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Thread: Landlord misspelled my name in UD summons & complaint; made contradictory allegations

  1. #1
    trosoft is offline Junior Member
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    Landlord misspelled my name in UD summons & complaint; made contradictory allegations

    What is the name of your state (only U.S. law)? CALIFORNIA

    Hi,

    In Los Angeles, my landlord is trying to wrongfully evict me from my apartment. I am wondering if he made fatal errors in the summons and complaint with which he had served upon me. I occupy the premises pursuant to an oral month-to-month rental agreement.


    A. If correct names matter then, I am not the person named in the summons and complaint. The landlord almost invariably misspelled my first name. He erroneously transposed the “e” and the “I” letters. For example (the name herein is fictitious), instead of “Sheila”, he wrote “Shiela. Only once did he spell it correctly; that was in the complaint. Only once did he spell it correctly; that was on the last page of the complaint, in the page-top, heading section for the case title.
    B. In the proof of service for the 3-day notice to quit, the server indicated that service was made on a “Shiela Jones”. (I have not yet seen the proof of service for the summons and complaint.)
    C. The unlawful detainer suit is based upon a 3-Day Notice to Quit. Therein, the landlord’s stated reasons for termination are for nuisance and nonpayment of rent. (These are false contentions.) Curiously enough, in the complaint, the landlord indicates the termination reasons as being for nuisance and non-payment of security deposit. (These are also false allegations.) As a matter of fact, in the complaint, the landlord did not indicate the amount of rent that I agreed to pay; he left that blank. He is not even asking for any past due rent; I don’t owe any.
    D. In two separate items of the complaint, he wrote that I had agreed to rent the premises as a month-to-month tenancy. (It is true that we had agreed to a month-to month tenancy.) But, also in the complaint, he contradicts his own assertions by checking a box for an item which reads, “Plaintiff demands possession from each defendant because of expiration of a fixed-term lease.”
    E. The landlord printed and signed his name in the Verification section of the complaint. However, he did not date that verification. Oddly enough, the landlord also printed and signed his name in the Unlawful Detainer Assistant section of the complaint. He did enter a date in that particular section.

    Questions:

    1. Was the service of the 3-day notice fatally defective, due to misspelling my first name in the proof of service itself?
    2. Was the service of the summons and complaint fatally defective, due to misspellings of my name, within those very documents?
    3. Is the complaint fatally defective where the landlord did not enter a date in the verification section, i.e. where he printed and signed his name?
    4. How should I respond to this complaint? That is, do I need to file an answer or a motion to quash; or, do I wait for a ruling and then file something analogous to a claim of right to possession?
    5. What specific defenses can I raise at trial? Are any of them affirmative defenses?
    6. At trial, how can I persuade the court that it should not rule on the case—as a matter of law—due to defective service or defective summons and/or complaint?
    _____

    N.B.

    Misspellings are as follows:
    1. In the proof of service for the 3-day notice to quit: “I, …, served a 3 Day to Quit on this persons: Shiela Jones”
    2. In the summons: “NOTICE TO DEFENDANT: Shiela Jones
    3. In the complaint:

    a. (On the first page, in the case title section): Defendant: Shiela Jones.

    b. Item #1, “Plaintiff…alleges causes of action against DEFENDANT: Shiela Jones”.

    c. Item #6. “…defendant Shiela Jones agreed to rent the premises as a month-to-month tenancy”

    d. Item # 7. a., “Defendant Shiela Jones was served the following notice on the same date and in the same manner, i.e., 3-day notice to quit.”

    e. Also on two separate pages, similarly misspelled my first name in the page-top, heading section for the case title. However, on the last page of the complaint, my name was correctly spelled, i.e. “Sheila”, in its page-top, heading section for the case title.
  2. #2
    LdiJ is offline Senior Member
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    Quote Originally Posted by trosoft View Post
    What is the name of your state (only U.S. law)? CALIFORNIA

    Hi,

    In Los Angeles, my landlord is trying to wrongfully evict me from my apartment. I am wondering if he made fatal errors in the summons and complaint with which he had served upon me. I occupy the premises pursuant to an oral month-to-month rental agreement.


    A. If correct names matter then, I am not the person named in the summons and complaint. The landlord almost invariably misspelled my first name. He erroneously transposed the “e” and the “I” letters. For example (the name herein is fictitious), instead of “Sheila”, he wrote “Shiela. Only once did he spell it correctly; that was in the complaint. Only once did he spell it correctly; that was on the last page of the complaint, in the page-top, heading section for the case title.
    B. In the proof of service for the 3-day notice to quit, the server indicated that service was made on a “Shiela Jones”. (I have not yet seen the proof of service for the summons and complaint.)
    C. The unlawful detainer suit is based upon a 3-Day Notice to Quit. Therein, the landlord’s stated reasons for termination are for nuisance and nonpayment of rent. (These are false contentions.) Curiously enough, in the complaint, the landlord indicates the termination reasons as being for nuisance and non-payment of security deposit. (These are also false allegations.) As a matter of fact, in the complaint, the landlord did not indicate the amount of rent that I agreed to pay; he left that blank. He is not even asking for any past due rent; I don’t owe any.
    D. In two separate items of the complaint, he wrote that I had agreed to rent the premises as a month-to-month tenancy. (It is true that we had agreed to a month-to month tenancy.) But, also in the complaint, he contradicts his own assertions by checking a box for an item which reads, “Plaintiff demands possession from each defendant because of expiration of a fixed-term lease.”
    E. The landlord printed and signed his name in the Verification section of the complaint. However, he did not date that verification. Oddly enough, the landlord also printed and signed his name in the Unlawful Detainer Assistant section of the complaint. He did enter a date in that particular section.

    Questions:

    1. Was the service of the 3-day notice fatally defective, due to misspelling my first name in the proof of service itself?
    2. Was the service of the summons and complaint fatally defective, due to misspellings of my name, within those very documents?
    3. Is the complaint fatally defective where the landlord did not enter a date in the verification section, i.e. where he printed and signed his name?
    4. How should I respond to this complaint? That is, do I need to file an answer or a motion to quash; or, do I wait for a ruling and then file something analogous to a claim of right to possession?
    5. What specific defenses can I raise at trial? Are any of them affirmative defenses?
    6. At trial, how can I persuade the court that it should not rule on the case—as a matter of law—due to defective service or defective summons and/or complaint?
    _____

    N.B.

    Misspellings are as follows:
    1. In the proof of service for the 3-day notice to quit: “I, …, served a 3 Day to Quit on this persons: Shiela Jones”
    2. In the summons: “NOTICE TO DEFENDANT: Shiela Jones
    3. In the complaint:

    a. (On the first page, in the case title section): Defendant: Shiela Jones.

    b. Item #1, “Plaintiff…alleges causes of action against DEFENDANT: Shiela Jones”.

    c. Item #6. “…defendant Shiela Jones agreed to rent the premises as a month-to-month tenancy”

    d. Item # 7. a., “Defendant Shiela Jones was served the following notice on the same date and in the same manner, i.e., 3-day notice to quit.”

    e. Also on two separate pages, similarly misspelled my first name in the page-top, heading section for the case title. However, on the last page of the complaint, my name was correctly spelled, i.e. “Sheila”, in its page-top, heading section for the case title.
    Generally a misspelling does not invalidate a complaint.

    You do realize that if you are on a month to month tenancy, if he gives you the required notice to move out that you have to do so? He doesn't even have to have a reason.
  3. #3
    Gail in Georgia is offline Senior Member
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    Transposing two letters in a name is not going to get a case tossed out of court.

    You indicate this is a 3-Day Notice to Quit. Do you owe rent? Have there been nuisance complaints on you that the landlord can show as evidence in court?

    Gail
  4. #4
    sandyclaus is offline Senior Member
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    If there are matters of law that make the summons and complaint defective, I believe the proper response would be a demurrer filing. While the misspellings wouldn't make the documents defective, the contradictions and confusion of the LL filling out blanks in areas that are not relevant to the complaint MIGHT be. The law is clear that if the complaint is ambiguous or unclear, that the judge should find in favor of the defendant. Your burden would be to convince a judge in a demurrer hearing that since the LL was so convoluted in how they completed the forms, you can't figure out how to file a proper answer to respond. The result would likely be that the LL would be granted leave to amend the complaint and they would need to file it and re-serve you.

    Note that a 3-day notice to quit for nonpayment MUST NOT include any amounts other than rent. This means that if the LL served you with such a notice based upon nonpayment of a security deposit, the 3-day notice would be considered defective and ineffective. That, however, does not invalidate the issue of nuisance.

    Also note that if you live in the City of Los Angeles, the property may be covered under the LA Rent Control Ordinance, which requires just cause eviction. One cannot just evict someone for no good reason at all. There are specific causes that apply here, and being a nuisance would be one of them.
  5. #5
    tranquility is offline Senior Member
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    Unlawful Detainer actions tend to be very technical because of the brevity of the process and errors can derail the action quickly. Here, I'm uncertain as to if there are fatal errors.

    1. Was the service of the 3-day notice fatally defective, due to misspelling my first name in the proof of service itself?
    2. Was the service of the summons and complaint fatally defective, due to misspellings of my name, within those very documents?
    Almost assuredly not. The key is notice. If the misspelling was Steven rather than Shelia, a person may not have had notice they were who was intended to be served. Sheila Miscoptulitz as opposed to Shiela Miscoptulitz? I believe they call that a scriviner's error.
    3. Is the complaint fatally defective where the landlord did not enter a date in the verification section, i.e. where he printed and signed his name?
    I don't think so. CODE OF CIVIL PROCEDURE SECTION 446 talks of what verification means, not that it requires a date. This may be more of a court rule and not something that makes the verification deficient.
    4. How should I respond to this complaint? That is, do I need to file an answer or a motion to quash; or, do I wait for a ruling and then file something analogous to a claim of right to possession?
    I'd go with something within 5 days. As to the proper response, not only would that be practicing law, but also would require some facts.
    5. What specific defenses can I raise at trial? Are any of them affirmative defenses?
    It depends on the facts. As to the affirmative defenses, one good guide might be found at:
    http://www.courts.ca.gov/documents/ud105.pdf
    6. At trial, how can I persuade the court that it should not rule on the case—as a matter of law—due to defective service or defective summons and/or complaint?
    I don't think you will.

    To my mind, there is a whole 'nother story going on here. Are you living with the LL? Are you paying rent? Did you just move in? What is his complaint?
  6. #6
    trosoft is offline Junior Member
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    Thank you members for your invaluable information, especially...

    Hi,


    I most certainly appreciate the insights and clarifications that your posts have provided.

    As to senior members tranquility and sandyclaus, I truly owe you a sincere debt of gratitude. Moreover, I suspect that the both of you consistently go the extra mile to assist many other people.


    Cheers,

    trosoft
  7. #7
    Searchertwin is offline Senior Member
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    ALL of this over a misspelled name?

    If you were this picky, makes one think how you were as a tenant.
  8. #8
    trosoft is offline Junior Member
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    3-Day Notice versus 3-Day Notice to Pay Rent or Quit?

    Once again, please permit me to clarify a few things, in advance:

    I do not owe any past-due rent.
    The landlord has never served me with a 3-day notice to pay or quit.
    The landlord does not state within the complaint any amount of past-due rent.
    The landlord does not request any past-due rent within the complaint.

    Finally, I have not committed any type of nuisance acts or omissions.

    But, nevertheless, the landlord is basing the UD action on a 3-day notice to quit, wherein he claims violations of nonpayment of rent and nuisance.


    That said...


    Given the following two scenarios:

    1. If a landlord seeks to evict a tenant for nonpayment of rent, landlord must first serve tenant with a 3-day notice to pay rent or quit.
    2. If a landlord seeks to evict a tenant for a non-curable violation of the rental agreement, then landlord serves the tenant with a 3-day notice.

    QUESTION:

    Can the landlord claim both types of violations within a 3-day notice that is the basis for a UD action?


    RELEVANCE:

    I want to convince the Court that it should only rule on the nuisance claim, because the landlord did not satisfy the essential elements to base the suit, in whole or part, on the nonpayment of rent.

    If a landlord pleads a tenant’s nonpayment of past-due rent as a reason for bringing an unlawful detainer action, then the landlord shall have:

    • First served tenant with a proper 3-day notice to pay or quit.
    • Pleaded within the Complaint, that tenant had been served with a valid 3-day notice to pay or quit.
    • Attached such notice to the Complaint.
    • Specified in the Complaint the amount of rent to be paid during each rental period.
    • Specified in the Complaint the frequency of the rental payments.
    • Specified in the Complaint the amount of past-due rent, as of the date of service of the 3-day notice to pay rent or quit.



    I believe these are the relevant code excerpts:


    (“[A tenant of real property, for a term less than life, or the executor or administrator of his or her estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer:] (2) When he or she continues in possession, in person or by subtenant, without the permission of his or her landlord [¶] ... [¶, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, in writing, requiring its payment, stating the amount which is due [¶] ... [¶]shall have been served upon him or her [¶] ... [¶]” [CCP §1161 (2).)

    ---

    “[A tenant of real property, for a term less than life, or the executor or administrator of his or her estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer:] When he or she continues in possession, in person or by subtenant, after a neglect or failure to perform other conditions or covenants of the lease or agreement [¶] ... [¶ than the one for the payment of rent, and three days' notice, in writing, requiring the performance of such conditions or covenants, or the possession of the property, shall have been served upon him or her, [¶] ... [¶. Within three days after the service of the notice, the tenant [¶] ... [¶ may perform the conditions or covenants of the lease or pay the stipulated rent, as the case may be, and thereby save the lease from forfeiture; provided, if the conditions and covenants of the lease, violated by the lessee, cannot afterward be performed, then no notice, as last prescribed herein, need be given to the lessee or his or her subtenant, demanding the performance of the violated conditions or covenants of the lease.” [CCP §1161 (3).)
  9. #9
    trosoft is offline Junior Member
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    In the previous post, I neglected to mention that the landlord did not satisfy any of the bullet-ed conditions essential to pleading nonpayment of rent.
  10. #10
    trosoft is offline Junior Member
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    Above, in the first California Code of Civil Procedure--passage, i.e. relating to CCP Section 1161, I inadvertantly omitted the part. So, I post a more complete code section.

    (It indicates that landlord must serve a 3-day notice to pay rent or quit.

    (“[A tenant of real property, for a term less than life, or the executor or administrator of his or her estate heretofore qualified and now acting or hereafter to be qualified and act, is guilty of unlawful detainer:] (2) When he or she continues in possession, in person or by subtenant, without the permission of his or her landlord [¶] ... [¶, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' notice, in writing, requiring its payment, stating the amount which is due [¶] ... [¶]shall have been served upon him or her and if there is a subtenant in actual occupation of the premises, also upon the subtenant. [¶] ... [¶]” [CCP §1161 (2).)
  11. #11
    Eekamouse is offline Senior Member
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    If none of this is true, why is your landlord doing this? How long have you lived there? Did you pay a security deposit? Do you get along with other tenants or are there problems?
  12. #12
    Gail in Georgia is offline Senior Member
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    "If none of this is true, why is your landlord doing this? How long have you lived there? Did you pay a security deposit? Do you get along with other tenants or are there problems?"

    That is what is so confusing about the OP's posting. If none of these things were true, she should be focusing on those issues. Instead she is focusing on unimportant details such as the incorrect spelling of her first name.

    Gail
  13. #13
    tranquility is offline Senior Member
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    Goodness, I asked a couple of simple questions in my post and the response is.....not. What clarification was made?

    Frankly, the more the OP posts, the less I think they are aggrieved.

    Good luck with your theories. I'd speak with an attorney, you're being sued. I think you will lose when the facts you don't want to relate come out. Procedural "victories" are few and tend to change with little effort.
    TheGeekess likes this.

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