Summary judgment motion in an eviction in California

A summary judgment motion in an eviction in California is the topic of this blog post.

This blog post will discuss a defendant filing a summary judgment motion in an eviction in California on the grounds that the plaintiff cannot separately establish one of the required elements of a cause of action for unlawful detainer.

The two main differences in filing a motion for summary judgment in a California eviction case as opposed to other litigation are that the notice period for the motion is substantially shorter than the minimum 75 calendar days required in other California litigation. 

The second difference is that a separate statement of undisputed material facts is NOT required pursuant to Code of Civil Procedure section 437c(r).

Code of Civil Procedure section 1170.7 governs motions for summary judgment in unlawful detainer actions.  In relevant part it states that “A motion for summary judgment may be made at any time after the answer is filed upon giving five days notice. Summary judgment shall be granted or denied on the same basis as a motion under Section 437c.”

Note that if the motion for summary judgment is served by mail ten (10) calendar days notice must be given.

The Courts in California have held that summary judgment is properly granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law.

The party requesting summary judgment has the burden of proving the absence of any triable issues of material fact. A defendant can meet this burden by showing that “one or more elements of the cause of action cannot be separately established,” or by establishing “an affirmative defense to that cause of action.”  See Code of Civil Procedure § 437c(o)(1), (2).

The California Supreme Court has stated that once a defendant has met their burden, the burden shifts to the opposing plaintiff to demonstrate the existence of a triable issue of material fact as to the element or elements challenged by the defendant. And the plaintiff cannot just rely upon mere allegations in their pleadings, instead they must show by sufficient and competent evidence the requisite triable issue of material fact.

If the plaintiff fails to meet this burden, summary judgment “shall be granted.”  See Code of Civil Procedure § 437c(c).

It has been settled in California for over 100 years that the landlord has the burden of proof as to all essential elements of the prima facie case, e.g., the existence of a landlord-tenant relationship, the tenant’s wrongful occupation of the premises, proper service of all required notices, and the tenant’s default in the payment of rent. 

The plaintiff must allege and prove proper service of a valid three-day notice on their tenant in order to obtain a judgment for possession. If the fact of service is contested compliance with the statutory requirements must be shown.

Attorneys or parties in California who would like to view a portion of a sample 19 page motion for summary judgment for a defendant in a California unlawful detainer (eviction) case containing brief instructions, a memorandum of points and authorities which lists over 10 affirmative defenses to choose from as well as citations to case law and statutory authority, a proposed order and proof of service by mail sold by the author can use the link shown below.

Sample California Motion for Summary Judgment in Unlawful Detainer (Eviction) by Stan Burman on Scribd


Attorneys or parties in California that would like more information on a California unlawful detainer (eviction) litigation document package containing over 30 sample documents including a motion for summary judgment in an eviction case can use the link shown below.  

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

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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.