I am currently in unlawful detainer proceedings with my landlord. I am the defendant. I have lived in the building for three years and sudde...

Question

I am currently in unlawful detainer proceedings with my landlord. I am the defendant. I have lived in the building for three years and suddenly the internet stopped working a month ago. The Internet people have said its the building's fault. I plan to sue the building in small claims court because I believe they are deliberately tempering with the internet to get me to move out. They are also tempering with the plumbing as well. What I want to find out is this. In civil code 430.10 (c) it states I can demur if (c) There is another action pending between the same parties on the same cause of action.

Now, what does "the same cause of action" mean. If I start suing them for damages in small claims court will I be able to demur to the unlawful detainer complaint and have it "stayed" while the other suit is pending in small claims court. I guess my question is whether my own suit against them will classify as "the same cause of action." since I will be the one suing them this time around. It will be under the same unlawful detainer but now I will be the plaintiff so I dont know if this will classify as that. Can someone be kind enough to answer this and please explain what "the same cause of action" means. Thanks.

Answer

The short answer is "no." There is a lot of law about what constitutes the same cause of action, mostly in cases involving an amended complaint after a statute of limitations may have run. But in your case there's no need to go into all that, because it can never be the same cause of action when each person is the plaintiff on one claim and the defendant on the other.

Answer

It's not the same cause of action.

Unlawful detainer proceedings are summary proceedings designed to restore possession of the premises to the landlord when there has been a violation of the lease or nonpayment of rent. Only claims bearing directly on the right of immediate possession are recognized. Cross-complaints and affirmative defenses are only permissible only if they would be successful in precluding removal of the tenant from the premises.

The same cause of action really has to do with what is known at the primary rights theory. It is too lengthy to discuss here, but what it really boils down to is the same transaction or occurrence. To understand, your demurrer would be applicable in the following situation. Fred is driving and gets into an accident with Barney, who is driving Barney's car. Fred sues Barney for damages. Instead of filing a cross-complaint, Barney sues Fred in a different court for damages. Instead of answering, Fred can demurrer to Barney's cause of action, on the ground that there is already another action pending between the parties.

Demurrers are not allowed in small claims court. If the unlawful detainer was already filed, and you file a small claims action, the judge in the small claims case is not going to stay the unlawful detainer, and the unlawful detainer court is going to overrule any demurrer you file there, because your small claims case was filed later, and was not already pending.

The good news is that unlawful detainer actions have limited res judicata effect. This means you can file a separate action against the landlord for engaging in self help measures to try to evict you.