Filing and Serving Unlawful Detainer Complaint

To File the Case

You must file your documents at the proper courthouse or you may e-File your documents.

What to prepare:

Prepare the original Summons and Complaint and Civil Case Cover Sheet .

Filing the forms: You may submit your documents for filing at the proper courthouse, or you may electronically file your documents. The clerk will file stamp the forms with a case number and the word "Filed". After the forms are filed, the clerk will return “Filed” copies to you.

In addition to the Self-Help Centers, if you need access to a computer to eFile, you can find public computers at most public libraries and at the Public Law Library.

• Orange County Public Libraries: http://www.ocpl.org/libloc/
• Orange County Public Law Library: http://www.ocpll.org/loc_hours.html

Pay the Filing Fee or Get a Fee Waiver

FILING FEE:

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 for limited civil-unlawful detainer actions if the amount requested is $25,000.00 or under. If the amount is over $25,000.00, check the filing fees for an unlimited civil-unlawful detainer complaint.

FEE WAIVER:

If you cannot afford the filing fees, you may qualify to have the fees waived by filling out a Request to Waive Court Fees. You can read more about fees waivers and the forms needed.

What if There Are Other People Living There?

If there is a possibility that there are people living at the property that you did not rent the property to or name in the complaint, you have 2 choices. Ask a lawyer what choice is best for your case.

DO NOTHING:

You can serve the defendant with just the Summons and Complaint. Even if you win, the people who are not named in the Complaint do not have to leave right away. The judgment you get in the case might not apply to the people who are not named. When the Sheriff posts the eviction notice, they can file a claim. This is called a Claim Of Right To Possession (CP 10 . The eviction can be delayed.

SERVE A PREJUDGMENT CLAIM OF RIGHT OF POSSESSION:

You can serve the Summons, Complaint and a blank Prejudgment Claim of Right of Possession (CP 10.5) on one of the defendants on behalf of "unnamed occupants." The occupants who are not named in the complaint can add themselves to the action as defendants. To do this, they have 10 days to file the Prejudgment Claim with the court. If they do not file a Prejudgment Claim, the judgment you get in court will apply to them. They cannot file a post-judgment claim of right to possession. This does, however, delay the time in which you can obtain a judgment to evict from 5 days to 10 days.

Serving the Summons and Complaint

WHO CAN SERVE:

The fee to serve the document depends on who you have serve the documents.

You cannot serve your claim. Service must be performed by:

• Someone of your choosing not listed on the case who is at least 18 years old, or
• The Orange County Sheriff, or
• Licensed process server (consult the web or your yellow pages under Process Servers).

If you want to serve a Prejudgment Claim of Right of Possession you have to use a registered process server or the Sheriff.

WHAT TO GIVE THE PROCESS SERVER OR SHERIFF:

If you opt to serve a Prejudgment Claim of Right to Possession (see above "What If There Are Other People Living There?"), give the registered process server or Sheriff enough copies to serve each defendant with the Summons and Complaint. Provide an additional 3 copies of the Summons, Complaint, and blank Prejudgment Claim For Right To Possession to serve on a party on behalf of "unnamed occupants."

WAYS TO SERVE:

The three most common ways to serve the defendant are:

Personal Service:

This is when the process server gives a copy of the Summons and Complaint to each defendant in person. It is complete on the day it is delivered.

A defendant cannot avoid personal service by not taking the Summons and Complaint. The server just has to state they are a process server and tell the defendant they are being served. Then they can leave the papers as close to the defendant as possible.

Substitute service:

In the event that Personal Service is unsuccessful, the process server may need to serve the defendant(s) by Substitute Service. In general, the process server has to:

• Give a copy of the summons and complaint to an adult who is in charge where the defendants live, and
• Mail another copy of the summons and complaint to the defendants at the same place where you left the first copy.

You cannot use substitute service until process server tried several times to serve the defendant in person. The server must complete a Declaration stating the diligence (actions) taken first to attempt personal service.

Substitute service is complete 10 days after the process server mails the summons and complaint.

POSTING AND MAILING:

If the process server is unsuccessful in serving the summons and complaint, after making diligent efforts to do so, you may ask the court for permission to perform service by posting and mailing. Use the form Application and Order to Service Summons by Posting (L-690) . Attach to the Application, a Declaration (MC-031) from the process server documenting the number of attempts to serve the Summons and Complaint. Submit an original and copy to be returned to you together with a self-addressed stamped envelope. You can check on the status of your application and obtain a copy online also.

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 tenants most likely to see and sends a copy by certified mail to the last place the defendant lived. This service is complete 10 days after you post and mail. This means you have to wait 15 days, rather than 5 days before you default the defendant if they do not respond.

Proof of Service

A Proof of Service of Summons (POS-010) must be completed for every defendant as well as any person who was served on behalf of "unnamed occupants." If you use a registered process server or the Sheriff, they will be familiar with the completion of this form and will mail it to you after service has been completed.

Licensed process servers and the Orange County Sheriff are familiar with the proper methods of service and completing the proof of service.

You can get more information on serving a Summons and Complaint on the California Courts website.

How to Get More Information

Figuring out how to properly serve the complaint may be complicated. You may lose your court case if the judge determines that your service is defective. The court’s Self-Help Center staff can provide you with general information, however, you may wish to consult an attorney who specializes in Unlawful Detainers, or use a registered process server or the Sheriff. The cost of an attorney may be cheaper than the additional rent and damages you lose if your case is delayed or dismissed for a legal defect.

You can find the location of the Self-Help Centers, Lawyer Referral Services, and general information about landlord-tenant law on the General Information page of the section of the website.

Next Step

Go to the After Service of the Unlawful Detainer Action - Plaintiff page.