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I am a tenant in San, CA. My landlord verbally agreed and…

I am a tenant in...
I am a tenant in San Jose, CA. My landlord verbally agreed and accepted rent when I assigned my lease to my brother. Now the landlord wants to evict.1. The landlord served an Eviction Notice on 2/25/18, but the Notice failed to list a date to leave. Landlord filed and served the Unlawful Detainer complaint. I filed a demurrer for inadequate Notice which is/was scheduled on 3/28/18. 2. Landlord served a New 3 Day Notice to Quit referencing the original 2/25/18 Notice on 3/8/18.3. The Court filed a Request For Dismissal Without Prejudice on 3/9/18.Questions:1. Can the Landlord serve a New 3 Day Notice WHEN there is already a pending Unlawful Detainer Case?2. Is the New 3-Day notice invalid because it was served prior to the Dismissal of the 1st Unlawful Detainer?3. When he files the New UD case, do I have grounds for a Demurrer or Motion to Strike or ???
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Answered in 20 minutes by:
3/9/2018
Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Landlord-Tenant
Satisfied Customers: 22,734
Experience: B.A.; M.B.A.; J.D.
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Customer reply replied 5 months ago
Ok I will try it again.I have a one year Lease. Are you signed the lease to my brother 3 months into the lease. The landlord verbally agreed to allow this to occur.The landlord sold the property and the new landlord wants to evict me and my brother for wrongful assignment of the lease.On February 5, He served a notice of termination. He then filed an Unlawful Detainer complaint (CASE #*****). I filed a demurrer because there was no specific move-out date stated in the Feb 5 Notice. The demurrer is set for Mar 28.Yesterday, the Landlord served a NEW 3 Day Notice. The Original UD CASE was still active.Today the Landlord filed a Request For Dismissal or CASE #*****Question:
Is the NEW NOTICE legal since it was served prior to the dismissal of the ORIGINAL UD CASE?If there is a procedural error, what is it?
What type of motion do I file when he serves the NEW UD CASE?Thank tiu

Thank you for the information.

I am sorry for the delay in getting back to you. I was offline when your response came in.

Kindly give me a few minutes to review the information that you have provided and prepare my response.

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Your Question:

Is the NEW NOTICE legal since it was served prior to the dismissal of the ORIGINAL UD CASE?

Response: No, so long as a new case will be started. There should be a new UD case started after the expiration of the new three-day notice to quit.

The second three-day notice cannot retroactively make the current UD case valid. The case must be dismissed and a new case started.

If there is a procedural error, what is it?
What type of motion do I file when he serves the NEW UD CASE?

Response 2: There is none. The Landlord has a right to address the deficiencies in the current case, dismiss the case, and then start a new case. The Landlord cannot be prevented from ever filing an unlawful detainer case for the premises because of the mistake made on the first case. So long as the Landlord does not make the same mistake again, the new case would proceed. You can then file an answer and tell the Court why the case must be dismissed because the Landlord consented to the assignment. For more information on eviction process and forms, click here.

Goodluck with your case,

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Customer reply replied 5 months ago
Thank you for the response but I don’t think you answered my question: Since the ORIGINAL UD CASE is still active on 3/8 and not the ORIGINAL UD CASE is not dismissed until 3/9; Is A NEW 3 DAY NOTICE served on 3/8 VALID FOR A NEW SECOND UD CASE?In other words, it appears to me that since there is already one UD case pending, that the landlord must first dismiss that case in court AND THEN SERVE A NEW NOTICE. RIGHT???I understand that the LL has a right to serve a NEW NOTICE AND FILE A NEW CASE, but he should have to wait until the Court dismisses the Original UD Case

Thank you for the information.

Kindly give me a few minutes to review the information that you have provided and prepare my response.

Thank you for your patience.

Kindly note that I am working with multiple customers on the site and I respond to posts in order that they are received. If you have not heard from me it does not mean that I have ignored your post. It just means that I am currently working with another customer.

Thank you for your understanding.

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Thank you for the response but I don’t think you answered my question: Since the ORIGINAL UD CASE is still active on 3/8 and not the ORIGINAL UD CASE is not dismissed until 3/9; Is A NEW 3 DAY NOTICE served on 3/8 VALID FOR A NEW SECOND UD CASE?

Response 1: Yes. I understood the question, the first time around.

In other words, it appears to me that since there is already one UD case pending, that the landlord must first dismiss that case in court AND THEN SERVE A NEW NOTICE. RIGHT???

Response 2: There is nothing in California Code of Civil Procedure that requires this. At least, I have not been able to find one that validates your position.

I understand that the LL has a right to serve a NEW NOTICE AND FILE A NEW CASE, but he should have to wait until the Court dismisses the Original UD Case

Response 3: Kindly cite the Section of California Code of Civil Procedure that requires this. I have not been able to find one.

Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Landlord-Tenant
Satisfied Customers: 22,734
Experience: B.A.; M.B.A.; J.D.
Verified
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