I've been sitting at my computer for hours today, all day in fact, trying to find the right words to put a "pro per" Motion to Demurrer against a recent Unlawful Detainer. I'm tangled over the fact that if I use the boiler plate options out on the internet for "delay tatic" only, until I "Answer", I feel that I am not attacking the source of the issue....I'm not a "tenant" and the new owner of our home has never been our "landlord", and our foreclosure was highly illegal. I know I can bring light in the Answer in the last section "3j" "other affirmative defense", but I'm not ready to file the "Answer" yet as I want to gather more documentation to argue my case later, so, I'm trying to buy time, but I want to stay true to the core of my defense, even in the Demurrer. (no $ for atty.)
Chapter 7 Bankruptcy Attorney
As I stated in my answer to your duplicate question, you can't raise this argument on a demurrer. This would be better suited for an affirmative defense in your answer.
First, the firm is a debt relief agency according to the U.S. Bankruptcy Code. We help people file for bankruptcy. We also do other stuff and we do it well, but Congress wants me to post this notice. Second, nothing on this site is legal advice. You are not my client unless you enter into a written agreement signed by you and me.
You can't win a demurrer to an unlawful detainer complaint.
Keep in mind that a demurrer tests only the sufficiency of the pleading and whether the cause of action is stated properly. The court in ruling on a demurrer cannot consider any extrinsic evidence, other than evidence to which the court can take judicial notice. The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Cal. Code Civ. Proc. § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.). No matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp v Structural Materials Co (1981) 123 Cal App 3d 593, 604.)
All arguments made in the demurrer belong in a defendant’s answer as affirmative defenses. Claims that go beyond the four corners of the complaint are improper for demurrer. A demurrer tests only the sufficiency of the pleading and whether the cause of action is stated properly.
Finally, you should note that 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 Imports Inc. v. Municipal Court (1983) 146 Cal. App. 3d 1033, 1035-36; Greener v. Workers' Compensation Appeals Bd. (1993) 6 Cal.4th 1028, 1036.)
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.