Prepare a Demurrer

Read the case of Doe vs. City of Los Angeles 2007

Take the facts from the above case and then copy and paste the sample demurrer below and replace the text, the dates, the names of the parties, and other information in the sample demurrer

Take the facts from the above case and then copy and paste the sample demurrer below and replace the text, the dates, the names of the parties, and other information in the sample demurrer, and then go ahead and copy and paste it in the assignment box here in.

Sample Demurrer

Xxxxx

Xxxxxx

xxxxxxxx

SUPERIOR COURT OF CALIFORNIA

SANTA CLARA COUNTY SUPERIOR COURT

CIVIL DIVISION, DOWNTOWN FACILITY

XXXXXXXXXX,

​Plaintiff,

​v.

XXXX

​Defendant.

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Case No.:

NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDM OF POINTS AND AUTHORITIES

DATE: September 29, 2010

TIME: 9:15AM

DEPT.: 11

NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT BY DEFENDANT

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

​PLEASE TAKE NOTICE THAT on September 29, 2010, at 9:15 am, or as soon after that as the matter can be heard, in Dept. 11 of the above-entitled Court located at 191, N First St., San Jose, CA, Defendant, xxxxxxxxx will move the Court for an order sustaining a general demurrer to the unlawful detainer complaint filed by Plaintiff without leave to amend.

​This demurrer is made pursuant to Code of Civil Procedure §1170 on the grounds that the three-day notice served on Defendant is defective as it does not contain the information required by Code of Civil Procedure §1161(2), and further that the three-day notice overstates the amount due, thus it is fatally defective and will not support an unlawful detainer action.

​This demurrer is based upon this notice of demurrer, the attached demurrer, the memorandum of points and authorities, and upon such oral and documentary evidence as may be presented by Defendant upon the hearing of the demurrer.

DATED: ____________________________

​________________________,

Defendant, In Pro Per.

Memorandum of Points and Authorities

I. STATEMENT OF FACTS
Defendant leases a residential accommodation owned by Plaintiff. A written lease agreement (see Plaintiffs’ complaint of file which includes a written lease agreement) was signed in year 2002. The written lease states a monthly rent of $1700.

Defendant was served a three-day notice to pay or quit on July 28, 2010. Plaintiff has filed a suit against Defendant alleging unlawful detainer, the summons were received in mail by Defendant on Aug. 26, 2010.

The three-day notice to pay or quit served on Defendant on July 28, 2010, demands a $1900 payment for the month of July 2010, including late fees for the months of June 2010 and July 2010.

II. DEMURRER IS PROPER IN THIS CASE BECAUSE PLAINTIFF HAS FAILED TO STATE A CAUSE OF ACTION.

Code of Civil Procedure (CCP) § 430.10 provides, in pertinent part:

The party against whom a complaint or cross-complaint has been filed may object by demurrer . . . on any of the following grounds:

(e) The pleading does not state facts sufficient to constitute a cause of action.

Here, Plaintiff’s Complaint fails to state facts sufficient to constitute a cause of action. As such, demurrer is proper.

III. NOTICE REQUIREMENTS IN UNLAWFUL DETAINERS ARE STRICTLY CONSTRUED. THERE IS NO CAUSE OF ACTION FOR UNLAWFUL DETAINER IF THE THREE-DAY NOTICE TO PAY OR QUIT IS DEFENCTIVE.

The rule of liberal construction of pleadings provided by CCP §452 is inapplicable in unlawful detainer actions. Because unlawful detainer is an action seeking forfeiture and is a summary proceeding in which the defendant’s normal procedural rights are limited, the courts strictly construe the statutory procedures that regulate unlawful detainers and require strict compliance with all statutory requirements. California Civil Code §1442; see also Kwok v. Bergren (1982) 130 Cal.App.3d 596, 599; Briggs v. Electronic Memories & Magnetic (1975) 53 Cal. App.3d 900, 905; Liebovich v. Shahrokhkany (1997) 56 Cal.App.4th 511, 513. Stating correct amount due on the three-day notice is a prerequisite to an action in unlawful detainer.

Based on analysis of Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, Johnson v. Sanches (1942) 56 Cal.App.2d 115 and Code Civil Procedure §1161, in Ernst Enter., Inc. v Sun Valley Gasoline, Inc. (1983) 139 Cal.App.3d 355, 359 the court ruled that a notice to pay rent or quit which overstates the rent due is ineffective and will not support an action for unlawful detainer.

Here, the three-day notice to pay or quit includes late fees in the rent due amount of $1900. Code Civil Procedure §1161 states that a three day notice to pay or quit shall include the rent due and not “rent and other charges” due. As noted above, because unlawful detainer is an action seeking forfeiture and is a summary proceeding in which the defendant’s normal procedural rights are limited, the courts strictly construe the statutory procedures that regulate unlawful detainers and require strict compliance with all statutory requirements. Since the three-day notice includes an amount that is greater than the rent due for the month of July 2010, the three day notice is defective on its face.

Still further, the three-day notice includes a late fees of $100. Since Plaintiff did not serve the three day notice in June, including the late fees charges for June causes the three-day notice to be defective.

V. CONCLUSION

Plaintiff’s Complaint fails to state a cause of action due to Plaintiff’s failure to comply with the requirements of California Code of Civil Procedure §1161. Because the defect is in the notice, Plaintiff cannot amend the Complaint to state a cause of action. As such, Defendantrespectfully request that this Demurrer be sustained pursuant to California Code of Civil Procedure §430.10 without leave to amend.

DATED: ____________________________

​________________________,

Defendant, In Pro Per.

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