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Demurring to an eviction complaint in California

by Stan Burman
Demurring to an eviction complaint in California.

Demurring to an eviction complaint in California is the topic of this blog post. 

Demurring to an eviction complaint in California is authorized by the provisions of Code of Civil Procedure section 1170.

One of the biggest advantages to demurring to an eviction complaint in California is the fact that there is no shortened notice period for a demurrer specified in any of the statutes that govern evictions in California which are found in Code of Civil Procedure sections 1159 through 1179a.

This means that a demurrer in a California eviction case can be set for hearing around 30-35 days after the filing of the demurrer as Code of Civil Procedure section 1177 states that all provisions of law contained in Part 2 of the Code of Civil Procedure (the ones applicable to regular civil actions) apply to unlawful detainer actions, unless other procedures are specified in the unlawful detainer statutes.

However I want to stress that you must file a demurer before any answer is filed. If you have already filed an answer you have waived your right to file a demurrer.

Because the unlawful detainer statutes do not specify any particular notice period 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. If you want to file a demurrer you 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. 

If you have been served with a three-day notice to pay rent or quit in California you should carefully examine the notice for defects. 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 usual 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 and a general demurrer to the complaint may be filed.

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

Once you have been served with the summons and complaint in a California eviction you have only five (5) calendar days to respond if you have been personally served. Note that Court holidays are not counted in calculating the five days, and if the last day to respond is a Saturday, Sunday or Court holiday you have 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. This means that your landlord must prepare and serve you with 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. 

Sample demurrer to eviction complaint in California for sale.

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 containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and proof of service by mail can use the link shown below.

Sample Demurrer to Unlawful Detainer (Eviction) Complaint for California by Stan Burman on Scribd

 

California eviction document collection for sale.

For more information regarding a California unlawful detainer (eviction) document collection containing over 30 sample documents for eviction defense including a sample demurrer to an eviction complaint sold by the author use the link shown below.

https://legaldocspro.myshopify.com/collections/frontpage/products/california-eviction-litigation-document-collection

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

The author of this blog post, Stan Burman, is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

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