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How to find points/authorities for Demurrer for defective 3 day notice
in CA.
Anonymous3 views2 answers
Thank You
I was served with a 3day Notice that has the WRONG city on the notice
and also mis-spelled my first name.
It also has a proof of service on the same page and nothing was put there.
How do I find the points and authorities that are needed to go with the Demurrer?
And, is this filed with the UD court or at superior court?
Also, is the 60 day sealed records automatic or do I need to file something/ I know to seal permanent it requires an action after the case but during is it sealed?
THANK YOU!
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.)
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.)
There is no such thing as UD court. Unlawful detainers are processed in the superior court, either as limited jurisdiction or as unlimited jurisdiction cases.
Yes, the 60 day "mask" under Code of Civil Procedure 1161.2 is automatic.
Michael Raymond DaymudeLitigation LawyerSherman Oaks, CA ·
"Is this filed with the UD court or at superior court?" It appears you may not have been served yet with an unlawful detainer, otherwise you would know the court. We do not have separate UD courts in CA. It is always the Superior Court, either limited or unlimited jurisdiction.
Your copy of the 3-day notice will not have a completed proof of service because it can only be completed after the fact. You are, of course, free to file a demurrer to the complaint once you are served. You should be aware, however, that the technical defects you mentioned are unlikely to result in your demurrer being sustained.
