1

2 Defendant in Pro Per.

3 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

4 IN AND FOR THE COUNTY OF FRESNO

5 B.F. SISK COURTHOUSE

6 ) Case No.:
)
7 LANDLORD’S NAME )
) NOTICE OF DEMURRER AND
8 Plaintiff. ) DEMURRER TO COMPLAINT;
) MEMORANDUM OF POINTS AND
9 vs. ) AUTHORITIES; PROPOSED ORDER
)
10 TENANT’S NAME ) DATE:
) TIME:
11 Defendant. ) DEPT.:
12

13
NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT BY DEFENDANT
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///
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE THAT on ______________, 2017, at ________, or as soon
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after that as the matter can be heard, in Dept. ____of the above-entitled Court located at
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1130 “O” Street, Fresno, CA 93724, Defendant, [insert name] will move the Court for an
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order sustaining a general demurrer to the unlawful detainer complaint filed by Plaintiff
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without leave to amend.
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This Demurrer is made pursuant to Code of Civil Procedure (CCP) §1170 on the
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grounds that the pleading does not state facts sufficient to constitute a cause of action, and
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thus is fatally defective and will not support an unlawful detainer action.
24

25

1
Notice of Demurrer and Demurrer to Complaint served on Defendant on
 1 This demurrer is based upon this notice of demurrer, the attached demurrer, the

2 memorandum of points of authorities, and upon such oral and documentary evidence as

3 may be presented by Defendant upon the hearing of Demurrer.

4 The single page document which combined both a 3 Day notice, and a 60 day Notice of

5 Termination, dated March 31, 2017, and allegedly given to Defendant via personal service

6 same date is fatally defective on the following grounds:

7 NOTE: Plaintiff’s Exhibit #3 (Proof of Service) falsely claims that Defendant was

8 personally served with the required three day Pay or Quit Notice on March

9 31, 2017. This is patently untrue. However, this point is moot because the

10 combined 3/60 Day Notice was attached to the Complaint [See Plaintiff

11 Exhibit #2] allowing Defendant the opportunity to inspect the Notice. Had

12 Defendant received the Notice as Plaintiff declares, the combined 3/60 Day

13 Notice is fatally defective, as enumerated below:

14 (1) The large print title of the combined 3/60 Day Notice [See Plaintiff’s Exhibit #2] is

15 confusing as it reads, “TO PAY RENT AND NOTICE OF TERMINATION”. The wording

16 is not stated in the alternative indicating the possibility of curing the default. Also, by

17 combining a 3 Day Notice with a 60 Day Notice in a single page document, the Notice is

18 creates patent uncertainty and confusion. According to the California Civil Code (CIV)

19 §789.56(e)(1) the statute allows a 60 Day Notice of Termination to be delivered at the same

20 time as a three Day Notice to Pay or Quit, however the two Notices should be separate and

21 individual.

22 Although the possibility to cure is found in the much smaller print of the remaining

23 paragraphs, the Defendant had to read the Notice multiple times to understand it due to the

24 ambiguous wording of the Notice. All the more so because Defendant previously received

25 a three day Pay or Quit Notice, via personal service and Certified USPS mail, on March 15,

2017 [See Defendant Exhibit #1 and #2 attached]. Although the language was stated in the

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Notice of Demurrer and Demurrer to Complaint served on Defendant on
 1 alternative in the March 15th Notice, the document failed to provide specific language

2 pursuant to the California Civil Code, Chapter 2.5 California Mobilehome Residency

3 Law [§§798-799.11]. Specifically, the March 15th notice did not include the paragraphed

4 provision required pursuant to CIV §789.56(e)(1) as follows:

5 “Warning: This notice is the [insert number] three-day notice for nonpayment of

6 rent….”

7 (2) The March 31st Notice does contain the above required paragraph, but Plaintiff

8 failed to insert the number (in this case the proper number would have been “1”) in the first

9 paragraph as required by CIV §789.56(e)(1). The Legislative intent in including the

10 requirement was to make sure that homeowners were aware that after curing a third Pay or

11 Quit Notice they are not entitled, by law, to receive a fourth, prior to being served with a 60

12 Day Notice of Termination. However, under the implied policy of ‘Good Faith and Fair

13 Dealing’ many landlords are hesitant to apply the statute so harshly, especially if the tenant

14 otherwise abides by the rules and regulations as agreed to in the written rental agreement.

15 (3) The Notice dated March 31, 2017 does not contain the information required by CCP

16 §1161(2), which requires that the landlord state the name of the person whom will accept

17 the rental payment. The business name of ‘xxxxx Association’ does not suffice to meet the

18 requirement.

19 (4) On the Proof of Service attached to the Complaint [See Plaintiff’s Exhibit #3]

20 Plaintiff failed to check the box indicating that a 60 Day Notice of Termination was served.

21 Thus, the ambiguousness of the wording in the combined “THREE DAY NOTICE TO

22 PAY AND NOTICE OF TERMINATION” along with the defective Proof of Service

23 attached render the combined single page Notice fatally defective as the pleading does not

24 state facts sufficient to constitute a cause of action.

25 DATED: ____________________________ ____________________________,

Defendant, In Pro Per

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Notice of Demurrer and Demurrer to Complaint served on Defendant on