When a tenant fails to respond to the unlawful detainer or fails to appear for a mandatory court date, a landlord can request default judgment and a writ of possession. A tenant then has about a month from the filing of the eviction lawsuit before the sheriff arrives to change the locks to the unit.
This default judgment will be on the tenant's record, which can be viewed by future landlords and creditors. This will negatively impact the tenant's credit and ability to find new housing for seven years. However, a tenant can follow a step-by-step process below to vacate the default judgment and re-seal the record.
Step 1: Gather All Important Documents
A tenant should call their local superior court to gather all the filed documents including the Summons and Complaint, and Entry of Judgment. Additionally, the tenant should get together all documents in their personal records pertaining to the eviction such as eviction notices, and email and text correspondence with the landlord and/or property manager regarding the eviction.
Step 2: Review The Complete File With An Attorney Or Local Legal Aid Nonprofit
The tenant should have the file reviewed by a tenant lawyer or nonprofit counselor to ensure that the case is the type that can be cleared. Most eviction judgments can be vacated.
Step 3: Negotiations With Landlord's Attorney
If the basis of the eviction was for nonpayment of rent, the tenant will owe the past due rent plus interest. In order to clear the judgment, the tenant will need to pay the back rent, plus interest, and other court costs and fees. If the basis of the eviction was for some other issue, there are still costs and fees accruing that the tenant may be obligated to pay. The goal is to negotiate a deal that works for both the landlord and tenant. Once all parties have come to an agreement, a stipulation will be drafted by the tenant lawyer or nonprofit advisor that details the agreed upon terms
Step 4: Drafting The Stipulation
The stipulation should at a minimum include the following information:
- The current amount of money and interest owed by the tenant.
- The agreed upon amount of money to be paid by the tenant, if applicable.
- When it will be paid.
- To whom will it be paid.
- How it will be paid.
- Who will file the stipulation, request for dismissal, proposed order, and ex parte application with the court.
- Who will incur the costs for such filings.
- A mutual release of all claims pertaining to the unit at issue.
- Whether the party not filing the ex parte application waives notice.
Step 5: Petitioning The Court
Once all parties have signed the stipulation, its time to petition the court to seal the judgment. The process begins with an Ex Parte Application to Vacate the Default.
The ex parte application should include:
- A request that default and the default judgment be vacated.
- A request for dismissal with prejudice.
- A request for the court to order that the tenant's record in the Unlawful Detainer action be masked from public viewing pursuant to Code of Civil Procedure section 1161.2.
- A proposed order for the court.
- Whether the landlord has waived notice of the ex parte application.
Step 6: Attend The Ex Parte Hearing
At the hearing, the judge will review the paperwork for accuracy. If the parties have signed a stipulation and all the correct court procedures have been followed, there is no reason why a judge would not grant the application. Following the judge's determination, the court will issue an order pursuant to the requests made in the ex parte application.
After this process is complete, soon after, the tenant's judgment will be vacated, and the record will be masked.
Our law firm vacates unlawful detainer judgments. To speak to one of our tenant lawyers, please contact us at 562-497-7900 or email us at [email protected]
The Law Office of George L. Fernandez is a Property Law (Landlord Tenant) law firm representing tenant's, residential, and commercial property owners and managers. This article is for general information purposes only. While the Law Office of George L. Fernandez provides clients with information on legislative changes, our courtesy notifications are not meant to be exhaustive and do not take the place of legislative services or membership in trade associations. Our legal alerts are provided on selected topics and should not be relied upon as a complete report of all new changes of local, state, and federal laws affecting property owners and managers. Laws may have changed since this article was published. Before acting, be sure to receive legal advice from our office.