James Carl Eschen III
James Carl Eschen III, Landlord / Tenant Lawyer - Santa Cruz, CA
Posted over 2 years ago.

I agree with everything but the word "demurrer." The proper procedure is a motion to quash. A complaint based on this notice would state a cause of action in that the poster still owes the money. But, because the notice is defective, it would not state a cause of action in unlawful detainer.

Erin Patricia Farley
Erin Patricia Farley, Family Law Attorney - Petaluma, CA
Posted over 2 years ago.

A demurrer is filed when the tenant says that the landlord did not have enough in the eviction notice or in the Complaint to justify an eviction.
A motion to quash service is filed when the tenant says that the landlord did not serve the Summons and Complaint properly.

James Carl Eschen III
James Carl Eschen III, Landlord / Tenant Lawyer - Santa Cruz, CA
Posted over 2 years ago.

See Delta Imports, Inc. v. Municipal Court (1983) 146 Cal.App.3d 1033: because a demurrer can only be sustained if the complaint fails to state a cause of action at all, a motion to quash is necessary when the complaint does state a cause of action but reveals that the unlawful-detainer procedure is unavailable because the notice is invalid.

Erin Patricia Farley
Erin Patricia Farley, Family Law Attorney - Petaluma, CA
Posted over 2 years ago.

Good stuff, but I think we disagree on form rather than substance. Either can be used, I prefer demurrer because the MTQ is subject to the expedited time limits and the demurrer is not.

To be “demurrer-proof,” a form complaint must state all facts essential to a cause of action under existing statutes or case law. People ex rel Dep’t of Transp. v Superior Court (1992) 5 CA4th 1480, 1484–1486, 7 CR2d 498.

The defendant may file a motion to quash service, instead of a demurrer, to test whether the complaint states a cause of action for unlawful detainer and justifies issuance of a summons with the five-day response time. Smith v Municipal Court (1988) 202 CA3d 685, 688, 245 CR 300; Delta Imports, Inc. v Municipal Court (1983) 146 CA3d 1033, 1035, 194 CR 685

James Carl Eschen III
James Carl Eschen III, Landlord / Tenant Lawyer - Santa Cruz, CA
Posted over 2 years ago.

Even if the notice is bad, a form UD complaint still states a cause of action: the tenant was supposed to pay rent on the first, and did not. The remedy is not part of the cause of action.

Erin Patricia Farley
Erin Patricia Farley, Family Law Attorney - Petaluma, CA
Posted over 2 years ago.

As fun as this is, I have work to do. Let's agree to disagree.