Delta Imports, Inc. v. Municipal Court

Opinion

JOHNSON, J.

This appeal raises the issue of whether a tenant in an unlawful detainer action is entitled to quash service of summons where the

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underlying complaint fails to state a cause of action for unlawful detainer. Under the circumstances of this case, we hold in the affirmative and direct the superior court to issue a peremptory writ of mandate ordering the municipal court to quash the summons.

I. Facts and Proceedings Below

George L. Missimer, dba G & G Properties, (hereinafter landlord) brought an action for unlawful detainer against his tenants, Delta Imports, Inc. and Diana Lu (Delta Imports). The complaint alleged four breaches of the lease agreement: (1) failing to provide proof of insurance for bodily injury and property damage; (2) placing a sign on the premises without landlord’s permission; (3) installing clothing racks without the landlord’s permission; (4) failing to pay the rent on time.

Delta Imports filed a motion in the respondent municipal court for an order quashing service of the summons. The motion was based on Delta’s contention that the complaint failed to state a cause of action for unlawful detainer and, therefore, could not support the issuance of a summons with a five-day response time. (See Code Civ. Proc., § 1167.)

The municipal court denied the motion to quash service. Delta then petitioned the superior court for a writ of mandate compelling the lower court to grant the motion. The superior court issued an alternative writ and, after a hearing, entered judgment denying the petition. Delta appealed to this court from that judgment.

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II. Under the Circumstances of This Case, a Motion to Quash Service Was the Proper Procedure.

A motion to quash service is the proper method for determining whether the court has acquired personal jurisdiction over the defendant through service of the five-day unlawful detainer summons.