Demurrer to 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 an 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 unlawful detainer statutes, Sections 1159 through 1179a of the Code of Civil Procedure.

However, Section 1177 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 is fatally defective and will not support an eviction proceeding.

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

If the three day notice is defective the best course of action is to file a demurrer to the complaint.

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 would be considered by many judges as 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.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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16 thoughts on “Demurrer to Unlawful Detainer (eviction) complaint in California

  1. Jenny

    Thank you, thank you, thank you.

    Not only for the information in this blog post (which was exactly what I needed to know), but for the sample Demurrer you made available on Scribd.

    I didn’t have a lot of money, but bought it anyway, hoping it would at least get me close. Imagine my pleased surprise when I saw that it gave me exactly what I needed to write a solid Demurrer. I had one day left to do this and you really save me.

    Thank you again SO MUCH!!!

    Reply
  2. Wendy

    Hello, Can you use a demurrer if the amount on the 3 day note is correct but the Summons itself states a different amount? Thanks for your time

    Reply
    1. burmanparalegal Post author

      If the amount of rent on the 3-day notice and the amount of rent in the complaint are not the same then that should be grounds for a special demurrer on the grounds of uncertainty. You may want to contact an attorney on your case. Good luck.

      Reply
  3. Vince

    Hi,
    How long time do you have to file a demurrer after a post order as been granted and the summon as been posted on the front door?

    Reply
  4. Max Falahati

    The three day notice that my landlord gave me did not have the days that I could pay the rent on it, I demurred to the complaint and Judge overruled my demurer, his reason was that it does not matter the days were not mentioned in the notice you had three days to pay anyway. Is he right and if not how can I appeal it?

    Reply
    1. burmanparalegal Post author

      The Judge does have a point although I cannot say for sure if he is absolutely right. Even if he is wrong appealing is very complicated. You would most likely need an attorney to appeal the decision.

      Reply
  5. newstartnetwork

    When you go to court on a Demurer and they are ruling against all of them and not allowing anyone to state their objection. Now they have five days to answer the UD. What do you do? How and what do you put into an answer?

    Reply
    1. Stan Burman Post author

      While I cannot give you legal advice you could try putting the same objections in the answer as you did in the demurrer. Also add any other defenses or objections that you have against the landlord.

      Reply
  6. Penny Workman

    My landlord is evicting me on grounds that my rent was late, but I have proof that that has always been ok in the past. What was different this time, is that I asked her to make the repairs she agreed to make in the contract and has never made. I have all of our conversation recorded as Facebook messages. When I told her the rent would be late, she did not even speak of eviction. In another conversation a couple of days later, I mentioned the repairs (in our contract) and she just lost it. She told me to get out of her house, and also began a lengthy trail of harassment too (all in writing). I believe this is a case of retaliatory eviction. I received the UD 2 days ago and was planning on filing an answer. Is a demurrer a better way to go?

    Reply
    1. Stan Burman Post author

      I would strongly suggest that you contact an attorney right away as from what you have stated it does sound like may have a good case. I cannot give legal advice but an answer would be considered by many judges to be the more appropriate response, rather than a demurrer.

      Go to http://www.nolo.com/attorneys and look for an attorney in your area who does landlord-tenant law, or if you are low income you could try checking with your local legal aid society. I hope everything works out for you.

      Reply
  7. jennifer rodriguez

    HI! If a Summons for Unlawful Detainer – Eviction was just left on my apartment door – is that considered a properly served summons? Also if the landlord did not provide me any notice to vacate or anything in writing that i had to leave, do they have the right to file this Unlawful detainer against me? They told me verbally i no longer qualified for the low income housing program and that i had to leave. and required a provide a move out date and made me sign a notice to vacate. after signing such form, i reviewed my contract and found a paragraph that stated i had 6 months to leave after being advised of not qualifying for low income housing. Can i file a demurrer?

    Reply
    1. Stan Burman Post author

      You should contact an attorney right away. I am not allowed to give legal advice but from what you have stated the service on you may not have been valid. Contact an attorney. Check with legal aid or another legal service as you may qualify for low or no cost legal help. I hope everything works out for you.

      Reply

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