A demurrer was filed in response to my complaint for unlawful detainer (nuisance theory), alleging that the complaint is uncertain because the 3 day notice fails to list the names of victims and witnesses and is therefore fatally vague.
The proposed order is that the demurrer is sustained without further leave to amend, and that the action is dismissed.
I am arguing that the allegations in the complaint are sufficiently plead, and that there is no binding authority that requires the names of such victims and witnesses in a 3 day notice to quit for nuisance. However, should I lose, what is the result? Can I serve a new 3 day with the problems cured, and then file a new unlawful detainer? Or is the case dismissed with prejudice if the demurrer is sustained without leave to amend?
Assuming that your complaint gives sufficient notice to the defendants of the claims, you should be OK. It is unlikely that the court in any event will dismiss with prejudice, and at worst will give you leave to amend. it is not the law that witnesses are listed in the complaint.
If the court sustains the demurrer WITHOUT LEAVE TO AMEND, you cannot refile. You need to make sure that does not happen or be barred from bringing the case again.
You should file a reply to the Demurrer explaining how the 3 day notice complies with governing law. See for example, Code of Civil Procedure section 1161. I agree with a colleague who said that if the Demurrer is sustained, you will probably be given leave to amend. You may want to confer with a local attorney familiar with landlord - tenant law.
You should file a reply to the Demurrer and be sure to attend the hearing to voice your argument orally. Additionally, I agree with the prior answers that usually leave to amend is granted.
You should contact an attorney to help you through this process.
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