Discovery is an optional phase of the California unlawful detainer eviction process. If either the landlord or tenant sends discovery questions to the other side, responses will be required by the answering party, and the time period for which to respond to discovery questions is short. Discovery is a way to gain additional information from the other side and to help prepare for trial and minimize the chances of an unexpected surprise at trial.
Discovery can ask the other side to answer relevant details about the tenancy, to produce documents relating to the tenancy, and to admit or deny certain facts. There are several forms of discovery, but the three main types of discovery in California unlawful detainers are:
- Inspection of Documents
- Requests for Admissions
A landlord or tenant may use one or all of these types of discovery techniques, and oftentimes a party will use all three, as they each have their individual purpose. For example, if the eviction case is based on the tenant failing to pay the rent, the landlord could demand from the tenant through the use of discovery:
- Admit that the tenant failed to pay the rent in June 2019 (this is a sample “Request for Admission”).
- Provide a copy of your cancelled check showing rent was paid for June 2019 (this is a sample “Inspection of Documents”).
- List all rent payments and rent credits made or claimed on behalf of defendant beginning 12 months before the notice to quit was served (this is a sample Interrogatory).
A landlord may want to send discovery questions to the tenant to find loopholes in the defenses that the tenant raised in his or her answer. The landlord may try to establish that the tenant committed the allegation being asserted in the complaint. The landlord may use discovery to rebut the tenant’s warranty of habitability defense or to determine the names of all people living at the rental unit.
A tenant may send discovery questions to the landlord to try and discover bases for affirmative defenses. If the property is in a rent control area, the tenant can use discovery questions to try and show bad faith on the part of the landlord, since most rent control jurisdictions require the landlord to have a specific reason for the eviction that falls within a list of justifiable circumstances.
While discovery can be used in constructive ways, it is not without its downsides. There is normally a cost involved by both sides to draft questions and provide responses. Most of the time, sending discovery will not delay a case, but there is a possibility that a trial may be delayed pending discovery (which is why it is important to begin discovery at the earliest opportunity during the case). Thus, while both landlord and tenant have the right to use discovery in California unlawful detainer actions, the decision on whether or not to proceed with discovery needs to be discussed on a case-by-case basis between the party and his or her attorney.