Motion To Dismiss-Demurrer-Unlawful Detainer
Motion To Dismiss-Demurrer-Unlawful Detainer
Department ____ of the above entitled court, located at Court Address, Defendant, Your
Name, will and hereby does move the Court for an order sustaining a general demurrer to
This demurrer is made pursuant to Cal. Code of Civ. Proc. § 1166(a) and Code
Civ. Proc. § 430.10(e) in that the complaint must be verified, and the complaint as
verified by the attorney on its face is improper and without foundation. Lacking proper
verification, the complaint is fatally defective as it does not state facts sufficient to
This demurrer is based upon this notice of demurrer, the attached demurrer, the
memorandum of points and authorities, and upon such oral and documentary evidence as
on the grounds of improper verification of the complaint. An attorney may not verify a
complaint without providing a proper foundation as to why they, and not the client, are
providing the verification. Simply repeating the language of the statute is not adequate.
Regardless, Code of Civ. Proc. § 1166(a) requires that the complaint “set forth the facts”,
and per Code Civ. Proc. § 446, when verification is made by an attorney on information
or belief, as is the case here, “the pleadings shall not otherwise be considered as an
affidavit or declaration establishing the facts therein alleged”. Therefore, without proper
verification, there are no facts; and without facts, there is no complaint; and with no
complaint, there is no jurisdiction for the court to decide anything but its own
dismissed.
Defendant respectfully requests this honorable Court take mandatory judicial notice per
Cal. Evid. Code §451(a) of Auto Equity Sales Inc. v Superior Court (1962) 57 Cal.2d 450,
establishing the doctrine of stare decisis in all California courts. Under the doctrine of
stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions
may answer or demur. The period for noticing the hearing on a demurrer is not set forth
in the unlawful detainer statutes, §§ 1159 through 1179a. However, § 1177 provides that
all provisions of law contained in Part 2 of the Code of Civil Procedure (the ones
applicable to regular civil actions) are otherwise generally applicable to unlawful detainer
actions, unless other procedures are specified in the unlawful detainer statutes. Since the
unlawful detainer statutes do not provide for the timing of a hearing on a demurrer, the
timing for demurrers is governed by Code of Civ. Proc. § 1005, which requires 16
(sixteen) court days notice of the hearing on the demurrer, plus 5 (five) calendar days for
notice by mailing. Thus, this demurrer is properly before the Court and notice is proper.
The failure of the pleading to state facts sufficient to support a cause of action
results from the fact that the complaint appears deficient on the face of the pleading or
from judicially noticed matter. Hall vs. Chamberlin, (1948) 31 Cal.2d 673, 679-680.
magistrate should sustain the demurrer as to that cause of action. See Cantu v. Resolution
Trust Corp. ( 1992) 4 Cal.App.4th 857, 880. Thus, the Court is authorized to grant this
demurrer.
II.
THE UNLAWFUL DETAINER COMPLAINT IS IMPROPERLY VERIFIED
C 212; Harrington v Superior Court of County of Placer, 194 C 185, 228 P 15) ;
Placer, 194 C 185, 228 P 15) . Jurisdiction cannot be conferred by the mere act
of the parties, by any omission on the part of counsel (Lewis v Superior Court of
San Bernardino County, 21 CA2d 340, 69 P2d 220), or by any decision, either
implied or direct, that a court may itself make (Rogers v Cady, 104 C 288, 38 P
81).
Lack of jurisdiction exists where, though the court has jurisdiction over
without jurisdiction are a nullity and its judgment therein without effect either on
that does not have jurisdiction to hear the cause is void ab initio (Re Application
of Wyatt, 114 CA 557, 300 P 132; Re Cavitt, 47 CA2d 698, 118 P2d 846). Thus,
assumes to act, its proceedings are absolutely void in the fullest sense of the term
(Thaxter v Finn, 178 C 270, 173 P 163; Taliaferro v County of Contra Costas
first question that must be determined by a trial court in any case is that of
113). A court has jurisdiction to determine its own jurisdiction, for a basic issue
in any case before a tribunal is its power to act, and a court must have authority
to decide that question in the first instance (Rescue Army v Municipal Court of
Los Angeles, 28 C2d 460, 171 P2d 8, appeal dismissed 331 US 549, 91 L Ed
1666, 67 S Ct 1409; Schaffer v Justice Court of Chico Judicial Dist. (3d Dist)
185 CA2d 405, 8 Cal Rptr 269; Saidi-Tabatabai v Superior Court of Los Angeles
general jurisdiction, and facts showing that jurisdiction need not be affirmatively
alleged. But in courts of limited and special jurisdiction, such presumption does
not apply, and every fact necessary to jurisdiction must be alleged (Doll v Feller,
16 C 432; Adolph M. Schwartz, Inc. v Burnett Pharmacy, 112 CA Supp 781, 295
P 508).
In all actions and proceedings commenced in a court of limited/special
jurisdiction which are subject to specific provisions of the Civil Code, the
plaintiff must state facts in the complaint verified by his oath or affidavit, or that
of his attorney, showing that the action has been commenced in a proper court
for the trial of such action or proceeding and is subject to the prescribed
any mode thereby prescribed for the acquisition of jurisdiction must be strictly
III.
Reviewing the relevant case law with regards to the instant unlawful detainer
action assists us in piecing together the requirements for jurisdiction. First, courts of
limited/inferior jurisdiction have no inherent judicial power and acquire jurisdiction only
from sufficient pleadings (Doll v. Feller, 16 Cal. 432.). A court has jurisdiction to
determine if it has jurisdiction (Abelleira v District Court of Appeal, 17 C2d 280, 109
P2d 942.). The controlling statute for invoking an unlawful detainer court is Code Civ.
Proc., §1166(a), which reads in pertinent part, “The complaint shall: (1) Be verified...; (2)
Set forth the facts [of the complaint].” Code Civ. Proc. §446(a), concerning verification,
reads in pertinent part, "When the verification is made by the attorney for the reason that
the parties are absent from the county where he or she has his or her office...the pleadings
alleged." (emphasis added) (See also Zavala v. Board of Trustees, 16 Cal. App. 4th
1755.) The provisions of Code Civ. Proc. §446 are to be strictly construed (Silcox v.
Lang, 78 Cal. 118, 122 ). Code Civ. Proc., §446, does not authorize attorney
verifications where the absence of the party creates no inability on his part to verify
(DeCamp v. First Kensington Corp., 83 Cal. App. 3D 268 ). A verification is an affidavit
(Star Motor Imports, Inc. v. Superior Court, 88 Cal. App. 3D 201 ). An affidavit that
simply repeats the language or substance of the statute is insufficient as stating mere
and belief” is hearsay and must be disregarded, and it is “unavailing for any purpose”
whatsoever (Supra Star Motor Imports, Inc. v. Superior Court) . An agent making an
affidavit on behalf of a corporation must set forth under oath their relationship with the
corporation and why they are making it rather than an officer (Maier Packing Co. v Frey,
equals no verification at all, and an unverified complaint does not state facts sufficient to
constitute a cause of action (Star Motor Imports, Inc. v. Superior Court, supra ).
IV.
IT DOES NOT APPEAR THE COURT IN THE INSTANT MATTER HAS
Reviewing the unlawful detainer complaint filed in the instant action (the
“Complaint”) presumably on behalf of the captioned plaintiff, it does not appear the
a. We must employ strict construction with the wisdom of higher courts to guide our
review.
∙ Does not explain why the attorney could not have used the telephone, mail, or
∙ Does not set forth with specificity in the affidavit the reasons why it is not
∙ Does not aver that the facts are within the knowledge of the attorney;
∙ Does not aver that the attorney is an agent of the plaintiff, a corporation;
∙ The pleading, as an affidavit, does not seem to set forth facts because an
affidavit given on “information and belief” is hearsay and does not constitute
facts;
compliance with the requirements of Code Civ. Proc. §1166, and without a sufficient
pleading the unlawful detainer court cannot properly acquire jurisdiction to hear the
matter.
V.
CONCLUSION
The unlawful detainer complaint in the instant action is defective and does not
confer jurisdiction upon this honorable Court. The complaint is not properly verified and
is hearsay, and without a verification the complaint fails to satisfy the requirements of
Code Civ. Proc. §1166(a) to therefore invoke jurisdiction. The honorable Court in this
matter is without subject matter jurisdiction and for that reason the court should sustain
Defendant's demurrer.
be a fraud committed upon the court by Plaintiff's attorney, ATTORNEY NAME (SBN
and encourages the Court on its own motion to sanction ATTORNEY NAME as it finds
appropriate.
PLAINTIFF CORPORATION
PLAINTIFF NAME
STREET ADDRESS
CITY, STATE ZIP
[ ] (By U.S. Mail) I deposited such envelope in the mail at ______________, California
with postage thereon fully prepaid.
[ ] (By Personal Service) I caused such envelope to be delivered by hand via messenger
service to the address above.
[ ] (By Facsimile) I served a true and correct copy by facsimile during regular business
hours to the number(s) listed above. Said transmission was reported complete and
without error.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.