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Basis for Motion to Dismiss in Unlawful Detainer?

Los Angeles, CA |

What are some examples of the reasons a tenant may file a Motion to Dismiss in an unlawful detainer?

Attorney Answers 2


  1. Actually, there is no such thing as a motion to dismiss in response to a complaint for unlawful detainer.

    A defendant could file a motion to quash service of summons.

    Even though California Code of Civil Procedure § 1170 indicates that a defendant in an unlawful detainer action may "answer or demur," the courts have held that the "only" acceptable procedure to test whether a complaint states a cause of action supporting a five day summons is a motion to quash. (Delta Imps. v. Mun. Court (1983) 146 Cal. App. 3d 1033, 1036; Greener v. Workers' Compensation Appeals Bd. (1993) 6 Cal.4th 1028, 1036.)

    A defendant could also, after filing an Answer, file a motion for judgment on the pleadings, or a motion for summary judgment.

    Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.


  2. As attorney Frank Wei-Hong Chen stated, you can file a motion to quash for various reasons. Was this for non-payment of rent? did the complaint overstate the amount of past rent due? Did it include additional fees, such as utilities? Was the 3-day notice proper? did it give you a location to pay the rent? There are many reasons you might have grounds for the motion, but you would need to provide some additional facts and background on the case.

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