Real Estate

Filing a Petition to Vacate an Unlawful Detainer (Eviction) Lawsuit in California

This article will discuss the use of a strike motion in an unlawful detainer (eviction) action in the state of California. This type of motion can be filed when a lawsuit seeks relief or damages that are not supported by the allegations in the lawsuit, or are not verified as required by law.

The strike motion may request that the entire grievance be removed or only certain parts of it. The Court can only consider the issues that appear on the face of the lawsuit. As with an objection, no extrinsic evidence is allowed, other than what may be judicially noticeable.

Section 436 of the Code of Civil Procedure provides in pertinent part that this motion may be filed to vacate any irrelevant matter inserted in any pleading, and to vacate any pleading or part thereof that is not drafted in accordance with the laws of this state.

In the case of an unlawful detainer claim, the code states that it must be verified by the Plaintiff. If the complaint is not verified, the entire complaint must be dismissed because the complaint is not verified as required by section 1166(a)(1) of the Code of Civil Procedure. Therefore, the complaint is not filed under the laws of this state.

Or if the eviction lawsuit asks for rent or other damages, but the three-day notice attached to the lawsuit does not contain a request for rent or other damages, this means the lawsuit is subject to dismissal.

Many eviction complaints seek additional statutory damages for malicious conduct, but do not relieve any facts that support a finding of malice. This is clearly subject to a strike motion as several California appellate courts have ruled.

A UD complaint containing a sentence for statutory damages (up to $600, in addition to actual damages) where the complaint does not allege adequate facts to support a determination of “malice” is improper and therefore subject to a motion of strike.

A California Court of Appeals has ruled that if a claim of right appears in a complaint that is legally invalid, the complaint is subject to dismissal.

Because the statutes governing unlawful detainers have no provision regarding the timing of a hearing on a strike motion, the timing of strike motions is governed by section 1005 of the Code of Civil Procedure, which requires notice 16 judicial days from the hearing on the strike motion, plus five calendar days for notice by mail. Court days means Monday through Friday, excluding court holidays. A defendant who wishes to file a motion to strike must contact the court clerk and obtain a hearing date within 4-5 weeks from the date filed, no later than thirty-five (35) calendar days, or the date earliest available to the clerk of court. .

Be aware that some clerks will try to tell you that you must give the same notice as a motion to vacate, this is not true. The same minimum 16 court days notice that is required for a stay is also required for a motion to strike. See Rutter Group Cal. Landlord-Tenant Practice Guide Chapter 8-C 8:255.5 (2012).

The author sincerely hopes that you have enjoyed this article.


Stan Burman

Copyright 2012 Stan Burman. All rights reserved.