In my most recent evictions, I noticed more tenants filing delay motions to slow down the eviction process. Considering that more tenants are becoming educated in the ways of evictions, I thought it would be a good idea to cover of the more common delay procedures.

1.   Motion to Quash Summons. California Code of Civil Procedure §418.10. This motion is intended to test the validity of the service of the complaint, the sufficiency of the summons. That is, whether the plaintiff has the basis to use the 5 day summons. The Code (Code of Civil Procedure §1167.4) requires that the motion to quash be set for hearing no earlier than three (3) days and no later than seven (7) days after the tenant’s last date to file their response to the complaint. Until the motion is heard and decided on, the tenant does not have to file an answer to the complaint. It would appear that after the filing of a Motion to Quash, when the tenant is required to file its response, the tenant can still file other delay motions.

Regardless of the merits, if a tenant files a motion to quash, assuming the hearing date is properly set, such a motion will delay the tenant having to file an answer for over one week.

2.   Demurrer. California Code of Civil Procedure §430.10. This procedure generally allows a tenant to object to the pleading based on defects apparent on the face of the pleading or object because the pleading is vague or ambiguous. This procedure may also be used in responding to the unlawful detainer Code of Civil Procedure §1170 allows a tenant to answer or demurrer to the complaint on or before the time needed to respond. Unlike the limitations on when a motion to quash can be set for hearing, there are no similar limitations on setting a hearing on the demurrer. The typical time for setting a hearing on a demurrer is not more than 35 days after the filing of the demurrer or earlier or later as the court may order.

A demurrer is really a "so what" objection. What the demurrer does is admit all of the pleadings for the purposes of the objection. Assuming all of the allegations are true, so what? Landlord, you still haven’t alleged a proper basis for the eviction. Or, the allegations are so confused or ambiguous as to make it impossible to respond to the pleading. In this case, the tenant, if not pushed can delay having to file an answer to the complaint for over a month! For some reason the legislature in its infinite wisdom put a limit of seven days on how far away the tenant can set a hearing on the motion to quash but then allows for a hearing on a demurrer over a month away.

Except for some rare jurisdictions, if the tenant sets a demurrer for a hearing a month away, the landlord’s recourse is to either wait for the thirty days and then after the hearing the tenant gets another five days after the hearing to file their answer. The landlord can alternatively go to the court and ask the court to reset the hearing on a shorter notice. The experience in Fresno is that the courts are willing to set the hearing on a very short notice. It would be better, however, if the legislature formally put a limit on the time of the hearing similar to the time for a motion to quash.

Somewhat similar to a demurrer is a motion to strike a portion of or all of a pleading (CCP§435). The timing for the hearing is that the motion shall be set no earlier than 21 days after filing of the motion, adding another five days if mailed. Thus delaying setting the matter for trial over twenty six days. It should be noted that in the unlawful detainer section of the code, the statutes provide that the tenant can file a motion to quash, a demurrer or file an answer. It does not reference motions to strike

3.   Claims of Right to Possession. It seems that more often than owners would like, strangers are making claims of right to possession, asserting, under oath, that the person had been living in the rental unit at the time the landlord had filed its complaint. And , in most cases the landlord had no idea that there was anyone else in the unit. This surprise "subtenant" matter is all the more complicated if the reason for the eviction is non payment of a notice to pay rent or quit. Code of Civil Procedure §1161.2 requires that when one is serving a tenant for non payment, one must also serve any subtenants in actual possession of the premises. This can present a problem for a landlord. If the "subtenant" person can establish having lived in the premises at the time of the complaint being filed, then the person will assert that they should have been served with the notice to pay rent or quit. However, if the person living in the unit was unauthorized or unknown, the landlord wouldn’t want to serve this unauthorized person with the notice to pay rent or quit in fear of validating the person’s right to possession. It has been held that serving a fired employee with a notice to pay rent, even if the ex employee did not pay the demanded rent, transforms the ex employee’s status as a tenant at sufferance into a month to month tenant.

Whether the claim of right to possession has merit or not, simply filing the claim, the tenant gets another five to seven days delay in the lock out. There needs to be some clarification in the statute to establish that a person living with an authorized tenant cannot be considered a subtenant unless the person can establish that not only did the landlord know of the alleged subtenant but that the person’s sublease had been approved by the landlord before the landlord is required to serve the claimant with the notice to pay.

Most of the delays the tenant or his guests are able to obtain arise from the tenant’s ability to file motions that delay the inevitable. Of course, if the motions have merit, the landlord will have to address those problems separately. This discussion is simply to point out those delays that can be obtained without having to establish merit to the defense to the eviction.

Bill Leifer

William H. Leifer, Esq.
Gilmore Magness Leifer
10 River Park Place East, Suite 240 • Fresno, CA 93720-1534
Phone: (559) 448-9800, ext. 108 • Fax: (559) 448-9899

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