When can you file a Demurrer in California in an Unlawful Detainer Eviction?

Asked over 3 years ago - Pasadena, CA

We have had an arrangement with the landlord to pay every month on the 18th-21st of the month, for the last year 1/2. This month, we were not allowed to pay on the 18th or the 19th or the 20th, and given an Unlawful Detainer on the 23rd( last Monday). We desire to file a demurrer, because our due dates have been established the same by the manager and the landlord, not the 5th of the month, as the notice incorrectly states. We have all of our money order receipts. Please advise.

Attorney answers (2)

  1. Frank Wei-Hong Chen

    Contributor Level 20

    Answered . Demurrers are rarely permitted in unlawful detainer actions, and would not be appropriate for the circumstances you described in your question. Consult an unlawful detainer attorney to see if a motion to quash service of summons could be filed. A demurrer only tests the sufficiency of the allegations, not the truth nor can the court consider extrinsic evidence.

  2. Pamela Koslyn

    Contributor Level 20

    Answered . Most UD courts don't allow demurrers. Even if they do, demurrers don't challenge the terms that the plaintiff pleaded, which are assumed to be true, even if they're not.

    As for trying the case on its merits, you're oral arrangement may not be eforceable. Do you have a written rental agreement that says that rent is due on the 1st of each month with 5 days grace, or on the 5th with no grace days? Does it say something like "no oral agreements or promises, either prior to or contemporaneous with this agreement, may vary the terms in this agreement"? and/or "this written agreement may not be modified or amended except by a writing signed by both oarties"? an/dor no waiver of any right will be a continuing waiver"?

    If there are any of these clauses, then your oral arrangement won't be binding on the parties.

    See a landlord/tenant lawyer for help.

    PLEASE READ THIS BEFORE YOU COMMENT, EMAIL ME OR PHONE ME. I'm only licensed in CA. This answer doesn't make me... more

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