There are many California unlawful detainer motions tenants should consider filing before responding to an unlawful detainer complaint. For example, filing a motion to strike an unlawful detainer complaint could result in the landlord having to start the eviction process all over. At San Diego Esquire, we can help you draft a California unlawful detainer motion to file with your local court. We provide unbundled landlord-tenant services to California residents Our legal document flat fee preparation service starts at $125.
Common California unlawful detainer motions include the following:
- Motion to Quash Service of Summons. The court summons and complaint must be served in a statutorily authorized manner. File a motion to quash service of summons if the opposing party did not properly serve you. The landlord will have another opportunity to serve you if your motion is successful. Common examples of what the court considers defective service include the following
- Placing a copy of the summons and complaint on the front doorstep and claiming the tenant was served. Most courts hold this to be inadequate service.
- Posting the summons and complaint on the front door without a court order.
- Serving the summons and complaint on any person within the unit and not subsequently mailing notice by mail.
The motion to quash must be served before filing a response to the unlawful detainer complaint. Per California Code of Civil Procedure section 418.10, the tenant can base the motion to quash on the court lacking jurisdiction over her to hear the matter because she was not properly served:
The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:
(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
(b) The person who filed the pleading does not have the legal capacity to sue.
(c) There is another action pending between the same parties on the same cause of action.
(d) There is a defect or misjoinder of parties.
(e) The pleading does not state facts sufficient to constitute a cause of action.
(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.
(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.
(h) No certificate was filed as required by Section 411.35.
(i) No certificate was filed as required by Section 411.36.
The motion to quash hearing must be set within 3-7 calendar days from filing the motion. Check with the local court clerk to find out when the court hears motions. At the hearing, the landlord will have to prove that the service made was valid. If the judge denies the motion, the tenant will have five days to respond to the unlawful detainer complaint.
2. Motion to Strike the Eviction Complaint. This type of motion challenges the landlord’s complaint. The motion states that the landlord’s complaint has serious defects such as containing false and irrelevant claims or involves improper issues. The landlord can amend the complaint and appear at the court proceeding to contest the motion. The motion to strike can delay the unlawful detainer case from proceeding for 7-10 days.
3. Demurrer. A tenant may file a demurrer to attack the legal sufficiency of the landlord’s complaint. Common examples of defects appearing on the face of the complaint include the document being filed in the wrong court, not stating specific grounds for the eviction, or failing to allege a default in rent and state the correct amount of past rent due.
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