James Carl Eschen III
James Carl Eschen III, Landlord / Tenant Lawyer - Santa Cruz, CA
Posted about 1 year 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, Landlord / Tenant Lawyer - Petaluma, CA
Posted about 1 year 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 about 1 year 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, Landlord / Tenant Lawyer - Petaluma, CA
Posted about 1 year 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 about 1 year 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, Landlord / Tenant Lawyer - Petaluma, CA
Posted about 1 year ago.

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