Tenant Filed a Frivolous Demurrer to Delay an Eviction – Help!


Tenants in California will sometimes file a frivolous demurrer to delay an eviction. Unfortunately, there is no way to have the demurrer stricken simply because it is frivolous. The demurrer will still need to be opposed in court. This will involve a written opposition to the demurrer and a court appearance.

One of the main reasons why tenants file demurrers in California unlawful detainer cases, even if it clear that the demurrer is frivolous, is to “buy extra time.” Tenants frequently set the hearing on the demurrer at the courthouse for about a month in the future. This gives the tenant an extra month living at the property while not paying rent to the landlord.

What’s a landlord to do if a tenant files a demurrer in an unlawful detainer? Fight back! A landlord can try to speed up the hearing on the demurrer and have the demurrer decided by the court within a few days rather than a month. The landlord still needs to oppose the demurrer motion, but may be able to substantially cut down on the delay by speeding up the demurrer hearing.

There may also be sanctions per California Civil Code 128.7 against a party who files a frivolous demurrer. When the party or attorney signs the demurrer, he or she is certifying the following:

  • The pleading is not presented primarily for an improper purpose;
  • Allegations and other factual contentions have evidentiary support;
  • Denials of factual contentions have evidentiary support; and
  • Claims, defenses and other contentions are warranted by existing law or by a nonfrivolous argument for extension, modification, or reversal of existing law or establishment of new law.

A violation of these rules may subject the party to sanctions.

Want more information on unlawful detainer demurrers? Read these articles:

The Law Office of David Piotrowski represents landlords throughout southern California and can assist with a tenant eviction.

Read Attorney Piotrowski’s “Landlord Best Practices and Eviction Overview” book.

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