What are the prima facie elements for a landlord to bring an unlawful detainer acition? Something like, that Plaintiff has authority to bring the suit, that Defendant was served with a Notice to Vacate, that Defendant still resides at the property, etc - right?? Citations would be helpful. Thanks.
If you are the plaintiff, unless this is a post foreclosure eviction, you should be using the Judicial Council form complaint for unlawful detainer.
The elements of unlawful detainer when a defendant has defaulted in the payment of rent are: 1) that the defendant was served with a three-day written notice to pay rent or quit, 2) the amount of rent due, 3) the non-payment within such period, and 4) the continued possession of the premises without permission. (California Code of Civil Procedure §§ 1161(2), 1166. )
In California, the manner of attacking a complaint that fails to state facts sufficient to constitute a cause of action for unlawful detainer is by motion to quash and not by general demurrer. (Delta Imports Inc. v. Municipal Court (1983) 146 Cal. App. 3d 1033, 1035-36.)
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. (Id. at 1036; 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. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
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