From: Charles Cox [mailto:email@example.com]
Sent: Tuesday, September 04, 2012 6:27 AM
To: Charles Cox
Subject: Weekly legal newsletter – Demurrer to UD
The topic of this issue of the newsletter is filing a demurrer to an unlawful detainer (eviction) complaint.
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.
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. See Ernst Enter., Inc. v Sun Valley Gasoline, Inc. (1983) 139 Cal.App.3d 355, 359. This is due to the fact that Code of Civil Procedure § 1161(2) requires the three-day notice to state the amount of rent that is due.
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. If the three-day notice alleged in the complaint was served before the stated rent amount became due it is fatally defective and will not support an unlawful detainer action. See Lydon v Beach (1928) 89 Cal.App. 69, 74.
It must have the entire street address of the premises, and 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. See Code of Civil Procedure § 1161(2).
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 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. Saturday, Sunday and Federal and State holidays are NOT counted when calculating the three-day period.
For example, if the three-day notice was served on a Monday that is not a Federal or State holiday, then the three days are calculated as follows, Tuesday is the first day, Wednesday is the second day, and Thursday is the third day. The eviction complaint could be filed on Friday.
However, if the three-day notice was served on a Tuesday that is not a Federal or State holiday, then the three days are calculated as follows, Wednesday is the first day, Thursday is the second day, and Friday is the third day. The eviction complaint cannot be filed until the following Monday, unless that date is a Federal or State holiday in which case the complaint cannot be filed until the following day, which is Tuesday.
For more information you can check out Code of Civil Procedure §§ 12, 12a. Also see Lamanna v. Vognar (1993) 17 Cal.App. 4th Supp. 4, 7, 8
If the eviction complaint was filed even one day too early then you can object to that by filing a demurrer on the grounds that the eviction complaint is fatally defective and must be dismissed because it was filed before the cause of action accrued. Or in other words that as a matter of law, at the time the complaint was filed, there was no forfeiture or failure to pay rent because a condition precedent was not met. See Lamanna v. Vognar, supra at 8.
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 can be 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. See Hinman v. Wagnon (1959) 172 Cal.App 2d 24, 27.
Also a new cause of action for unlawful detainer on the basis of a new notice would result in a new cause of action that arose after the complaint was filed, and thus would not properly be an amended complaint but a supplemental complaint.
The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.