I understand it has to be on numbered paper? I am unclear what it must contain and how many pages it must be. Do I need to use legal mubble jumbo or can I use my own words?
I was informed via city inspector that my apartment is illegal, it was a converted garage. Therefore any lease is null and void and the landlord is not entitled to any rent and may not request rent be paid.
I want to make sure I file properly with all the proper documents.
Lawsuit / Dispute Attorney
There is no Judicial Council form, as a lawyer defending this type of matter would prepare a demurrer from pleading paper, then add the appropriate points and authorities to support the demurrer. You should go to your local law library, typically inside or near the County Superior Court, and speak with the friendly librarian for help with Forms of Pleading and Practice in Unlawful Detainer cases.
Alternatively, in your area there may be lawyers who represent tenants in such cases, as some unlawful detainer cases are improper and should be dismissed or there are good defenses to the case, such as retaliation or habitability or the pre-filing notice was defective. Please be aware that if your response is not timely filed in court per the UD-Summons, they can ask the clerk to enter a default, then present the case on a default basis.
Robert Stempler (please see DISCLAIMER below)
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Personal Injury Lawyer
As Mr. Stemplar has correctly stated, there are no court forms for demurrers--thus, you would have to submit yours in legal pleading form (e.g., caption, 28 lines, etc.). Also, you might find the "Eviction" section of the California Court's website helpful. I have provided the link for you below. Best of luck.
There is no Judicial Council form for a demurrer. In any event, 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.
Debt Collection Attorney
There is no pre-printed form for a Demurrer. It must be on legal pleading paper, with a notice, a demurrer and a memorandum of points and authorities. You cannot argue any facts which are not included in the plaintiff's complaint.
The facts that you mention do not constitute grounds for a demurrer. It is a defense that you can raise at trial, if you include it in your Answer.
You should retain an attorney. There are very short time limits. You should propound discovery and you should subpoena proper witnesses and documents.
Read your rental agreement. Is there an attorney's fees provision? If there is, and if you win the case, you may get the landlord to pay your legal fees and costs.