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Civil Court
Landlord/Tenant: Filing and Serving the Unlawful Detainer Complaint
[Esta página está en español;
Trang này bằng tiếng Việt]
- Fill out your summons
- Figure out where to file the complaint
- Figure out if it’s time to file the complaint
- Go to court to file the complaint
- Pay the filing fee or get a fee waiver
- What if there are other people living there?
- Get ready to serve
- Ways to serve
- Follow up
 Get
help filing out Unlawful Detainer forms!
Click here to find out about "EZ Legal File" - an
online interactive (question/answer) free form generator for
UD forms.
- Fill out your summons
Fill out the
summons before you
file
the
complaint. You’ll serve this summons with the complaint. The summons tells
the
defendant when they have to file a
response by.
For an Unlawful Detainer, you have to fill out the summons on Judicial Council
Form SUM-130. This gives the defendant 5 days to answer.
- What to fill out
You have to fill out:
- The name and address of the court where you file the complaint
- The name, address and phone number of your lawyer. This is the lawyer
who represents you in this
action.
If you don’t have a lawyer, write your own name, address and phone number
- Did you pay an Unlawful Detainer assistant to give you advice or help
with the summons. If you did, write the assistant’s name, address, phone
number, the county they’re registered in, registration number, and date of
expiration of registration.
- What to leave blank
Leave the
case number
blank. The clerk will fill that in when you file the complaint. Also leave
the Notice to the Person Served blank. The person who serves the summons and
complaint fills this out when they serve the summons and complaint.
- Figure out where to file the complaint
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 file the action in the
right branch of the right county. top of page
↑
- 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 venue for your case is Santa Clara County if your property is in:
- Palo Alto,
- Santa Clara,
- Milpitas,
- San Jose,
- Los Gatos,
- Los Altos,
- Monte Sereno,
- Cupertino,
- Sunnyvale,
- Mountain View,
- Los Altos Hills,
- Alviso,
- Campbell,
- Gilroy,
- San Martin, or
- Morgan Hill.
- Sub-Venue:
Sub-venue means what branch to file your action in if the county has more
than one branch.
In Santa Clara County, if the property is in Gilroy, Morgan Hill or San
Martin, file your complaint in South County. The South County branch is in
San Martin.
If it’s somewhere else, file in the San Jose branch. The San Jose branch is
at 191 North First Street, San Jose.
- Figure out if it’s time to file the complaint
- If you served a 3-day, 30-day or 60-day notice:
If you served a 3-day, 30-day or 60-day
notice,
you can’t file the complaint unless the notice ended and the defendant
didn’t do what the notice asked. Use these rules to figure out if the notice
ended: top of page
↑
- Day the Notice started - The notice starts the
day after the notice is served.
- Weekends and Holidays - Weekends and
holidays count as days unless it’s the last day of the notice.
For example: If you serve a 3 Day Notice to Pay Rent or Quit on a Friday,
the weekend counts because the last day isn’t on a weekend. Monday counts
unless it’s a legal holiday. So, if you serve a 3-day notice on Friday,
you can usually file a complaint on Tuesday.
If you serve a 3-day notice on a Wednesday, the last day to do what the
notice asks for is Saturday. But Saturdays and Sundays are legal holidays.
So, they don’t count as the last day. So, if you serve a 3-day notice on a
Wednesday, you can file your complaint on Tuesday.
- Extend the Notice– If you serve a 3-day notice by
"nail and mail" or substitute
service,
some judges say you have to give the person 5 more days to answer. Not all
judges say that, though.
- If you did not serve a 3-day, 30-day or 60-day notice:
If you didn’t serve a 3-day, 30-day or 60-day notice, make sure you didn’t have to.
There are only 3 times when you can file an Unlawful Detainer without
serving a 3-day, 30-day or 60-day notice. This isn’t common.
If you have to serve a 3-day, 30-day or 60-day notice for your case and you don’t, or
if you file the complaint before the notice ends, you lose the case
automatically. You’ll have to pay the tenant’s lawyer’s fees and costs.
- Go to Court to file the complaint
- What to bring:
Bring the original and 2 copies of the summons and complaint. The original
has to be 2 hole punched. The Rules of Court say that all papers have to
be 2 hole punched. The clerk won’t file a paper that’s not 2 hole punched.
- How to handle the complaint:
The clerk will stamp the original complaint with a case number and the
word "Filed". Then the clerk will sign it in ink. The copies have a stamp
that says "(Endorsed) Filed" or "Filed". They won’t be signed. The clerk
keeps the original complaint so it can go in the court file. The clerk
gives you the copies.
- How to handle the summons:
The original summons has a stamp with the case number, the clerk’s
signature and court seal. The clerk will sign it in ink. The copies have a
stamp with the case number and clerk’s signature. They won’t have a court
seal. The clerk won’t sign them in ink. The clerk gives you the original
and copies.
top of page
↑
- Pay the filing fee or get a fee waiver
- How much you have to pay:
In general, you have to pay the
filing fee
when you file the complaint. How much you pay depends on what kind of case
it is. Check the list of
filing
fees at the court's main website.
- Get a fee waiver:
For an Unlawful Detainer, most plaintiffs
can’t get a
fee waiver.
You can get a fee waiver if you get money from one of these programs:
- SSI and SSP: Supplemental Security Income and State Supplemental
Payments Programs
- CalWORKS: California Work Opportunity and Responsibility to Kids
Act, implementing TANF, Temporary Assistance for Needy Families (formerly
AFDC)
- Food Stamps: The Food Stamp Program
- County Relief, General Relief (G.R.), or General Assistance (G.A.).
Whether or not you can get a fee waiver depends on how much money everyone
in your household makes and how many people are in our household.
Click here to learn about fee waivers.
You can get a fee waiver if you don’t make enough money to pay for your
everyday needs, what the people you support need AND pay for court fees and
costs.
If you think you can get a fee waiver, ask the clerk for:
If you still think you can get a waiver after you read the forms, fill them
out and return them with the complaint. You won’t have to pay the filing fees
yet.
- What if there are other people living
there?
If there are people living at the property that you didn’t name in the
complaint, you have 2 choices. Ask a lawyer what choice is best for your case.
- Do nothing:
If you do nothing, even if you win, the people who aren’t named in the
complaint don’t have to leave right away. The
judgment
you get in the case might not apply to the people who aren’t named. When the
sheriff posts the eviction notice, they can file a claim. This is called a
post-judgment claim of right to possession. The eviction can be delayed.
- Serve them:
You can serve the people you didn’t name with the Summons, Complaint and a
Prejudgment Claim of Right of Possession. Then they can add themselves to
the action as defendants. To do this, they have 10 days to file a claim.
If they don’t file a claim, the judgment you get in court will apply to
them. They can’t file a post-judgment claim of right to possession. The
only problem with this is that you can delay the start of the case.
top of page
↑
- Get ready to serve
- Who can serve:
If you want to serve the people you didn’t name in the complaint, you have
to hire a registered
process server.
If not, you can get anyone over 18 who’s NOT a
party
in the case to serve the defendants. You can’t serve the summons and
complaint. You can hire a process server to make sure the defendants are
served right.
- What to give the Process Server:
Give the process server 1 endorsed copy of the complaint and 1 copy of the
summons.
The process server can ask you for more copies. Keep the original. File the
original after the process server serves the defendants.
If you want to serve people who aren’t named in the complaint, you have to
hire a registered process server. Tell the process server to serve the
people living at the property with the:
- Summons,
- Complaint, and
- A Prejudgment Claim of Right of Possession.
- Ways to serve
There are 5 ways to serve the defendants:
- Personal service
- Substitute service
- Mail a notice and acknowledgment of receipt
- Posting and mailing
- Certified mail
- Personal service:
This is when the process server gives a copy of the summons and complaint to
the defendant in person. This is the type of service the court likes the
most. It’s valid on the day it’s delivered.
A defendant can’t avoid personal service by not taking the summons and
complaint. The server just has to say they’re a process server and tell the
defendant they’re being served. Then they can leave the papers as close to
the defendant as possible.
If the process server can’t tell if the person who refuses the paper is the
defendant, they can do a substitute service.
- Substitute service:
In general, the process server has to:
- Give a copy of the summons and complaint to an adult who’s in charge
where the defendant lives, and
- Mail another copy of the summons and complaint to the defendant at the
same place where you left the first copy.
You can’t use substitute service until process server tried 2 or 3 times
to serve the defendant in person. Substitute service is complete 10 days
after the process server mails the summons and complaint. top of page
↑
- Mail a notice and acknowledgment of receipt:
This is when you mail a copy of the summons and 2 copies of a Notice and
Acknowledgment of Receipt
(Form POS-015). You also have to send a return envelope addressed to the plaintiff
with stamps on it. The service is complete only if the defendant fills out
the “acknowledgment of receipt” and mails it back to you.
If the defendant doesn’t sign and return the acknowledgment form in 20
days, you can try another way to serve them. You can charge them for the
extra cost of serving them, even if you lose the case.
This type of service isn’t recommended for Unlawful Detainer cases because
it takes a lot of time and it doesn’t work all the time.
- Posting and Mailing:
You can only use this type of service in Unlawful Detainer cases and ONLY if
you get permission from the court.
To apply you have to have a declaration
from the process server that says they tried to serve the defendant in
person and by substitute service.
If the court gives you permission, the process server posts a copy of the
summons and complaint at the property in a way that the tenant’s most likely
to see and sends a copy by certified mail to the last place the defendant
lived. This service is done 10 days after you post and mail.
- Certified mail:
This type of service is only for Unlawful Detainer cases. You can only use
it if:
- You served the defendant with a “Notice of Belief of Abandonment” AND
- The defendant served you with a written “Notice of Intent Not to
Abandon”.
The process server can mail the summons and complaint to the defendant by
certified mail. They have to send it to the address on the defendant’s
Notice of Intent Not to Abandon. If the defendant didn’t write an address on
the notice, send it to the same address where they served the Notice of
Belief of Abandonment.
This only works if you serve the defendant no more than 60 days after you got
their Notice of Intent Not to Abandon. The service is complete 10 days after
the server mails the forms mailing.
- Following up
- Get proof of service from process server:
You have to follow up with the process server. The server has to give you a proof of service
for every defendant as soon as possible. The proof of service has to say:
- The name of the defendant served,
- The person who got the summons and complaint and that
person’s relationship to the defendant
- The address where they served the forms
- What kind of service they used, and
- How they did what the Notice to the Person Served asks
for.
- The name, address and phone number of the process
server,
- If the process server charged to serve the files
- If the process server is registered. If they are, it has
to say all the server’s registration information
- The process server has to sign the Proof of Service
under
penalty
of
perjury.
- File summons and proof of service:
The original summons is very important. It proves what the notice you gave
the defendant says. It lets the court decide if the defendant was properly
served. The court can also tell if the defendant was served on time, and
when they have to file their answer by.
File the original summons and proof of service once you have at least one
defendant’s proof of service. Keep a copy for yourself. You’ll have to file
a proof of service for every defendant. top of page
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