A demurrer is a legal challenge that attacks the sufficiency of the complaint itself. It says: "Even if everything you allege is true, you still haven't stated a valid legal claim."
Under CCP 430.10(e), you can demurrer when the complaint "fails to state facts sufficient to constitute a cause of action."
Key point: A demurrer doesn't contest facts - it challenges whether the landlord properly pleaded a legal claim.
Code of Civil Procedure Section 1166 requires the complaint to:
- Set forth the facts on which plaintiff seeks to recover
- Describe the premises with reasonable certainty
- State the amount of rent in default (if applicable)
- State whether possession is pursuant to a lease
- State whether proper notice has been given
- Attach a copy of the notice (or explain why not)
The phrase "set forth the facts" is critical - landlords cannot make vague conclusory allegations.
You have 5 CALENDAR DAYS to respond - not 30 days like regular civil cases.
How to Calculate:
- Personal service: Start counting the next day
- Substituted service: Add 10 days for mailing + 5 days to respond
- Service by posting: Add 10 days for mailing + 5 days to respond
If the last day is a weekend/holiday, you have until the next court business day (CCP 12a).
Missing this deadline = default judgment = sheriff lockout within days. File something - even a basic answer - before this deadline.
| Protection | Residential | Commercial |
|---|---|---|
| Habitability Defense | Yes (CC 1941) | No |
| Retaliatory Eviction | Protected (CC 1942.5) | Limited |
| Just Cause Required | Yes (AB 1482) | No |
| Rent Control | Permitted | Prohibited |
This guide is for residential tenants only. Commercial tenants have different rules.
The #1 defect: The complaint doesn't say what you actually did wrong.
What violation? When? How? This tells you nothing.
What did the tenant do? When? How does it breach Paragraph 12?
The complaint must allege WHAT you did, WHEN you did it, and HOW it violated the lease.
Complaints often fail to state when the alleged violation occurred. This matters because:
- You need to know what conduct is at issue
- Timing affects whether notice was proper
- Retaliatory eviction has timing requirements (CC 1942.5)
When? Which occupants? For how long?
The complaint must match the 3-Day Notice. If they allege different things, it's a fatal defect.
Palm Property Investments v. Yadegar (2011): The complaint must be based on the same grounds stated in the notice.
- Notice says: "unauthorized pet"
- Complaint says: "property damage from animals"
These are different claims - the complaint improperly expands beyond the notice.
Many complaints just say "notice was properly served" without stating HOW.
CCP 1162 requires service by:
- Personal service on tenant
- Leave with person of suitable age AND mail
- Post on premises AND mail
Who served it? When? How? This is a legal conclusion, not facts.
CCP 1166 requires the complaint to attach a copy of the notice or explain why not.
If the notice isn't attached and no explanation is given, this violates the statute.
This is especially important when you need to compare the notice to the complaint allegations for contradictions.
Before filing, you must attempt to meet and confer with opposing counsel.
In UD cases with only 5 days, strict compliance is often impossible.
Best Practice:
- Call/email opposing counsel immediately
- Identify the specific defects
- Ask if they'll stipulate to amend
- Document everything in your declaration
Your demurrer package should include:
- Demurrer - The formal notice listing grounds
- Memorandum of Points and Authorities - Your legal argument
- Declaration - Meet and confer efforts
- Proof of Service - How you served opposing counsel
Statutes:
- CCP 1166 - Required contents of UD complaint
- CCP 1161(3) - Grounds for breach eviction
- CCP 430.10(e) - Failure to state facts
- CCP 430.10(f) - Uncertainty
Cases:
- Blank v. Kirwan (1985) 39 Cal.3d 311 - Standard of review
- Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10 - Specificity required
- Palm Property v. Yadegar (2011) 194 Cal.App.4th 1419 - Notice must match complaint
- Vasey v. California Dance (1977) 70 Cal.App.3d 742 - Must apprise defendant of claims
Yes, you can file both simultaneously. CCP 430.80 allows this.
Why do this:
- If demurrer is overruled, your answer is already on file
- You preserve affirmative defenses (habitability, retaliation)
- No risk of missing deadlines
Many attorneys file both to preserve all options.
4. On December 1, 2025, Plaintiff served Defendant with a 3-Day Notice to Perform or Quit.
5. Defendant violated the terms of the 3-Day Notice.
6. The 3-day period has expired and Defendant has failed to cure or vacate.
7. Defendant continues to unlawfully occupy the premises.
Why It's Defective:
- "Violated the terms" = pure conclusion - doesn't say WHAT
- No dates of alleged violation
- No specific facts
- No notice attached
- No service facts
4. The lease prohibits unauthorized occupants without written consent (Para. 8).
5. On November 15, 2025, Plaintiff observed John Doe residing at the premises.
6. Defendant confirmed John Doe had been living there two weeks without consent.
7. On December 1, 2025, Plaintiff personally served a 3-Day Notice (Exhibit A).
8. The Notice period expired December 4, 2025, and John Doe remains.
Why It's Sufficient:
- Specific violation (unauthorized occupant John Doe)
- Specific dates
- Explains how it violates lease (Para. 8)
- Service details provided
- Notice attached
| Element | Defective | Sufficient |
|---|---|---|
| What | "Violated Notice" | "Unauthorized occupant John Doe" |
| When | No dates | "Nov 15 - Dec 4, 2025" |
| How | Not explained | "Violates Lease Para. 8" |
| Service | "Was served" | "Personally served Dec 1 at 3PM" |
| Notice | Not attached | Attached as Exhibit A |
- Complaint is genuinely defective - Clear pleading failures
- Defect is obvious and significant - Not minor technical issues
- You need more time - Demurrer hearing delays trial by weeks
- Force specificity - Even if sustained with leave, you get clearer complaint
- Preserve appellate issues - Some objections are waived if not raised by demurrer
- Complaint is sufficient - Don't file losing demurrers
- Strong affirmative defenses - Habitability, retaliation need an Answer
- Want quick trial - Sometimes delay hurts you
- Easy to cure - If landlord can easily fix it, you're just delaying
- Pro se and unsure - Bad demurrers hurt credibility
Sustained WITH Leave to Amend (Most Common)
Complaint is defective, but landlord gets 5-10 days to fix it. You then respond to amended complaint.
Sustained WITHOUT Leave to Amend
Case dismissed entirely. Rare - usually only after multiple failed amendments.
Overruled
Complaint is sufficient. Case proceeds. You have 5 days to file Answer (unless you already filed one).
Overruled ≠ you lose. It just means you must defend on the merits.
CCP 430.80: Some objections are waived forever if not raised by demurrer:
- Failure to state facts sufficient (430.10(e))
- Uncertainty (430.10(f))
- Failure to attach written contract (430.10(g))
Bottom line: If the complaint is vague or fails to state a claim, you MUST demurrer or lose the objection forever.
No. A demurrer only challenges the complaint's legal sufficiency. Habitability, retaliation, and other affirmative defenses must be raised in your Answer.
Solution: File both a demurrer AND an answer to preserve all your rights.
Yes, but demurrers are technical legal documents. California courts have self-help centers that can provide limited assistance.
If filing pro se, strongly consider also filing a basic Answer to protect your defenses if the demurrer is overruled.
The landlord can request default judgment. You lose without ever being heard.
To set aside default, you must show:
- Excusable neglect or mistake
- Diligent action once you discovered the default
- A meritorious defense
This is governed by CCP 473 and is not guaranteed. Many defaults are NOT set aside.
CCP 430.41 requires you to contact opposing counsel before filing to discuss the defects and attempt resolution.
In regular civil cases: 5 days before filing.
In UD cases: The compressed timeline makes strict compliance nearly impossible. Courts are generally lenient if you made good faith efforts.
Demurrer: Challenges whether the complaint states a valid legal claim. Attacks the whole complaint or cause of action.
Motion to Strike: Attacks specific language, paragraphs, or improper allegations within an otherwise valid complaint.
Use demurrer when the entire complaint (or cause of action) is defective. Use motion to strike for specific problematic portions.