Unlawful Detainer - Tenants answered with a technicality on the Summons

[CalRehabber]

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

Hi All,

First I want to thank everyone in this place for the great help Ive received in the past.

I'm a Landlord in California doing an Unlawful Detainer on some tenants that have not been paying rent.

Served 3 day notice. filed the correct forms at the Courthouse, then served the tenants with the Summons and Complaint.

On the Complaint Line 7A, I checked the box where it says "A copy of the 3 day notice is attached and labeled exhibit 2" but I forgot to attached it.
The Tenants of course got free legal help and I received a "Request for Demurer" in the mail stating that the attachment wasn't there.

I think my next course of action would be to File an amended corrected Complaint? Does this sound correct?

Appreciate any help as these tenants are starting to suck me dry and I can barely make the mortgage and Insurance payments now..

---Mike

 

[tranquility]

While there may be some technical avenues to escape mistake, the only realistic way is to start over. UD is a technical area and any errors usually disrail the attempt.

 

[Willlyjo]

While there may be some technical avenues to escape mistake, the only realistic way is to start over. UD is a technical area and any errors usually disrail the attempt.

I disagree. I believe the OP is right to file an amended Complaint attaching the exhibit that they forgot to attach in the first place. Of course this should happen before the Demurrer hearing or, the Op could probably even serve the attachment on the Defendant and file a copy with the Court which could probably result in the dismissal of the Demurrer.

 

[Zigner]

I disagree. I believe the OP is right to file an amended Complaint attaching the exhibit that they forgot to attach in the first place. Of course this should happen before the Demurrer hearing or, the Op could probably even serve the attachment on the Defendant and file a copy with the Court which could probably result in the dismissal of the Demurrer.

Willy, as usual, you are wrong.



I don't mind warning folks about your reputation for misleading and downright inaccurate posts. It's like what-a-mole, but the moles all look like Willy.

 

[Willlyjo]

Willy, as usual, you are wrong.



I don't mind warning folks about your reputation for misleading and downright inaccurate posts. It's like what-a-mole, but the moles all look like Willy.

You certainly don't have the expertise or experience to tell me I'm wrong here. So how about you finding any documentation that says one cannot effectively render a Demurrer moot by filing an Amended Complaint. Or...find documentation that one cannot serve an exhibit in oppostion to the Demurrer on the Defendant and file a copy in Court to show proof that a 3-day 'pay or quit' notice was given to the Defendant. Can't do it? I thought so.

 

[tranquility]

I disagree. I believe the OP is right to file an amended Complaint attaching the exhibit that they forgot to attach in the first place. Of course this should happen before the Demurrer hearing or, the Op could probably even serve the attachment on the Defendant and file a copy with the Court which could probably result in the dismissal of the Demurrer.

You are correct in that he has a right to amend before an answer or before the demurrer hearing. He has to ask leave of the court after one amendment or after the hearing. (Which is liberally given.) But, if there is a material change, he has to re-serve. Also, with the amendment, the defendant has five days to do a responsive pleading.

The OP has the right to do as he asks, I just don't think it a good idea.

 

[Willlyjo]

You are correct in that he has a right to amend before an answer or before the demurrer hearing. He has to ask leave of the court after one amendment or after the hearing. (Which is liberally given.) But, if there is a material change, he has to re-serve. Also, with the amendment, the defendant has five days to do a responsive pleading.

The OP has the right to do as he asks, I just don't think it a good idea.

Thanks for the response Tran. As usual, I totally respect your opinions.

 

[CalRehabber]

You are correct in that he has a right to amend before an answer or before the demurrer hearing. He has to ask leave of the court after one amendment or after the hearing. (Which is liberally given.) .

Hi Tran or whoever else may know, what is meant by "ask leave of the court after one amendment or after the hearing" ?

Thank you very much..OP

 

[tranquility]

It means you don't have a right to amend, you have to ask the court for permission.

 

[CalRehabber]

Well this UD gave me a big surprise as I went to he courthouse to file the amended complaint and the clerk told me she couldn't do it because my file was checked out by the courtroom and I had a hearing in 10 minutes for the Demur. I asked her to double check again because the paper I was looking at had the hearing date set for the 29th, not the 9th. The only thing I can think of was that the tenant somehow changed the date on the copy that was mailed to me thinking I wouldn't show up. It was a pure stroke of luck that I was just there to file and the hearing was about to happen.

I walk into the courtroom and the look on the tenants face was as if he saw a ghost. We go up in front of the judge and he almost instantly throws it out, saying " This isnt right" no other explanation but I think he also saw on the Demur he was lying about never even getting served a 3 day notice but my Proof of Service was already filed and by a reputable processing company.

So I think my next step now is to file a Request to enter default..

 

[tranquility]

Threw out the case or the demurrer? If the demurer, he has some number of days to answer after the hearing.

 

[CalRehabber]

Threw out the case or the demurrer? If the demurer, he has some number of days to answer after the hearing.

Sorry, he Dismissed the Demurer..

How many days?

 

[sandyclaus]

Sorry, he Dismissed the Demurer..

How many days?

Usually 5 court days. Or, if they mailed you a notice of the decision, then 10 days from the date that the notice was mailed.