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.
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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.Ask a similar question