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Any Attorney or Party


Any Street
Any Town, CA 55555

714-555-5555

Any Attorney or Party

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Superior Court of the State of California

For the County of _________________

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Any Plaintiff,

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Plaintiff,
vs.
Any Defendant, and DOES 1-5

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Defendants.

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Case No.
NOTICE OF DEMURRER AND DEMURRER TO
COMPLAINT; MEMORANDUM OF POINTS AND
AUTHORITIES
DATE:
TIME:
DEPT:

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- 1 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT

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NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT BY DEFENDANT


________________________________________

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TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD:


PLEASE TAKE NOTICE that on _______________ at ___________, or as soon thereafter as

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the matter may be heard, in Department ___of the above entitled court, located at

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___________________________________________, Defendant, _________________________,

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will and hereby does move the Court for an order sustaining a general demurrer to the unlawful

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detainer complaint filed by Plaintiff without leave to amend.

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This demurrer is made pursuant to Code of Civil Procedure 430.10 and 1170 on the

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grounds that the defective three-day notice served on Defendant and attached to the complaint will
not support an unlawful detainer action as it fails to state a cause of action for unlawful detainer as it

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USE THE FIRST EXAMPLE BELOW IF THE THREE-DAY IS A NOTICE TO PAY RENT

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OR QUIT THAT IS DEFECTIVE IN SOME WAY

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does not contain the information required by Code of Civil Procedure 1161(2), and that the threeday notice overstates the amount of rent due as it requests a late charge of $___, thus it is fatally
defective and will not support an unlawful detainer action.

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USE THE SECOND EXAMPLE BELOW IF THE THREE-DAY IS A NOTICE TO

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PERFORM COVENANT OR QUIT THAT IS DEFECTIVE IN SOME WAY

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- 2 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT

the three-day notice does not contain the information required by Code of Civil Procedure 1161[c]

(3) as it fails to describe with specificity the particular conditions or covenants alleged to have been

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violated, 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.

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DATED: ________________ _________

_____________________________________________
Any Attorney or Party

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- 3 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT

DEMURRER TO PLAINTIFFS COMPLAINT

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Defendant, __________________________ (Defendant) hereby generally demurs to the


unlawful detainer complaint filed by Plaintiff (Plaintiff) as follows:

FIRST GROUND FOR DEMURRER

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1.

Defendant generally demurs to the unlawful detainer complaint filed by Plaintiff on

the grounds that the three-day notice alleged in the complaint fails to include the payment

information required by Code of Civil Procedure 1161(2), thus the complaint on its face fails to

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state a cause of action in unlawful detainer based on non-payment of rent, or any other cause of
action in unlawful detainer.
SECOND GROUND FOR DEMURRER

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2.

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the grounds that the three-day notice alleged in the complaint overstates the amount of rent due as it

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clearly requests a late charge of $____, thus it is fatally defective and will not support an unlawful

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Defendant generally demurs to the unlawful detainer complaint filed by Plaintiff on

detainer action. Thus the complaint on its face fails to state a cause of action in unlawful detainer

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based on non-payment of rent, or any other cause of action in unlawful detainer.


THIRD GROUND FOR DEMURRER

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3.

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grounds that the three-day notice alleged in the complaint does not contain the information required

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Defendant generally demurs to the unlawful detainer complaint filed by Plaintiff on the

by Code of Civil Procedure 1161[c](3) as it fails to describe with specificity the particular

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conditions or covenants alleged to have been violated, thus it is fatally defective and will not support
an unlawful detainer action.

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- 4 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT

Be sure to modify these paragraphs to suit your individual

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situation. Do NOT just use the wording here unless it definitely applies
to your particular situation. Remember that any missing information

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from the three-day means it is defective and will not support an


unlawful detainer action.
DATED: ________________ ________

_____________________________________________
Any Attorney or Party

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- 5 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT

MEMORANDUM OF POINTS AND AUTHORITIES

I.

PRELIMINARY STATEMENT

The unlawful detainer complaint filed by Plaintiff incorporates by reference

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USE THE FIRST EXAMPLE BELOW IF THE THREE-DAY IS A NOTICE TO PAY RENT
OR QUIT THAT IS DEFECTIVE IN SOME WAY

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a three-day notice to pay rent or quit that does not contain the information required by Code
of Civil Procedure 1161(2), and that the three-day notice overstates the amount of rent due as it
requests a late charge of $___, thus it is fatally defective and will not support an unlawful detainer
action.

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USE THE SECOND EXAMPLE BELOW IF THE THREE-DAY IS A NOTICE TO

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PERFORM COVENANT OR QUIT THAT IS DEFECTIVE IN SOME WAY

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a three-day notice to perform covenant or quit that does not contain the information required
by Code of Civil Procedure 1161(c)(3) as it fails to describe with specificity the particular

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conditions or covenants alleged to have been violated, thus it is fatally defective and will not support
an unlawful detainer action.

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Thus the complaint alleges and incorporates a three-day notice that is defective on its face.

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Therefore, the complaint fails, on its face, to state a cause of action in unlawful detainer based

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on non-payment of rent, non-performance of conditions and covenants or any other cause of action in

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unlawful detainer
For these reasons, this demurrer should be granted in its entirety without leave to amend.

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- 6 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT

Be sure to modify these paragraphs to suit your individual

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situation. Do NOT just use the wording here unless it definitely applies
to your particular situation.

II.

ARGUMENT

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A.

THE COURT IS AUTHORIZED TO GRANT THIS DEMURRER

Under Code of Civil Procedure 1170, a defendant in an unlawful detainer proceeding may
answer or demur. The period for noticing the hearing on a demurrer is not set forth in the
unlawful detainer statutes, Sections 1159 through 1179a.
However, Section 1177 provides that all provisions of law contained in Part 2 of the Code of

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Civil Procedure (the ones applicable to regular civil actions) are otherwise generally applicable to

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unlawful detainer actions, unless other procedures are specified in the unlawful detainer statutes.

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Since the unlawful detainer statutes do not provide for the timing of a hearing on a demurrer, the

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timing for demurrers is governed by Code of Civil Procedure 1005, which requires 16 court days

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notice of the hearing on the demurrer, plus five calendar days for notice by mailing. Thus, this

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demurrer is properly before the Court and notice is proper.

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Remember to make sure that you give proper notice, Court days

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means Monday through Friday, except for Court holidays. You must
give 16 Court days notice, plus five (5) more calendar days if the notice
is mailed. You should get a Court date 4-5 weeks from the date you file

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your Demurrer, no later than 35 days, or the earliest date the Court
- 7 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT

clerk will give you. If you dont the Judge will not like it because they

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will think that you were deliberately trying to schedule your hearing
date to delay the eviction and will most likely overrule your Demurrer.

The failure of the pleading to state a cause of action results from the fact that the complaint

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appears deficient on the face of the pleading or from judicially noticed matter. Hall vs. Chamberlin,

(1948) 31 Cal.2d 673, 679-680.

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If a defendant negates any essential element of a particular cause of action, a judge should
sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp.(1992) 4 Cal.App.
4th 857, 880. Thus, the Court is authorized to grant this demurrer.
The fact that plaintiff used a Judicial Council form complaint does not preclude moving

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defendant from filing a demurrer as a defendant may demur to a Judicial Council form complaint on

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the same grounds as any other complaint. To be demurrer-proof, a form complaint must state all

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facts essential to a cause of action under existing statutes or case law. See People ex rel Dept of

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Transp. v. Superior Court (1992) 5 Cal. App. 4th 1480, 14841486. See also California Judges

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Benchguides: (Benchguide 31, 2015), Landlord-Tenant Litigation: Unlawful Detainer, 31.49, pg.

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31-53.

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B.

A DEFECTIVE THREE-DAY NOTICE, ATTACHED TO AND

INCORPORATED AND ALLEGED IN AN UNLAWFUL DETAINER COMPLAINT

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RENDERS THE COMPLAINT GENERALLY DEMURRABLE


Because the three-day notice alleged in the complaint is defective for several reasons the
complaint is subject to a general demurrer on that basis.
The three-day notice alleged in the complaint is defective for the following reasons:

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The payment information which is absent is the usual hours and days on which rent can be
paid. The California legislature has determined that the payment information is just as legally
important as the requirement that the amount of rent due be stated, and the statement that the rent or
possession of the property must be demanded in the alternative.
Code of Civil Procedure section 1161, subdivision (2), provides a tenant is guilty of unlawful

detainer, "When he or she continues in possession, in person or by subtenant, without the permission

of his or her landlord, or the successor in estate of his or her landlord, if applicable, after default in

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the payment of rent, pursuant to the lease or agreement under which the property is held, and three
days' notice, in writing, requiring its payment, stating the amount which is due, the name, telephone
number, and address of the person to whom the rent payment shall be made, and, if payment may be

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made personally, the usual days and hours that person will be available to receive the payment

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(provided that, if the address does not allow for personal delivery, then it shall be conclusively

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presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and

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address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant

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can show proof of mailing to the name and address provided by the owner), or the number of an

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account in a financial institution into which the rental payment may be made, and the name and street

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address of the institution (provided that the institution is located within five miles of the rental

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property), or if an electronic funds transfer procedure has been previously established, that payment

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may be made pursuant to that procedure, or possession of the property, shall have been served upon

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him or her and if there is a subtenant in actual occupation of the premises, also upon the subtenant."
(emphasis added).
Prior to 2001, Code of Civil Procedure section 1161, subdivision (2), required the three-day
notice to state the amount of rent that was due, without listing any information regarding how

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payment was to be made. See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 985 (2001-2002

Reg. Sess.) as amended May 17, 2001, p. 3. The information regarding how payment had to be made

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was added to the statute because of concerns that, without the information in the notice, "the tenant is
unsure of whom to pay, and this confusion could lead to an unlawful detainer action. (Id. at p. 6.)
For a residential tenancy such as this one, the 3-day notice to pay rent or quit must accurately

state the amount that is due and various other payment information. A notice that overstates the

amount of rent due is ineffective and will not support an unlawful detainer action. See Levitz

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Furniture Co. v Wingtip Communications, Inc. (2001) 86 Cal.App. 4th 1035, 1038, 1040, see also
Bevill v Zoura (1994) 27 Cal.App. 4th 694, 696698.
One purpose of this provision is to discourage landlords from claiming an overdue rental

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figure that is so exaggerated that a tenant would never choose to pay. Levitz Furniture Co. v Wingtip

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Communications, Inc., supra, 86 Cal.App. 4th at 1040.

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Even a minor overstatement of the rent due may be sufficient to render the notice defective.
See Nourafchan v Miner (1985) 169 Cal. App. 3d 746, 763. In that case the Court of Appeal ruled

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that a $5.96 error when more than $1000 rent was due rendered the notice defective. See also

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California Judges Benchguides: (Benchguide 31, 2015), Landlord-Tenant Litigation: Unlawful

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Detainer, 31.20, pg. 31-21.

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In this case the three-day notice at one point states that the total amount due is $___________
yet also states later in the notice that the total amount due is $_____________.

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"A valid three-day pay rent or quit notice is a prerequisite to an unlawful detainer action.
"[s]trict compliance with the specifically prescribed notice conditions is a prerequisite to

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invoking the summary procedures of unlawful detainer." Parsons v. Superior Court (2007) 149

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Cal.App.4th Supp. 1, 6.

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[Citations.] Because of the summary nature of an unlawful detainer action, a notice is valid only if

the lessor strictly complies with the statutorily mandated notice requirements. [Citation.]" Bevill v.

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Zora, supra, 27 Cal.App.4th at p. 697.


The purpose of the three-day notice is to give the tenant the opportunity to pay the rent due
and retain possession by avoiding forfeiture." See Valov v. Tank (1985) 168 Cal.App.3d 867, 874.
The tenant must be informed of precisely what he or she must do to pay rent and thereby
remain in possession. (Ibid.) A notice which does not accurately state the total amount of rent due, or
that fails to tell the tenant the usual days and hours that the specified person will be available to
receive payment does not inform a tenant of what he or she must do to pay rent.
To the extent there is any ambiguity whether the notice must contain the statement that

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informs the tenant of the usual days and hours that the specified person will be available to receive

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payment the ambiguity should be resolved so as to require the statement. Doing so is consistent with

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the purpose and legislative history of the statute, and with decisional law which requires strict

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compliance with statutory notice requirements contained in Code of Civil Procedure section 1161 et

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seq. See Culver Center Partners East No. 1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185

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Cal.App.4th 744, 749. Only by so requiring will the notice inform the tenant precisely what he or she

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must do to pay rent and avoid an eviction, see Valov v. Tank, supra, 168 Cal.App.3d at p. 874), and

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reduce the possibility of confusion that may otherwise result see Assem. Com. on Judiciary, Analysis

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of Sen. Bill No. 985, supra, at p. 6.

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An unlawful detainer action based on failure to pay rent must be preceded by a three-day

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notice to the tenant to pay rent or quit the premises. Failure to state the exact amount of rent due in

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the notice is fatal to the subsequent unlawful detainer action. Lynch & Freytag v. Cooper (1990) 218

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Cal.App.3d 603, 606, fn. 2 (internal citations omitted.)

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And this court may take judicial notice of all attached exhibits to the complaint including the
three-day notice attached as exhibit 2.
Facts appearing in exhibits to a complaint, like well-pleaded allegations in the complaint, are
taken as true on demurrer. See Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624,
1627. When the facts in exhibits are contrary to the facts alleged in the complaint, however, the
exhibits take precedence. (Ibid.)
We need not accept as true allegations that are contradicted or inconsistent with matters
subject to judicial notice, including exhibits attached to the complaint. See Del E. Webb Corp. v.
Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; see also Holland v. Morse Diesel Intern.,
Inc. (2001) 86 Cal.App.4th 1443, 1447; see also Schifando v. City of Los Angeles (2003) 31 Cal.4th
1074, 1081.
Code of Civil Procedure 1161(2) requires the three-day notice to state the amount of rent
that is due. As the amount of rent in this case is overstated by $________ this Court should sustain
the demurrer.

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The three-day notice alleged in the complaint requests a late charge of $____ yet there

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is no provision in the lease agreement attached to the complaint that states that the parties agree upon

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an amount of liquidated damages which shall be presumed to be the amount of damage sustained by

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a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult

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to fix the actual damage as required by California Civil Code 1671. Thus the complaint fails to state

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a cause of action for unlawful detainer as the three-day notice attached to the complaint is defective

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as it includes the amount of $___ for an alleged late charge. A California Appellate Court has

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ruled that a late charge, which is a liquidated damages provision, contained in a residential lease is

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normally void pursuant to the provisions of Civil Code 1671. As is apparent from the language of

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section 1671, a liquidated damages provision in a residential lease is normally void, except where the

parties specifically agree and when, from the nature of the case, it would be impracticable or

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extremely difficult to fix the actual damage. Orozco v. Casimiro (2004) 121 Cal.App.4th Supp. 7,
10, 11. See also California Judges Benchguides: (Benchguide 31, 2015), Landlord-Tenant
Litigation: Unlawful Detainer, 31.78, pg. 31-66. NO such provision appears in the lease attached to
the complaint.
The three-day notice alleged in the complaint fails to contain the information required by
Code of Civil Procedure 1161[c](3) as it fails to describe with specificity the particular conditions
or covenants alleged to have been violated, thus it is fatally defective and will not support an
unlawful detainer action.
The law in California is clear that if the breach alleged is nonperformance of conditions or

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covenants, the plaintiff must allege in the complaint the particular conditions or covenants, neglect or

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failure to perform, service of a 3-day notice requiring performance or possession, failure to perform

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within 3 days, and continued possession. See Code of Civil Procedure 1161(c)(3), see also

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McCarty v. Raso (1951) 102 Cal.App. 2d 909, 910.


C.

BECAUSE UNLAWFUL DETAINERS ARE SUMMARY PROCEEDINGS

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SEEKING FORFEITURE, STRICT COMPLIANCE WITH ALL STATUTORY

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REQUIREMENTS MUST BE SHOWN

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The rule of liberal construction of pleadings provided by Code of Civil Procedure 452 is not

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applicable in unlawful detainer actions.


Because unlawful detainer is an action seeking forfeiture and is a summary proceeding in

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which the defendants normal procedural rights are limited, the courts strictly construe the statutory

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procedures that regulate unlawful detainers and require strict compliance with all statutory

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requirements. See California Civil Code 1442; see also Liebovich v. Shahrokhkany (1997) 56

Cal.App.4th 511, 513. Stating the required statutory information on the three-day notice is a

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prerequisite to an action in unlawful detainer. Because the three-day notice attached to the complaint
is clearly defective, this Court should sustain the demurrer.

Be sure to modify these paragraphs to suit your individual


situation. Do NOT just use the wording here unless it definitely applies
to your particular situation.
D.

DEFENDANTS DEMURRER SHOULD BE SUSTAINED WITHOUT LEAVE

TO AMEND
Defendant contends that the Court should sustain their general demurrer without leave to

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amend because it cannot be presumed that a new and proper notice will be served and that defendant

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would fail to comply with a new notice. See Hinman v. Wagnon (1959) 172 Cal.App 2d 24, 27.

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Also a new cause of action for unlawful detainer on the basis of a new notice would result in a

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new cause of action that arose after the complaint was filed, this is not proper in an amended
complaint, only a supplemental complaint.
Defendant also contends that it is entitled to Judgment against Plaintiff for costs, and if
applicable, attorney fees as well.
A plaintiff seeking to avoid the sustaining of a demurrer without leave to amend to a

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complaint for a defect in pleading must show in what manner he can amend his complaint and how

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that amendment will change the effect of his pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335,

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349; see also Hendy v. Losse (1991) 54 Cal.3d 723, 742.

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The plaintiff has the burden of proving that an amendment would cure the defect. Schifando v.
City of Los Angeles (2003) 31 Cal.4th 1074, 1081.
The burden of proving such reasonable possibility is squarely on the plaintiff.' Maxton v.
Western States Metals (2012) 203 Cal.App.4th 81, 95. To satisfy this burden, "`a plaintiff "must show
in what manner he can amend his complaint and how that amendment will change the legal effect of

his pleading"'" by clearly stating not only the legal basis for the amendment, but also the factual

allegations to sufficiently state a cause of action. (Ibid.)

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Be sure to modify these paragraphs to suit your individual


situation. Do NOT just use the wording here unless it definitely applies
to your particular situation.

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III.

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CONCLUSION

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Based on the foregoing facts, arguments, and points of law, the Court is urged to sustain

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Defendants general demurrer to the unlawful detainer complaint filed by Plaintiff without leave to
amend, and that Defendant have Judgment against Plaintiff for costs, and if applicable, attorney fees.

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DATED: ________________ ________

_____________________________________________
Any Attorney or Party

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PROOF OF SERVICE

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I am over the age of 18 and not a party to this action.


I am a resident of or employed in the county where the mailing occurred; my
business/residence address is: ADDRESS OF PERSON SERVING PAPERS.
On ____________________ I served the foregoing document(s) described as: NOTICE OF
DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND
AUTHORITIES to the following parties:

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NAME AND ADDRESS OF ATTORNEY OR PLAINTIFF WITHOUT AN ATTORNEY

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[X] (By U.S. Mail) I deposited such envelope in the mail at ______________,
California with postage thereon fully prepaid. I am aware that on motion of the
party served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.

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DATED: ______________
_______________________________________
NAME OF PERSON SERVING PAPERS

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