ANSWERING AN EVICTION COMPLAINT - PDF by kpt12551

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									ANSWERING AN EVICTION
     COMPLAINT
                              A Self-Help Guide




Legal Aid Foundation
of Santa Barbara County



301 E. Cañon Perdido Street     301 S. Miller St., Suite 116
                                                               106 S. “C” Street, Suite A
Santa Barbara, CA 93101         Santa Maria, CA 93454
                                                               Lompoc, CA 93436
Voice: (805) 963-6754           Voice: (805) 922-9909
                                                               Voice: (805) 736-6582
Fax: (805) 963-6756             Fax: (805) 347-4494
                                  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.




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                         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




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                                   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.)

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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 agreed-
    upon 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 (730-1523), or the
    Community Mediation Program (963-6765). 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 93101. 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) 568-2740. 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


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    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
                   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                                      Tenant Does
“Answer” within                                    Nothing within 5
    5 Days                                              Days
Tenant Receives
  Request for                                      Tenant Receives
  Setting, Trial                                   Request to Enter
     Notice                                            Default

“Readiness and
  Settlement                 Settle
 Conference”

 Trial Within 20     Motion to Vacate Default
      Days            and Default Judgment


                                                 Default Judgment
                                                 Entered in Favor of
 Judgment For                                         Landlord
    Tenant
                                                  Tenant Receives
                                                   Sheriff’s 5-Day
                      Judgment for                 Eviction Notice
 Tenant Stays           Landlord
                                                 Sheriff Evicts Tenant



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        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. 01-01-02)

                      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.


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  •   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.




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                  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 __________, 20____.



______________________________________
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                                      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.

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           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.




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