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If a 3-day notice to pay rent or quit is defective does that mean the summons fails to state a cause of action

San Francisco, CA |

The three-day notice that was served listed past due rent but acknowledged the rent check was received on the 5th of the month, the last day rent can be paid without becoming late. The landlord refused to cash the check and on the 6th served 3-day notice claiming the rent check was no good. The rent check was good. So does the following summons for Unlawful Detainer fail to state a cause of action? The law says that tendering rent does not extinguish the rental obligation but does ensure no breach of the covenant to pay rent. The tender protects against Unlawful Detainer. I demurred to the Unlawful Detainer. Could I, or should I, have made a motion to quashed, and failing that demurred?

Rent is due on the first, late on the sixth. It can be proven that the rent check was good. The 3-day and complaint acknowledges the rent was received on time on the 5th. The 5th is the last day rent can be paid before being late. They never cashed the check. Instead they claim they called the bank and were told over the phone there were insufficient funds to clear the check. I can prove the bank would have told them the exact opposite. Plus, even if what they say were true, whoever they spoke to was wrong. Had they tried to cash the check, the check would have cleared. They base their 3-day notice on what they claim the bank teller told them, which amounts to inadmissible hearsay. I’d be very surprised if I lost the UD, but what would cause a demurrer to be overruled? Rental agreement says, “Rent is due in advance on the 1st of each month. If rent is due and unpaid five (5) days after the due date landlord can terminate tenancy”. I take that as the last day I can pay rent is the 6th. Am I right?

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Attorney answers 2


The court can only consider what's on the pleadings even if they may be proven to be untrue by extrinsic evidence. So demurrer will not help you unless the complaint somehow admits that rent is due on the 5th and that you tendered the check on the same day without saying the check was returned for insufficient funds, your demurrer if one is filed will probably be denied. Some judges won't entertain the motion to quash on the same issue. Unless you are sophisticated with the law, you may not know how to argue to the judge why a motion to quash may be filed instead of a demurrer on the same issue. You should speak to an attorney. This is not a simple yes or no answer.


You are absolutely right to make a motion to quash and I bet it will be granted. If the 3 day notice acknowledges that rent has been received, you cannot be "guilty" of unlawful detainer pursuant to Code of Civil Procedure section 1161 2. Therefore, the landlord has not stated a cause of action, and you cannot be held to answer to the 5 day summons.

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