1The topic of this issue of the newsletter is filing a demurrer to an unlawful detainer (eviction)

complaint in California.
A defendant in an eviction proceeding in California may file a demurrer to the complaint. See
Code of Civil Procedure 1170. The notice period for a demurrer is not set forth in the unlawful
detainer statutes, Sections 1159 through 1179a of the Code of Civil Procedure.
However, Section 1177 provides that all provisions of law contained in Part 2 of the Code of
Civil Procedure (the ones applicable to regular civil actions) are otherwise generally applicable
to unlawful detainer actions, unless other procedures are specified in the unlawful detainer
statutes.
Since the unlawful detainer statutes do not provide for the timing of a hearing on a demurrer, the
timing for demurrers is governed by Code of Civil Procedure 1005, which requires 16 court
days notice of the hearing on the demurrer, plus five calendar days for notice by mailing. Court
days means Monday through Friday, except for Court holidays. A defendant who wishes to file a
demurrer should contact the Court clerk and obtain a hearing date 4-5 weeks from the date of
filing, not later than thirty five (35) calendar days, or the earliest date the Court clerk has
available.
One of the first things that any tenant served with a three day notice to pay rent or quit in
California should do is closely examine the notice. The notice must contain the following
information.
The exact amount of rent due must be stated clearly on the notice. If the amount is overstated
the notice is fatally defective and will not support an eviction proceeding. See Ernst Enter.,
Inc. v Sun Valley Gasoline, Inc. (1983) 139 Cal.App.3d 355, 359. This is due to the fact that
Code of Civil Procedure 1161(2) requires the three-day notice to state the amount of rent that is
due.
It must not be served until after the stated amount of rent becomes due. In other words it
cannot be served on the date the rent is due. If the three-day notice alleged in the complaint was
served before the stated rent amount became due it is fatally defective and will not support an
unlawful detainer action. See Lydon v Beach (1928) 89 Cal.App. 69, 74.
It must have the entire street address of the premises, and must have the name, address and
phone number of the person to pay the rent to, as well as the days of the week and hours in which
the rent may be paid. If it does not state these items the notice is defective. And if the address
given for the payment of rent does not allow for personal delivery then it shall be conclusively
presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and
address provided, the notice or rent is deemed received by the owner on the date posted, if the
tenant can show proof of mailing to the name and address provided by the owner), or the number
of an account in a financial institution into which the rental payment may be made, and the name
and street address of the institution (provided that the institution is located within five miles of
the rental property), or if an electronic funds transfer procedure has been previously established,
that payment may be made pursuant to that procedure. So a tenant who cannot personally pay the

rent because the address given is a post office box should mail the rent check, and get proof of
mailing from the post office. That way the rent is considered paid on the date it is mailed.
If the three day notice is defective the best course of action is to file a demurrer to the complaint.
The landlord must wait the entire three days to allow the tenant to comply with the notice. If the
last day to comply is a Saturday, Sunday or Court holiday the tenant has until the end of the next
business day to comply with the notice. Saturday, Sunday and Federal and State holidays are
NOT counted when calculating the three-day period.
For example, if the three-day notice was served on a Monday that is not a Federal or State
holiday, then the three days are calculated as follows, Tuesday is the first day, Wednesday is the
second day, and Thursday is the third day. The eviction complaint could be filed on Friday.
However, if the three-day notice was served on a Tuesday that is not a Federal or State holiday,
then the three days are calculated as follows, Wednesday is the first day, Thursday is the second
day, and Friday is the third day. The eviction complaint cannot be filed until the following
Monday, unless that date is a Federal or State holiday in which case the complaint cannot be filed
until the following day, which is Tuesday.
For more information you can check out Code of Civil Procedure 12, 12a. Also see Lamanna
v. Vognar (1993) 17 Cal.App. 4th Supp. 4, 7, 8
If the eviction complaint was filed even one day too early then you can object to that by filing a
demurrer on the grounds that the eviction complaint is fatally defective and must be dismissed
because it was filed before the cause of action accrued. Or in other words that as a matter of law,
at the time the complaint was filed, there was no forfeiture or failure to pay rent because a
condition precedent was not met. See Lamanna v. Vognar, supra at 8.
Once the tenant has been served with the Summons and Complaint they have only five (5)
calendar days to respond. Court holidays are not counted in calculating the five days, and if the
last day to respond is a Saturday, Sunday or Court holiday the tenant has until the end of the next
business day to file a response with the Court.
It needs to be stressed that any missing or incorrect information in the three-day notice to pay
rent or quit can be grounds for a demurrer. If the thee-day notice is defective then the unlawful
detainer complaint fails to state a cause of action and the demurrer should be sustained without
leave to amend because the law cannot presume that a new and proper notice would be served
and that the defendant would then fail to comply with a new notice. This means that the landlord
must prepare and serve a valid three-day notice to pay rent or quit, wait the appropriate amount
of time, and then file another complaint if the notice is not complied with. See Hinman v.
Wagnon (1959) 172 Cal.App 2d 24, 27.
Also a new cause of action for unlawful detainer on the basis of a new notice would result in a
new cause of action that arose after the complaint was filed, and thus would not properly be an
amended complaint but a supplemental complaint.