Van Butenschoen v. Flaker

Filed 10/16/17

CERTIFIED FOR PUBLICATION APPELLATE DIVISION OF THE SUPERIOR COURT STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

VAN BUTENSCHOEN, ) No. BV 031862 ) Plaintiff and Respondent, ) Pomona Trial Court ) v. ) No. 16UR0567 ) CYNTHIA FLAKER et al., ) ) Defendants and Appellants. ) OPINION )

APPEAL from a judgment of the Superior Court of Los Angeles County, Dan Thomas Oki, Judge. Reversed. Cynthia Flaker and Chris Flaker, in Propria Persona, for Defendants and Appellants. Brennan Law Firm and Michael Brennan for Plaintiff and Respondent Van Butenschoen. * * *

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INTRODUCTION 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 that 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.”

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