18-UDL-00809 CITY OF REDWOOD CITY VS. MARK E. BEHREND

CITY OF REDWOOD CITY MARK E. BEHREND
MICHELLE MARCHETTA KENYON ALISON MADDEN

MOTION TO QUASH TENTATIVE RULING:

Upon review of the moving, opposing and reply papers, Defendant’s Motion to Quash, or in the Alternative, to Stay or Consolidate, 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 asserts that service of the summons and complaint should be quashed because the branch of the Superior Court is not identified. In support, Defendant cites to Code of Civil Procedure sections 392(b) and 396a(a). Neither of these statutes support Defendant’s argument. Furthermore, Defendant’s argument regarding venue is without merit as the Complaint alleges venue is proper in San Mateo because the premises at issue are located here. (See Comp., 9.) 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 Imports 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, a motion to quash is not the proper way to 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 in a demurrer, not by a motion to quash. The motion to quash is therefore DENIED, as Defendant fails to raise any valid ground for quashing service of the summons and complaint.

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).) Any party desiring a hearing date for a demurrer on less than 16 court days’ notice shall be required to obtain an ex parte order shortening time pursuant to CRC 3.1200 to 3.1207. (Local Rule 3.15(b)(2).) In this case, Defendant filed and served the motion on October 17, 2018 for a hearing on October 24, 2018. Such notice is inadequate for a demurrer, and no order shortening time has been granted. Thus, Defendant’s demurrer argument is DENIED WITHOUT PREJUDICE to raising it on proper notice.

Defendant further moves in the alternative to consolidate and/or stay this action. Such motion is DENIED WITHOUT PREJUDICE to bringing such a motion based on notice under C.C.P. section 1005(b), unless an order shortening time is granted.

Defendant is to file a demurrer, answer or other responsive pleading within 15 days after service of written notice of entry of order by Plaintiff.

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.