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Judgment on the pleadings in a California eviction

Judgment on the pleadings in a California eviction is the topic of this blog post.

A motion for judgment on the pleadings in a California eviction can be filed even after an answer to the complaint has been served and filed.  This is very useful if a tenant has already filed their answer and then discovers that the three-day notice attached to the complaint is defective in some way.

Statutory authorization for judgment on the pleadings in a California eviction.

A motion for judgment on the pleadings in a California eviction is authorized by Code of Civil Procedure sections 438 and 1177 and may be made on the same grounds as a general demurrer.

A motion for judgment on the pleadings functions as a general demurrer, challenging whether a complaint or cross-complaint states facts sufficient to constitute a cause of action.

The notice period for a motion for judgment on the pleadings is not set forth in the statutes governing unlawful detainers in California which are sections 1159 through 1179a of the Code of Civil Procedure.

However Code of Civil Procedure 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 motion for judgment on the pleadings in a California eviction the timing is governed by Code of Civil Procedure § 1005, which requires 16 court days notice of the hearing on the motion, 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 motion for judgment on the pleadings in a California eviction 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.

Grounds for a motion for judgment on the pleadings in a California eviction.

If you are a tenant in California that has been served with a three day notice to pay rent or quit the first thing you should do is closely examine the notice as the notice requirements for an eviction in California are strictly construed and the notice must inform the tenant what he or she must do in order to pay the rent within the notice period and avoid forfeiture of the lease or rental agreement.

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.

And if the address given for the payment of rent does not allow for personal delivery then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner), or the number of an account in a financial institution into which the rental payment may be made, and the name and street address of the institution (provided that the institution is located within five miles of the rental property), or if an electronic funds transfer procedure has been previously established, that payment may be made pursuant to that procedure. So a tenant who cannot personally pay the rent because the address given is a post office box should mail the rent check, and get proof of mailing from the post office. That way the rent is considered paid on the date it is mailed.

If the three day notice is defective and an answer has already been filed a motion for judgment on the pleadings in a California eviction may be appropriate.

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.

If the tenant has been personally 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 motion for judgment on the pleadings. If the thee-day notice is defective then the unlawful detainer complaint fails to state a cause of action and the motion for judgment on the pleadings should be granted 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.

Despite the language in California Code of Civil Procedure § 438 regarding time limits, and even though that statute was enacted in 1994, the Courts have ruled that a motion for judgment on the pleadings may be made at any time prior to the trial, or at the trial itself. The grounds for a general demurrer are never waived. See California Code of Civil Procedure § 430.80.

The Court has the discretion to allow a late motion for judgment on the pleadings; no showing of “good cause” is required.  See Code of Civil Procedure § 438(e).

Sample motion for judgment on the pleadings in a California eviction for sale.

Attorneys or parties in California that would like to view a portion of a sample 21 page motion for judgment on the pleadings in a California eviction containing brief instructions, a table of contents and authorities, memorandum of points and authorities with citations to case law and statutory authority and proof of service by mail sold by the author can see below.

 

California eviction litigation document package with over 30 documents designed for eviction defense in California for sale.

http://www.legaldocspro.net/california-eviction-litigation-document-package/

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.

For licensed attorneys and law firms that need 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.

Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.

Follow Stan Burman on Twitter at:

https://twitter.com/LegalDocsPro

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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