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Lesson 6:
Pretrial Through Postrial Procedures

 

 

§6.01 Demurrer

A tenant has the right to demur to an unlawful detainer (UD) complaint. [See CCP §1170.] A demurrer must be filed within 5 days after service of the summons. [See CCP §§1167, 1167.3, 1170.]

The statutes governing UD actions do not provide for a shortened period of notice of hearing on a demurrer (as is the case for both a motion to quash and a summary judgment motion). Therefore the notice must specify a hearing date that [see CCP §1005(b); CRC 3.1320(c)–(d)]:

  • Conforms with CCP §1005—served and filed at least 16 court days before the hearing date, with 5 calendar days added if the places of mailing and destination address are both in California; and
  • Is not more than 35 days after filing or on the first available date thereafter.

However, for good cause you may order the hearing held on an earlier (or later) date and may prescribe appropriate notice. [See CRC 3.1320(d).]

After you rule on the demurrer, the parties have only 5 calendar days, rather than the usual 10 days, to answer or amend. [See CCP §1167.3; CRC 3.1320(g).] The time within which an answer must be filed runs from the date on which notice of the court’s decision on the demurrer is served, unless the defendant waives notice in open court and the waiver is entered in the minutes. [See CCP §§472b, 1019.5.] If the defendant fails to answer, you may enter a default. [See CCP §586(a)(2).]

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