Amended Unlawful Detainer Complaint Cannot Allege a Post-Filing Three-Day Notice
Unlawful detainer law is filled with pitfalls for the unwary. For example, if the landlord realizes after the unlawful detainer complaint has been filed that its three day notice is invalid, can it simply serve a new three day notice, then amend its complaint?
In California, the answer is that the landlord must dismiss the unlawful detainer case and file a new case.
“A cause of action for unlawful detainer does not arise until the three days required for proper notice have expired without the tenant having paid the rent during that time.” Lamanna v. Vognar (1993) 17 Cal.App. 4th Supp. 4, 6, 22 Cal.Rptr. 2d 501, 502 (citing Downing v. Cutting Packing Co. (1920) 183 Cal. 91, 95-96; finding that unlawful detainer complaint was invalid based on early filing due to failure to account for legal holiday).
The remedy as Rutter explains is that: “A prematurely filed UD complaint is a noncurable defect, requiring filing of a new lawsuit, and thus could also be raised by a preanswer CCP § 430.10(e) demurrer . . . .” Cal. Prac. Guide Landlord-Tenant Ch. 8-D, 8:344.
Rutter cites Lamanna as follows: “Unlawful detainer filed prematurely: Although properly served, a statutory notice to terminate does not ‘ripen’ into an unlawful detainer action unless and until the statutory notice period (three or 30/60 days) has fully run (without a cure, if applicable). A UD filed before then is premature and will be dismissed on proper motion or defense.” Cal. Prac. Guide Landlord-Tenant Ch. 8-D, 8:343.
This means that: “When a demurrer is granted for a defect in required notice to terminate, the complaint cannot be cured by amendment. Instead, the landlord must file a new complaint, after giving the tenant new notice. . . . This simply applies the general rule that a demurrer should be sustained without leave to amend ‘where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.'” Cal. Prac. Guide Landlord-Tenant Ch. 8-C, 8:238 (quoting Lawrence v. Bank of America (1985) 163 Cal.App. 3d 431, 436).
Generally, a plaintiff “may be allowed, on motion, to make a supplemental complaint . . . alleging facts material to the case occurring after the former complaint.” (Code Civ. Proc. § 464.) “Matters which occur after the filing of a complaint may not be alleged by amendment to the complaint, but must be brought into the action by means of a supplemental complaint.” Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 414, 426.
However, there is no reason to file a motion for leave to file a supplemental complaint because “a supplemental complaint cannot aid an original complaint which was filed before a cause of action had arisen.” Radar v. Rogers (1957) 49 Cal. 2d 243, 247–48. In other words, “a supplemental complaint may not be filed where the cause of action is not complete when the suit is commenced.” Grant v. Sun Indem. Co. of New York (1938) 11 Cal.2d 438, 440.
Tenants have rights, including the right to a three day notice that proceeds the filing of a lawsuit. Landlords and tenants should be aware of their rights. Hiring proper counsel is the first step to ensuring the desired result.
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