Legal Question in Landlord & Tenant Law in California

I am going through an eviction. I have motioned to demur my landlords complaint because their complaint says they posted the 3-day notice to pay or quit on my door. But they did not, they served it by means of substituted person and did not mail it. I just received a letter from the landlords attorney stating that they are asking the judge to cancel my demur because I can not demur the facts on the complaint. They are saying I need to file an answer within 5 days instead. But I was told if I file an answer then that waives any issues I had with the 3-day notice. What steps should I take to fight this eviction because I never properly received the 3-day notice to pay or quit. I had set a trial for my demur on Tuesday but now am unsure if the trial is still scheduled. Any help is greatly appreciated.


Asked on 10/11/09, 10:38 pm

1 Answer from Attorneys

The landlord's attorney is right. You can't demur to contest defects in service of the notice. A demurrer only is allowed if there is something wrong with the complaint itself; an error in the actual written document that prevents the case going forward even if what is in the paper is true. Failure to properly serve a 3-day notice is a matter to be raised as an affirmative defense in your answer and then proved at trial. Lastly there is no trial on a demurrer, only a hearing.

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Answered on 10/12/09, 12:18 am


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