San Diego, CA asked in Landlord - Tenant for California

Q: The ENTIRE Complaint is based on a Lie-w/ ONLY Supporting Document-NOTICE AND ORDER TO VACATE an even Bigger Lie?

I am so far along in My Case that I do not even know if I have the option of filing an Answer or Demurrer, but for Sake of Argument-To me at this point, even if I could file one of the Motions you mentioned it would be Legal Suicide-A Death Sentence for Me and My Case.Filing A Demurrer-Appearing on that Demurrer does two things-it Immediately-without a doubt-gives the Court Jurisdiction and So does filing an Answer.My Attendance at a Demurrer Hearing and even w/ an Absolutely Flawless Presentation on the Demurrer Wins Me One Step Forward-Two Steps Backwards-Case Over.A Demurrer Immediately hands Victory over to the Plaintiff, because A Demurrer ACCEPTS by the Defendant that Everything in the Complaint is True and Correct.My Response-The Truth is that NOT ONE thing in the Complaint is True.Also,EVERYTHING In the ENTIRE 60 Day Notice is a Lie.Appearance at a Demurrer Hearing is a General Appearance that tips the hand of Attorney Jaffe to file an Amended Complaint-Case Closed-Done-Over.

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2 Lawyer Answers
James L. Arrasmith
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  • Landlord Tenant Lawyer
  • Sacramento, CA
  • Licensed in California

A: In this situation, where you believe that the entire complaint and the supporting document (the Notice and Order to Vacate) are based on lies, and you are concerned that filing an answer or demurrer would give the court jurisdiction and potentially harm your case, you may want to consider the following options under California law:

1. Motion to Quash Service of Summons: If you believe that the court lacks personal jurisdiction over you due to improper service of the summons and complaint, you can file a Motion to Quash Service of Summons under California Code of Civil Procedure (CCP) § 418.10. This motion challenges the court's jurisdiction without making a general appearance.

2. Motion to Strike: Under CCP § 435, you can file a Motion to Strike to remove any irrelevant, false, or improper matters from the complaint. This motion can be used to challenge specific allegations without admitting the truth of the entire complaint.

3. Writ of Mandate or Prohibition: If you believe that the court lacks jurisdiction or has exceeded its jurisdiction, you may file a petition for a writ of mandate or prohibition with a higher court (Court of Appeal or Supreme Court) under CCP § 1085 or § 1102. These writs can be used to challenge the lower court's actions or compel the court to perform a duty required by law.

4. Default and Motion to Set Aside: If you choose not to respond to the complaint and the plaintiff obtains a default judgment against you, you may later file a Motion to Set Aside the Default under CCP § 473(b) on the grounds of mistake, inadvertence, surprise, or excusable neglect. However, this option is risky and should only be considered as a last resort.

It is essential to note that these options are complex and may have specific deadlines and requirements. It is highly recommended that you consult with an experienced civil litigation attorney who can review your case's details and provide guidance on the best course of action.

Remember that failing to respond to a lawsuit can result in a default judgment against you, so it is crucial to take prompt action and seek legal advice to protect your rights and interests.

Pardeep Joshi
Pardeep Joshi
  • Landlord Tenant Lawyer
  • Licensed in California

A: A likely viable option would be to file a Motion to quash, if timely filed you would avoid entry of default and you would not be subjected to the Court's personal jurisdiction. Motion to quash challenges not only court's personal jurisdiction over you, it is also appropriate to challenge UD 5-day summons accompanied by Complaint that fails to include minimal allegations necessary to justify such action under CCP 1161. File your Motion to Quash for now, or, you may file your motion to quash simultaneously with a demurrer, answer or a motion to strike without submitting to the Court's personal jurisdiction. As it would not be deemed a general appearance by you until and unless the Court denies the motion to quash, and such order is entered. [even then, if you file a writ of mandate from the denial order the court would still not acquire personal jurisdiction until the writ proceedings have concluded, see CCP section 418.10(e) (1)(2)]. Conversely an answer, motion to strike or demurrer without a Motion to Quash would be deemed a general appearance, thereby you would be waiving issues of lack of personal jurisdiction, inadequacy of process or inadequacy of service of process. [see CCP section 418.10(e)(3)]. Given the time constraints in a UD matter you must act timely, do consult with and/or hire an experienced landlord tenant attorney near you to protect your rights.

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