18-UDL-00812 CITY OF REDWOOD CITY VS. WILLIAM MICHAEL FLEMING

CITY OF REDWOOD CITY WILLIAM MICHAEL FLEMING
MICHELLE MARCHETTA KENYON VINCENT J. BARTOLOTTA, JR.

MOTION TO QUASH, OR IN THE ALTERNATIVE AFTER MOTION TO QUASH CONSIDERED AND DETERMINED, TO CONSOLIDATE AND/OR STAY UNLAWFUL DETAINER BY WILLIAM MICHAEL FLEMING TENTATIVE RULING:

The Motion of Defendant William Michael Fleming (“Defendant”) to Quash, or in the alternative after Motion to Quash Considered and Determined to Consolidate and/or Stay Unlawful Detainer Action, is ruled on as follows:

Code of Civil Procedure section 418.10(a) provides for a motion to quash service of summons and complaint on the ground that the court lacks jurisdiction over defendant. Defendant brings this motion to quash, but also raises a ground for demurrer in support of this motion and if the motion to quash is denied, seeks to consolidate and/or stay this lawful detainer action.

First, Defendant cites no authority to support that service of the summons and complaint should be quashed because the branch of the Superior Court is not identified. The motion to quash on this ground is therefore DENIED.

Second, Defendant contends that Plaintiff City of Redwood City does not have the legal capacity to sue, which is one of the statutory grounds for a demurrer. (See C.C.P. sec. 430.10(b).) In raising this ground for demurrer via a motion to quash, Defendant relies on Delta Imports, Inc. v. Mun. Ct. (1983) 146 Cal.App.3d 1033 (“Delta Imports”). Delta Imports held that a tenant in an unlawful detainer action is entitled to quash service of summons where the underlying complaint fails to state a cause of action for unlawful detainer. (Delta Imports, supra, 146 Cal.App.3d at 1034-1035.) In Delta Imports, the complaint failed to include any allegations regarding a written notice to quit, and therefore the court found that the complaint failed to state a cause of action for unlawful detainer such that use of the five-day summons was improper and entitled to be quashed. (Id. at 1035.)

However, Borsuk v. Appellate Division of the Sup. Ct. (2015) 242 Cal.App.4th 607 (“Borsuk”), disagreed with and limited the holding of Delta Imports. In Borsuk, the tenant filed a motion to quash claiming that the court lacked jurisdiction because the landlord failed to properly serve the three-day notice to quit in the manner required by law. (Id. at 610.) The complaint alleged service of three-day notice to pay rent or quit by posting though. (Id.) Borsuk recognized that Delta Imports had created confusion about whether a tenant must challenge a landlord’s failure to comply with the notice requirement for an unlawful detainer complaint by demurrer or by motion to quash. (Id. at 612.) Borsuk found that Delta Import expanded the scope of a motion to quash beyond its purpose. (Id. at 613-614.) Borsuk further held that the Delta Imports holding is limited to the circumstances in Delta Imports, i.e. a motion to quash where the complaint was defective on its face and therefore a five-day summons was improper. (Id. at 616.) Beyond such an issue though, a motion to quash is not the proper way to cannot challenge an unlawful detainer complaint that is valid on its face. (Id.)

After reviewing Delta Imports and Borsuk, the court finds the reasoning and holding in Borsuk to be persuasive. Accordingly, Defendant needs to raise this ground for demurrer in a demurrer, not by a motion to quash.

Moreover, San Mateo Court’s Local Rules provide that a demurrer in an unlawful detainer action may be brought on the law and motion calendar. (See Local Rule 3.15(b).) While a motion to quash may be brought on three to seven days’ notice, a demurrer must be brought on notice pursuant to C.C.P. section 1005(b), which requires sixteen court days’ notice. (Local Rule 3.15(a), (b); C.C.P. sec. 1167.4(a).) In this case, Defendant filed and served his motion on September 12, 2018 for a hearing on September 18, 2018. Such notice is inadequate for a demurrer.

Defendant further seeks in the alternative to consolidate and/or stay this action, but failed to give adequate notice of such a motion.

Accordingly, the motion to quash is DENIED as Defendant fails to raise any basis for quashing service of the summons and complaint. To the extent that Defendant raises arguments for a demurrer and motion to consolidate and/or stay, the motion is DENIED WITHOUT PREJUDICE to raising them on proper notice.

Defendant is to file a demurrer, answer or other responsive pleading by September 24, 2018.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.