Use (and Abuse) of Demurrers in an Unlawful Detainer Proceeding

This article discusses the role of a demurrer in an unlawful detainer proceeding, and how tenants have historically used it as a litigation tactic to delay entry of an eviction judgment against the tenant.

What is a Demurrer?

A “demurrer” is a pleading filed by a tenant challenging the legal sufficiency of a complaint.  It is a procedural device used in the initial stages of an eviction or other legal proceeding requesting that the court dismiss the case because of a technical defect in pleading the elements of an unlawful detainer claim for relief. 

The parties cannot present supporting or opposing evidence at this stage of the case.  Rather, the court’s role is limited to reviewing the allegations of the complaint and controlling case law to determine whether the case meets the minimum requirements necessary to proceed.  If the court finds that the demurrer has merit, it will dismiss the lawsuit.  If the legal defect is fixable, the court will permit the plaintiff to file an amended complaint correcting the deficiency.   

A demurrer can assert a variety of legitimate reasons why the complaint should be dismissed.  Some common reasons include arguments that the plaintiff lacks legal capacity to sue, the complaint lacks the required specificity, and the initial notice to vacate was defective in one or more respects. 

Improper Use of a Demurrer

Many tenants have used the demurrer process to extend the time the tenant can live rent- free at the property.  A demurrer must be resolved by the court before the case moves forward and it typically takes around 30 days (or more) for the demurrer to be heard and decided by the court.  Accordingly, the tenant can buy himself an additional month of rent-free living by filing a demurrer to an unlawful detainer complaint. 

How to Respond to a Demurrer

A landlord has few options when faced with a demurrer to his or her complaint.  If the demurrer has merit the landlord should consider voluntarily amending his complaint to fix the legal deficiency pointed out by the demurrer.  If the tenant files a demurrer that is totally and completely without merit, the landlord can respond by requesting monetary or evidentiary sanctions against the tenant for filing it.  CCP 128.7 provides the authority for such a motion.    

Unfortunately, under either of these approaches the tenant has accomplished his objective of delaying the proceeding, regardless of the demurrer’s merit or lack of merit.  The only way to avoid the delay is to file an application “shortening time” for the hearing on the demurrer so that the hearing takes place in a week or two as opposed to a month. 

Please contact Lynx Legal with any questions regarding the above, or if you are ready to start a case.  We can be reached at 888-441-2355 or info@lynxlegal.com.  Are experienced professionals are standing by to assist in any way we can.