What is a Response?

In order to properly defend against an Unlawful Detainer action, a defendant has to file a response after the Summons and Complaint is served. The response has to be in the proper legal form. It is not enough to call or write a letter to the landlord. It is also not enough to write a letter to the court. The defendant has to serve you with a copy (usually by mail) and file the response within the deadline.

If the defendant does not file a response, you may be able to evict the defendant without him or her having a say in the case. This may affect the defendant’s ability to rent in the future because he or she will have an eviction on her or her record. If the defendant owes money for back rent and the defendant does not respond, a landlord may be able to collect the money from the defendant’s paycheck or bank account after there is a judgment in place. An eviction may also affect the defendant’s credit record.

There are several steps to take if the defendant does not respond timely. First you must make sure that the defendant’s time to respond is over. Then you may request that the court enters default against the tenant(s). This can be done by filing a Request for Entry of Default. Once the default has been entered the defendant will no longer be allowed to fight the case in court. The landlord can then ask the court for a judgment for possession of the property and the money that is owed by the defendant. The steps are explained in more detail below.

Start of Response Period

The defendant’s deadline to respond starts on the day after the day they were served. The defendants can have different deadlines to respond. They might have been served on different days or in different ways. YOU have to keep track of the deadline for every defendant.

PERSONAL SERVICE:

Personal service means that the summons and complaint was personally served on the defendant. The defendant has 5 days to respond. For example, if the defendant gets the summons and complaint on the 1st, the 5-day period to respond starts on the 2nd and ends on the 6th. You can file for default on the 7th.

SUBSTITUTE SERVICE OR SERVICE BY POSTING AND MAILING:

Substitute service and service by posting and mailing do not end until 15 days after the server mails the papers after substitute service on a third party or posting on the premises. For example, if the server serves the summons and complaint on a third party or posts the documents on the premises on the 31st and then mails a copy of papers on the 1st, you can file for default on the 17th.

HOLIDAYS AND WEEKENDS:

To calculate the five days for a defendant to respond, count Saturday and Sunday, but do not count other court holidays. If the last day falls on a Saturday, Sunday or a court holiday, then you have the next court day to file a written response. For example, if the defendant gets the summons and complaint by personal service on a Monday, the 5th day to respond is a Saturday. So, the defendant has until Monday to respond. You can file for default on Tuesday.

How Do I Know if a Defendant Responded?

When a defendant files a response, they have to have a third party mail or personally deliver a copy of the response to you. You can also contact the court after the time expires to file a response to check. You can do this by calling the courthouse or going in person to the courthouse.

LATE RESPONSES:

If the defendant missed the deadline to respond, they may file a late response. The defendant cannot do this if you already applied for a default. If the defendant files a response on the same day you file your application for default, the court will accept the one that is filed first. If you file your application first, the court enters default and rejects the defendant’s response. If the defendant files first, the court denies your application for default and you must then request a trial for the case to move forward.

What if the Defendant Responds?

If a defendant files a response, it is usually an Answer to the Complaint.

If you want the case to move forward, you may want to fill out a Request to Set Case for Trial-Unlawful Detainer. Someone else must mail a copy of the Request and complete the Proof of Service on the back of the Request. Then file the Request with the court.

The defendant may also respond by filing a Demurrer or Motion to Strike the Service of the Summons and Complaint.

What If I Need an Interpreter?

SELECTING AN INTERPRETER

By law, in California all official court business must be conducted in English. When one of the parties or witnesses in a case does not speak English well, that person will need a court interpreter (who speaks English and the non-English speaker’s first language) so he or she can understand what is going on and talk to the judge.

In some cases (like criminal cases) the interpreter is paid for by the court and may be a court employee. However, in civil cases, with the exception of domestic violence proceedings in Family Law cases, the person needing the interpreter must get and pay for his or her own interpreter or get a friend to help interpret. It is your responsibility to get your own interpreter. You can ask a friend, relative, or someone else to interpret for you when you go to court. Do not ask a child to interpret for you.

Keep in mind that just because someone you know speaks both English and your first language does not mean he or she would be a good interpreter. A court interpreter needs to be familiar with legal terms and concepts in both English and your first language, and most people are not. That is why it is very important you have an interpreter with experience. If you decide to use a noncertified or nonregistered interpreter, such as a friend or relative, have the person read the instructions and duties for interpreting in the information sheet called Foreign Language Interpreter’s Duties-Civil and Small Claims (INT-200).

What if the Defendant Fails to Respond?

If the defendant does not respond, they are in “default.” There are three steps to obtaining a default, judgment for possession of the premises and a monetary award:

• • Step 1: Requesting entry of the defendant’s default
  • Step 2: Requesting judgment for possession of the premises and evicting the defendant
  • Step 3: Request a judgment for monetary damages

STEP 1: REQUESTING ENTRY OF THE DEFENDANT’S DEFAULT

• • • Timing: You must ask the court to enter the defendant’s default if they missed the deadline to file a response.
    • Fill out the form Request for Entry of Default: You must request that the Court hold the defendant in default for failing to respond to the Summons and Complaint. Act quickly. Until you file this form, the defendant can still respond even though their time has expired.
      • File a Proof of Service of Summons and Complaint for each defendant served. You have to prove to the court that you served the defendants with the Summons and Complaint and Prejudgment Right to Possession for “unnamed tenants” if served.
    • Request for entry of default:
      • What the clerk does: The clerk looks at the proof of service of the Summons and Complaint. The clerk has to make sure the defendant missed the day to respond. Next, the clerk looks in the court file to make sure that the defendant did not file a response. If they did not, the Clerk will enter the defendant’s default.
    • Effect of default: If the court enters the defendant’s default, the defendant cannot fight your request for a judgment.
    • Separate defaults: If the defendants were served with the Summons and Complaint on different days, their time to respond will vary. If one defendant missed the deadline to respond, but another still has time left, you can ask for a default for the defendant who missed the deadline. You can then request another default for the remaining defendant when their time to respond expires. OR, you can wait for all the deadlines to pass. Then you can ask for a default for the defendants that do not respond.

STEP 2: ASK FOR RESTITUTION OF THE PREMISES AND EVICTION

• • • If some of the defendants respond: If some of the defendants answer, you cannot get a default judgment until you have a trial (see above) and prove your case against the defendants that responded.
    • If you did not serve the people who are not named: If you chose not to serve a person on behalf of “unnamed tenants” you can ask for a default judgment for restitution of the premises at the same time that you request the default of all of the named defendants.
    • If you served the people who are not named: If you served a person on behalf of “unknown tenants” with a Summons, Complaint, and Prejudgment Claim of Right to Possession, you have to wait for the deadline for an unnamed tenant to file a Prejudgment Claim. The unnamed tenant has 10 days from the date of service to file a Prejudgment Claim of Right to Possession.

STEP 3: ASK FOR MONEY DAMAGES

• • • Timing: Typically, money damages are requested after the defendants have moved out or been evicted by the Sheriff so that the full amount due can be figured.
    • Fill out the form Request for Court Judgment: This is the same form you used to ask for Entry of Default for a Clerk’s Judgment. You are now using this form to request a judgment for money damages.
    • Fill out the form Declaration For Default Judgment by Court: You have to give the court a sworn declaration that proves the money you ask for.
    • Fill out the form Judgment – Unlawful Detainer: You have to have a judgment to award money damages. This is the same form that you used to obtain a Clerk’s Judgment for possession of the premises. You use the same for to request that the Court award money damages.
    • File the forms with the court.

Enforcing a Money Judgment

This section is under construction.

If the Defendant Moves Out before the Case Is Over

If you have already filed the unlawful detainer papers at court, and the tenant moves out before the trial, you have 2 choices:

• • 1. Dismiss the case, OR
    2. Ask the court to convert the case to a regular civil case for damages to collect back rent in the amount requested in the unlawful detainer complaint

To request a dismissal of the case, file a Request for Dismissal.

If you do not dismiss the case or ask that it be changed to a regular civil case for damages, the defendant may go to the trial and ask the court to dismiss the case because he or she has already moved out. If the defendant wins, he or she may get an award of costs for having to come to court for the trial when the case should have been converted to a regular civil case or dismissed.

My Eviction Team Handles This Step in the Process for You*

Figuring out how to properly obtain a judgment to evict the defendant can be complicated. Completing the paperwork incorrectly can delay the eviction.

Next Step

Go to the Settling Out of Court page.