1. 1Dear [FIRSTNAME],The topic of this issue of the newsletter is a brief discussion of filing an answer to an unlawfuldetainer (eviction or UD) complaint in California. Specific affirmative defenses will not beoutlined in this issue but will be discussed in more detail in a later newsletter issue.Once a tenant has been properly served with the summons and complaint they generally havefive (5) calendar days to file their answer with the Court and serve a copy on the plaintiff or theirattorney.Failure to file and serve an answer on time will result in a default being entered against thedefendant or defendants. The landlord can then obtain a judgment for possession of the premisesvery quickly, usually within a few days at most. Therefore, it is vital for a tenant served with anunlawful detainer summons and complaint to answer or otherwise respond within the very shorttime allowed.In general, the tenants response is due within five (5) calendar days after service of the unlawfuldetainer summons and complaint. The five-day period includes Saturdays and Sundays butexcludes other court holidays; however, if the fifth day falls on a Saturday or Sunday, theresponse deadline is extended to the next court day. However, if the summons and complaint wasnot personally served, but instead was served by substituted service, meaning a copy was givento someone else residing at the premises, and another copy was mailed to the tenant, or an orderto post and mail known as “nail and mail” was issued by the Court, than the response time isextended to fifteen (15) calendar days, again if the last day to answer falls on a Saturday orSunday, or a court holiday, the deadline is extended to the next court day.Thus, an answer to the unlawful detainer complaint must be filed within this five-day periodunless, before expiration of the five days, the tenant has filed some other authorized responsivepleading that temporarily excuses the duty to answer such as a motion to quash, demurrer,motion to strike, etc.The filing of a motion to quash, demurrer, motion to strike or other authorized preanswerresponsive pleading extends defendants time to answer the complaint. But the preanswerpleading must itself have been filed within the five-day answer period, unless defendants haveobtained a stipulated or court-granted extension of time to answer the complaint.Where "good cause" is shown such as time needed to obtain filing fees, etc, the court may grantdefendant an extension of time to respond.Like any preanswer response, application for an extension of time to plead must itself be madewithin the five-day answer period. As soon as the five days are up, plaintiff is entitled to obtain adefault entry beating out defendants subsequently filed application for extension of time. Anyextension of time that was granted after the time to answer had expired may be ignored and adefault entered. See Start v. Heinzerling (1915) 27 Cal.App.145, 148.An application for an extension of time may be made ex parte; a formal noticed motion is not
2. required as the narrow five-day window period does not allow time for a noticed motion undernormal procedures.But some form of informal notice must be given to plaintiff; and defendants written applicationmust advise the court of the nature of the case and what extensions, if any, have previously beengranted, whether by court order or the stipulation of the parties.Normally, a party seeking an ex parte order in a civil case must notify all parties no later than10:00 a.m. the court day before the ex parte appearance (absent a showing of exceptionalcircumstances justifying shorter notice). In unlawful detainer proceedings, however, an ex parteapplicant may give shorter notice "provided that the notice given is reasonable." See CaliforniaRule of Court 3.1203.The ex parte application must be accompanied by a declaration stating either (I) that notice wasgiven, including the date, time, manner and name of the party informed, the relief sought,whether opposition is expected and that the applicant informed the opposing party where andwhen the application would be made; or (ii) that a good faith attempt to inform the opposingparty was made but the applicant was unable to do so, (specifying efforts made); or (iii) whynotice should not be required.If the notice in a UD proceeding was provided later than 10:00 a.m. the court date before the exparte appearance, the declaration must state why the notice given was reasonable. See CaliforniaRule of Court 3.1204[c].The maximum extension granted is usually 10 calendar days unless plaintiff consents to a longertime or the court otherwise orders for "good cause" shown.The parties may stipulate to an extension of time for any reason; but a court-ordered extensionwill lie only for "good cause" shown. Since eviction actions are supposed to be "summary"(speedy) proceedings, courts tend to be quite restrictive in granting extensions of time. A first-round extension is likely to be granted meaning "good cause" was found)only on allegation thatno prior extensions have been granted by either the court or by stipulation of the parties and that(a) defendant needs more time to locate an attorney to represent him or her or to acquire therequisite filing fees, or (b) a consulted attorney needs more time to evaluate the case to determinewhether to accept representation of defendant.Any further extensions of time are uniformly disfavored in UD proceedings.Defendants answer must be verified just as the UD complaint must be verified.Note that while all answering defendants must sign the answer, only one answering defendantneeds to verify the answer. An unverified answer is subject to a motion to strike in its entirety;but the motion must be made within 10 days after service of the answer.The function of the answer is to put the case "at issue" as to all material allegations in thecomplaint. Therefore, as with any answer to a civil complaint, the unlawful detainer answer
3. should set forth whatever denials and/or affirmative defenses are necessary to controvert thelandlords material allegations.All material allegations of the complaint that a defendant does not intend to admit must beeffectively denied. If they are not denied then they are automatically deemed to be admitted.Defendant should respond specifically to each and every paragraph in the unlawful detainercomplaint by admitting, denying, admitting portions and denying portions, or denying on thebasis of lack of information or belief upon which to admit or deny.As with general civil litigation, defendants answer should allege applicable affirmative defensesthat are not put in issue under a simple denial commonly referred to as "new matter." As ageneral rule, whatever the defendant tenant bears the burden of proving at trial is "new matter"and thus is in issue only if specifically pleaded in the answer.It needs to be stressed that allowable affirmative defenses are very limited. Only "issues directlyrelevant to the ultimate question of possession" and which, if established, would result in thetenants right to retain possession, may be asserted in defense to an unlawful detainer. See Barelav. Super.Ct. (Valdez) (1981) 30 Cal.3d 244, 249.The defendant (tenant) bears the burden of pleading all essential elements of the affirmativedefense (or defenses) raised which means that the defenses pleaded must be supported by factualallegations. However, this simply requires "meaningful notice" to the landlord of the scope andextent of the proffered defense, no detailed evidentiary facts are required.If you enjoy this newsletter, tell others about it. They can subscribe by visiting the followinglink: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being asubscriber.Yours Truly,Stan BurmanThe author of this newsletter, Stan Burman, is a freelance paralegal who has worked inCalifornia litigation since 1995.The authors website:http://www.legaldocspro.netView numerous sample documents sold by the author:http://www.scribd.com/legaldocsproReply to this e-mail for more information on a package that contains over 100 sample documentscurrently selling for only $299.99. That is around $3.00 per sample document!
4. Copyright 2012 Stan Burman. All rights reserved.DISCLAIMER:Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such isunable to provide any specific legal advice. The author is NOT engaged in providing any legal,financial, or other professional services, and any information contained in this newsletter is NOTintended to constitute legal advice.These materials and information contained in this newsletter have been prepared by Stan Burmanfor informational purposes only and are not legal advice. Transmission of the informationcontained in this newsletter is not intended to create, and receipt does not constitute, anybusiness relationship between the sender and receiver. Subscribers and any other readers shouldnot act upon this information without seeking professional counsel.