Affirmative Defenses: Complaint

A tenant may also try to raise some affirmative defenses against the complaint itself. Again, this is NOT legal advice. Please seek the advice of a competent attorney if you are trying to evict or are being evicted.

There are basically two defenses: (1) that the complaint was improperly verified; and (2) that the complaint was filed before the notice period expired. I will explain each in turn.

A complaint is verified when the landlord attaches an affidavit to it that swears to the truth of the pleading. But since every document submitted to the court is submitted under penalty of perjury, do not expect this defense to be very effective, if at all.

Second, the complaint could have been filed prematurely. For example, the complaint was served before the three-days from the three-day notice had expired (or thirty days from a thirty-day notice, which i will discuss in a later post).

Now, I will give an example as to why tenants and lawyers ought to have an attorney. The eviction process is fairly complex and a landlord unfamiliar with the law can easily lose an unlawful detainer action; likewise a tenant can easily be evicted if unfamiliar with the law. In California, if the landlord posts and mails the three-day notice (see my previous post), then the tenant has an additional five days to respond under CCP section 1013(a).