Answer to unlawful detainer (eviction) complaint in California

Filing an answer to an unlawful detainer (eviction or UD) complaint in California is the topic of this blog post.

Once the tenant has been properly served with the summons and complaint they generally have five (5) calendar days to file their answer with the Court and serve a copy on the plaintiff or their attorney. Failure to file and serve an answer on time will result in a default being entered against the defendant or defendants. The landlord can then obtain a judgment for possession of the premises very quickly, usually within a few days in most counties. Therefore, it is vital for a tenant served with an unlawful detainer summons and complaint to answer or otherwise respond within the very short time allowed.

In general, the tenant’s response is due within five (5) calendar days after service of the unlawful detainer summons and complaint. The five-day period includes Saturdays and Sundays but excludes other court holidays; however, if the fifth day falls on a Saturday or Sunday, the response deadline is extended to the next court day. However, if the summons and complaint was not personally served, but instead was served by substituted service, meaning a copy was given to someone else residing at the premises, and another copy was mailed to the tenant, or an order to post and mail (“nail and mail” was issued by the Court, than the response time is extended to fifteen (15) calendar days, court holidays are counted in this type of situation although again if the last day to answer falls on a Saturday or Sunday, or a court holiday, the deadline is extended to the next court day.

Thus, an answer to the unlawful detainer complaint must be filed within this five-day period unless, before expiration of the five days, the tenant has filed some other authorized responsive pleading that temporarily excuses the duty to answer such as a motion to quash, demurrer, motion to strike, etc.

The filing of a motion to quash, http://wp.me/ps4Uj-18, demurrer, http://wp.me/ps4Uj-5J, motion to strike http://wp.me/ps4Uj-7c, or other authorized preanswer responsive pleading extends defendant’s time to answer the complaint. But the preanswer pleading must itself have been filed within the five-day answer period, unless a stipulated or court-granted extension of time has been obtained.

Where “good cause” is shown such as time needed to obtain filing fees, etc, the court may grant defendant an extension of time to respond. Note that any application for an extension of time to plead must itself be made within the five-day answer period. As soon as the five days are up, plaintiff is entitled to obtain a default entry “beating out” defendant’s subsequently filed application for extension of time. Any extension of time that was granted after the time to answer had expired may be ignored and a default entered.

Application for an extension of time may be made ex parte; a formal noticed motion is not required as the narrow five-day window period does not allow time for a noticed motion under normal procedures.

But some form of informal notice must be given to plaintiff; and defendant’s written application must advise the court of the nature of the case and what extensions, if any, have previously been granted (whether by court order or stipulation).

Normally, a party seeking an ex parte order in a civil case must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance (absent a showing of exceptional circumstances justifying shorter notice). In unlawful detainer proceedings, however, an ex parte applicant may give shorter notice “provided that the notice given is reasonable.” See California Rule of Court 3.1203.

The ex parte application must be accompanied by a declaration stating either (i) that notice was given, including the date, time, manner and name of the party informed, the relief sought, whether opposition is expected and that the applicant informed the opposing party where and when the application would be made; or (ii) that a good faith attempt to inform the opposing party was made but the applicant was unable to do so, (specifying efforts made); or (iii) why notice should not be required.

If the notice in a UD proceeding was provided later than 10:00 a.m. the court date before the ex parte appearance, the declaration must state why the notice given was reasonable. See California Rule of Court 3.1204(c).

The maximum extension is ordinarily 10 days unless plaintiff consents to a longer time (i.e., stipulated extension) or the court otherwise orders for “good cause” shown.

Defendant’s answer must be verified since the UD complaint must be verified. Note that while all answering defendants must sign the answer, only one defendant needs to verify the answer. An unverified answer is subject to a motion to strike in its entirety; but the motion must be made within 10 days after service of the answer.

The function of the answer is to put the case “at issue” as to all material allegations in the complaint. Therefore, the same as with any answer to a civil complaint, the unlawful detainer answer should set forth whatever denials and/or affirmative defenses are necessary to controvert the landlord’s material allegations.

All material allegations of the complaint that a defendant does not intend to admit must be effectively denied. If they are not denied then they are automatically deemed to be admitted.

Defendant should respond specifically to each paragraph in the unlawful detainer complaint by admitting, denying, admitting portions and denying portions, or denying on the basis of lack of information or belief upon which to admit or deny.

It needs to be stressed that allowable defenses are limited. Only “issues directly relevant to the ultimate question of possession” and which, if established, would result in the tenant’s right to retain possession, may be asserted in defense to an unlawful detainer.

The defendant (tenant) bears the burden of pleading all essential elements of the affirmative defense (or defenses) raised which means meaningful notice to the landlord of the scope and extent of the proffered defense; detailed “facts are not required.

For a detailed listing of the main affirmative defenses available to an answering defendant, click here http://wp.me/ps4Uj-4z, and click here http://wp.me/ps4Uj-4H.

Attorneys or parties in the State of California who wish to view a portion of a sample answer to an unlawful detainer complaint containing numerous affirmative defenses 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.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

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

 

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