violence, Harassment, Family Code Restraining Orders, documents from incarcerated prisoners, or any document directed by a Judge of the Superior Court. If any handprinting is not legible, the Clerk will reject the document. The Superior Court hereby establishes acceptance of the following hand-printed forms on a pilot basis: The Clerk s office will accept for filing Judicial Council and local court forms printed by hand, not cursive, in black or dark blue ink, for Family Law, Unlawful Detainer and Small Claims cases, in addition to a fee waiver form for any case type. The Clerk s office will also accept handprinted, not cursive, text of up to 5 lines. If any printing by hand is not legible, the Clerk will reject the form. At the conclusion of six months from the amended date of this rule, the court will decide whether or not to repeal the pilot portion of the rule and/or to amend or make it a permanent rule. All other papers shall conform to these rules and the California Rules of Court, and shall be typewritten. (Adopted, eff ) SAMPLE ANSWER FORM AND INSTRUCTIONS (Page 1) FORMS MAY BE TYPED OR HANDWRITTEN Type your name and address and your phone number. Type In Pro Per This lets the court know you will be acting as your own attorney. The plaintiff is your landlord. (Sometimes it s the property management company.) Look at the Unlawful Detainer complaint for this information. The defendant is you. If there are additional defendants names on the Unlawful Detainer complaint, put their name here too. The name of the person who is filing this Answer (usually it s you). Note that each defendant must file his/her own Answer and fee waiver forms. 8

9 If the Unlawful Detainer complaint states that you are being sued for $1000 or less, you may check box a. If you are being sued for more than $1000, check box b and put the numbers of the paragraphs from the complaint which you believe are false. Fill in the space after (1) for those statements which you believe are false. Fill in the space after (2) for those statements which you have no information to admit or deny. Read each affirmative defense very carefully and check the box for the defense(s) which apply to you. SAMPLE ANSWER FORM AND INSTRUCTIONS (Page 2) FORMS MAY BE TYPED OR HANDWRITTEN Write in the facts that describe your defense(s) so that the judge will have an idea of what your defense is. Be sure to put the letter of the defense (such as a., h., i. ) before the fact that it belongs to. This can be found on page 1, item #3 (under AFFIRMATIVE DEFENSES ). If you need more space, check one of these boxes and attach an extra sheet of paper called Attachment 3j. : If you are putting all the facts on Attachment 3j, check box 1. If you are going to start on the form and continue to Attachment 3j, check box 2. If you have already moved out, check box a and state the date. If you believe the rent charged is too much, check box b and explain, e.g. cockroaches, unsanitary, etc. Check box c if your rental agreement has an attorney fees clause. Check d if it applies to your situation. Check box 6 if you have attached any pages and put down the number of pages you have attached. Print or type your name on the dotted line and SIGN your name on the solid line. Each defendant must sign. Don t forget to date and sign the verification. 9

10 HOW TO COMPLETE A PROOF OF SERVICE FORM A copy of your Answer to the Unlawful Detainer complaint must be mailed to the landlord's attorney (or to the landlord if he or she is unrepresented). The address to mail the copy of the Answer to is at the top of Page 1 of the Unlawful Detainer complaint. Important: you cannot mail or hand-deliver it yourself! Any person over the age of 18 who is not a party in your eviction case can serve the copy of the answer. That person must complete the proof of service form. You may use the form in this packet. The original Proof of Service, signed by the person who does the mailing (or hand delivery) should be attached to the original Answer which is filed at the Superior Court. PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA I am employed in the County of Santa Barbara, State of California. I am over the age of eighteen and not a party to the within action. My business address is On, 20, I served the foregoing documents described as: ANSWER-UNLAWFUL DETAINER on interested parties in this action by placing a true copy thereof in a sealed envelope addressed as follows: I deposited such envelope in the mail at: The envelope was mailed with postage fully prepaid. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in Santa Barbara, CA on,

11 WAIVER OF COSTS The court charges a $143 filing fee for each defendant in the Answer. However, if you cannot afford this fee, you may be able to qualify for this fee to be waived. To see if you qualify, look at the information sheet with the title INFORMATION SHEET ON WAIVER OF COURT FEES AND COSTS on the next page. If you think that you qualify, you must fill out the APPLICATION FOR WAIVER OF COURT FEES AND COSTS and provide your information on the ORDER ON APPLICATION FOR WAIVER OF COURT FEES. Instructions for these forms are on the following pages. Once you hand in the application to the Superior Court, they will decide if the costs will be waived and use the form for the order to give you their decision. Remember, each defendant in the Answer must file both forms if he or she wants the filing fee to be waived. SAMPLE APPLICATION FOR WAIVER OF COURT FEES (Page 1) FORMS MAY BE TYPED OR HANDWRITTEN Type/write your name, address, phone number in here. Also type/write in the name and address of the court. This part should be the same as on the Unlawful Detainer Answer form you have filled out. Check the appropriate box. Type/write your address. Type/write your date of birth here. If you are employed, provide this information. If you are receiving assistance through any of these programs, check the appropriate box/es, and sign and date the form at the bottom. No further info is necessary. Check box 6 if your before-tax income is less than that shown on the Information Sheet on Waiver of Court Fees in this packet. Skip box 7 and fill out 8 and 9a, 9d, 9f and 9g on the back (page 2) of this form. Check box 7 if your income is more than that shown on the Information Sheet, but you still can t afford to pay the filing fees. You must fill out the entire back of this form. Sign and date the form here. Begin with Question 8. 11

12 SAMPLE ORDER ON APPLICATION FOR WAIVER OF COURT FEES (page 1) FORMS MAY BE TYPED OR HANDWRITTEN Type your name, address and phone number in here. Also type/write in the name and address of the court. This part should be the same as on the Unlawful Detainer Answer form you have filled out. The Clerk of the Court will fill out the rest of this form after you file it. This form is the one where the Judge tells you if your fees will be waived. It will be sent back to you in the mail. SAMPLE ORDER ON APPLICATION FOR WAIVER OF COURT FEES (page 2) On this side, all you have to fill out is the top part: with your name, the landlord s name, and the case number. The Clerk of the Court does the rest. 12