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Tuesday, April 3, 2012

Filing a demurrer to an unlawful detainer (eviction) complaint in California

Filing a demurrer to an unlawful detainer (eviction) complaint in California is the topic of this blog post.

A defendant in a eviction proceeding in California may file a demurrer to the complaint. See Code of Civil Procedure § 1170. The notice period for a demurrer is not set forth in the pertinent statutes, which are Sections 1159 through 1179a of the Code of Civil Procedure. Note that any demurrer must be filed before any answer is filed.  Once an answer has been filed a party has waived their right to demurrer.

However, Section 1177 of the Code of Civil Procedure provides that all provisions of law contained in Part 2 of the Code of Civil Procedure (the ones applicable to regular civil actions) are otherwise generally applicable to unlawful detainer actions, unless other procedures are specified in the unlawful detainer statutes.

Since the unlawful detainer statutes do not provide for the timing of a hearing on a demurrer, the timing for demurrers is governed by Code of Civil Procedure § 1005, which requires 16 court days notice of the hearing on the demurrer, plus five calendar days for notice by mailing. Court days means Monday through Friday, except for Court holidays. A defendant who wishes to file a demurrer should contact the Court clerk and obtain a hearing date 4-5 weeks from the date of filing, not later than thirty five (35) calendar days, or the earliest date the Court clerk has available.

One of the first things that any tenant served with a three day notice to pay rent or quit in California should do is closely examine the notice. The notice must contain the following information.

1. The exact amount of rent due must be stated clearly on the notice. If the amount is overstated the notice may be considered fatally defective and will not support an eviction proceeding. This does not apply to commercial tenancies. But even with a commercial tenancy, a demand that exceeds 20 percent of the amount due is defective and will not support a UD judgment.

2. It must not be served until after the stated amount of rent becomes due. In other words it cannot be served on the date the rent is due.

3. It must have the entire street address of the premises, must have the name, address and phone number of the person to pay the rent to, as well as the days of the week and hours in which the rent may be paid unless an alternative method of paying the rent is specified in the notice.

If it does not state these items the notice is defective.

If the three day notice is defective a demurrer to the complaint may be filed. 

The landlord must wait the entire three days to allow the tenant to comply with the notice. If the last day to comply is a Saturday, Sunday or Court holiday the tenant has until the end of the next business day to comply with the notice.

Once the tenant has been served with the Summons and Complaint they have only five (5) calendar days to respond. Court holidays are not counted in calculating the five days, and if the last day to respond is a Saturday, Sunday or Court holiday the tenant has until the end of the next business day to file a response with the Court.

It needs to be stressed that any missing or incorrect information in the three-day notice to pay rent or quit is grounds for a demurrer. If the thee-day notice is defective then the unlawful detainer complaint fails to state a cause of action and the demurrer should be sustained without leave to amend because the law cannot presume that a new and proper notice would be served and that the defendant would then fail to comply with a new notice. This means that the landlord must prepare and serve a valid three-day notice to pay rent or quit, wait the appropriate amount of time, and then file another complaint if the notice is not complied with.

Attorneys or parties in the State of California who wish to view a portion of a sample demurrer to an unlawful detainer complaint for California for sale by the author please see below.

http://www.scribd.com/doc/25816455/Sample-Demurrer-to-Unlawful-Detainer-Complaint-for-California

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Visit his website at http://www.legaldocspro.com

Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm