Van Butenschoen v. Flaker

224 Cal. Rptr. 3d 679, 16 Cal. App. Supp. 5th 10, 2017 Cal. App. LEXIS 937
CourtCalifornia Superior Court
DecidedOctober 16, 2017
DocketNo. BV 031862
StatusPublished
Cited by7 cases

This text of 224 Cal. Rptr. 3d 679 (Van Butenschoen v. Flaker) is published on Counsel Stack Legal Research, covering California Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Van Butenschoen v. Flaker, 224 Cal. Rptr. 3d 679, 16 Cal. App. Supp. 5th 10, 2017 Cal. App. LEXIS 937 (Cal. Super. Ct. 2017).

Opinion

Ricciardulli, J.

*12INTRODUCTION

In response to an unlawful detainer complaint, a defendant may, as was done in this case, file a motion to quash service of the summons. ( Code Civ. Proc., §§ 418.10, 1167.4.) If, in denying the motion to quash, the trial court also orders the defendant to "only" file an answer to the complaint, the trial court effectively deprives that defendant of his or her right to file a demurrer ( Code Civ. Proc., § 422.10 ). Such was the case here. After defendants Cynthia Flaker and Chris Flaker were sued in unlawful detainer, they filed a motion to quash. The court denied the motion and, in so doing, it specified *13that defendants were permitted to "answer" within five days. Defendants responded to the order by timely filing a demurrer. Presumably because no answer was filed, default judgment was entered against them, and they now appeal. We reverse the judgment because, in denying a motion to quash an unlawful detainer summons, the trial court may not restrict a defendant's responsive pleading to an answer.

BACKGROUND

Plaintiff and respondent Van Butenschoen filed his action on March 1, 2016, alleging defendants failed to comply with a three-day notice to pay rent or quit. Plaintiff requested possession of the residential property, forfeiture of the rental agreement, court costs, and damages.

On March 8, 2016, defendants filed a motion to quash based on improper service of the summons and complaint. Plaintiff filed an opposition, arguing defendant Chris Flaker was personally served with the documents and defendant Cynthia Flaker was served through substituted service.

On March 14, 2016, the trial court denied the motion to quash. The court's order stated, "Motion is denied. [¶] Defendant has 5 days to answer." A clerk's certificate of mailing indicated that on March 14, 2016, a copy of the minute order was mailed to defendants. On March 18, 2016, plaintiff served defendants with a notice of the ruling which stated, "1. Defendant's motion is denied; [¶] 2. Defendant has five (5) days to file and serve an answer only."

On March 24, 2016, defendants filed a petition for a writ of mandate challenging the trial court's order. This court denied the petition and on April 1, 2016, mailed defendants a copy of the minute order denying the petition.

On April 18, 2016, defendants filed a demurrer to the complaint. Nonetheless, on April 18, 2016, the clerk entered a default judgment against defendants. Defendants subsequently filed a notice of appeal from the judgment.

DISCUSSION

Because the determination of the issues rests upon the construction of statutes, the issues are questions of law which we review de novo. ( Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1119, 158 Cal.Rptr.3d 21, 302 P.3d 211.) An "appeal from [a] default judgment presents for review only the questions of jurisdiction and the sufficiency of the pleadings. [Citations.]" ( Corona v. Lundigan (1984) 158 Cal.App.3d 764, 766-767, 204 Cal.Rptr. 846.) A prematurely entered default judgment is null and void.

*14Whealton v. Whealton (1967) 67 Cal.2d 656, 659, 63 Cal.Rptr. 291, 432 P.2d 979 ; Baird v. Smith (1932) 216 Cal. 408, 410, 14 P.2d 749.)

Statutory Scheme

The summons in an unlawful detainer complaint calls for a response in five days ( Code Civ. Proc., § 1167 ), as opposed to the usual 30 days provided for in other civil cases ( Code Civ. Proc., § 412.20 ). Code of Civil Procedure section 1167 provides, in relevant part, "The summons shall be in the form specified in [Code of Civil Procedure s]ection 412.20 except that when the defendant is served, the defendant's response shall be filed within five days, including Saturdays and Sundays but excluding all other judicial holidays, after the complaint is served upon him or her." Code of Civil Procedure section 412.20, subdivision (a)(3), similarly calls for the *681filing of "a written pleading in response to the complaint."

A permissible "response" to a complaint is not limited to an answer. Code of Civil Procedure section 422.10 unambiguously defines what pleadings are allowed in civil actions; they include answers and demurrers . ( Code Civ. Proc., § 422.10 ["The pleadings allowed in civil actions are complaints, demurrers, answers, and cross-complaints"].) Code of Civil Procedure section 1170 allows a defendant appearing in an unlawful detainer action to either "answer or demur." The Court of Appeal in Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 617, footnote 7, 195 Cal.Rptr.3d 581, made this point clear, indicating "[a] tenant may attack the legal sufficiency of an unlawful detainer complaint by demurrer or motion to strike, 'depending on the defect attacked.' [Citation.]"

Once a defendant files a motion to quash, a default judgment cannot be entered until after expiration of the defendant's time to demur or answer a complaint. ( Code Civ. Proc., §§ 418.10, subd. (d), 585.) Code of Civil Procedure section 586, subdivision (a)(2), provides, "[J]udgment shall be rendered ... , as if the defendant had failed to answer: [¶] ... [¶] ... if the demurrer is overruled ... , and the defendant fails to answer the complaint within the time allowed by the court."

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Cite This Page — Counsel Stack

Bluebook (online)
224 Cal. Rptr. 3d 679, 16 Cal. App. Supp. 5th 10, 2017 Cal. App. LEXIS 937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-butenschoen-v-flaker-calsuperct-2017.