Responding to a Demurrer in an Unlawful Detainer Proceeding

Your tenant has been served with a Notice to Pay Rent or Quit.  The tenant failed to comply with the notice and is still residing at your property.  You take the next step in the eviction process by filing an unlawful detainer lawsuit and serving it on the tenant.  The tenant responds by filing a “demurrer” to the complaint.  What is a “demurrer” and how should a landlord respond?

What is a Demurrer?

A demurrer is a responsive pleading in a lawsuit that is used to point out legal defects of the claim that are evident from the face of the Complaint.  It represents one of several possible responses to a lawsuit, including an eviction proceeding.  (See Code of Civil Procedure § 1170.) 

There are several possible grounds for a demurrer.  Two of the most common grounds are demurrers for failure of the complaint to state a valid cause of action, and demurrers contending that the complaint is “uncertain”.  “Uncertain” in this context means “ambiguous” or “unintelligible.” (§ 430.10, subd. (f).) Settled California law holds that “demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (See Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Responding to a Demurrer

When a demurrer to the complaint has been filed, the first step in the analysis is to review the demurrer and applicable California law.  If the demurrer raises complex or technical legal arguments, the most prudent course of action would be to hire an attorney to analyze it.  If the demurrer has merit, the most efficient way to address the issues it raises is by filing an amended complaint fixing the defect(s) existing in the original pleading.  The Defendant would then be required to respond to the amended pleading within 5 court days or some other time period specified by the court. 

Unfortunately, many demurrers are filed for the sole purpose of delaying entry of judgment in the case.  Even if the demurrer is unsuccessful, it would extend the time period for obtaining a judgment by a month or longer, because a hearing would have to be scheduled to resolve the issues it raises.  Unfortunately, there is a growing trend to utilize this tactic for ulterior purpose of prolonging the litigation, thus allowing the tenant more time to stay at the property for free.

If the Demurrer is truly frivolous, the landlord can request monetary and evidentiary sanctions against the tenant for filing it. To prevail, the landlord would have to show the demurrer is “totally and completely without merit” – a high burden to satisfy.  But even if the request is denied, advancing the argument in a formal court proceeding will send a message to the tenant that there are potential adverse consequences for misusing the court system, and may cause him to think twice about continuing that tactic in the litigation. 

Please contact Lynx Legal Services with any questions regarding the above, or if you are ready to start a case.  We can be reached at 925-237-9216, or online at info@lynxlegal.com.  You can also schedule a telephonic consultation with one of our representatives by clicking “Schedule a Consultation” on our website.