§6.02 Motion to Quash Service and Set Aside Default Judgment

The defendant in a UD action may challenge service of the summons by filing a motion to quash within the 5 days allowed for filing a responsive pleading. [See CCP §418.10(a)(1).] The notice of motion must designate a date for the hearing not less than 3 days and not more than 7 days after the notice is filed. [CCP §1167.4(a).]

If a default was entered, a motion to quash service may be combined with a motion to set aside the default. A defendant may also bring a separate motion to set aside a default on the ground of a mistake, inadvertence, surprise, or excusable neglect. [See CCP §473(b).] The proposed answer must be filed with the motion to set aside. [CCP §473(b); see Puryear v Stanley (1985) 172 Cal.App.3d 291, 293­–295; but see Job v Farrington (1989) 209 CA3d 338, 340–341 (substantial compliance if filed before hearing).]

A motion to quash may be used instead of a demurrer to test whether the complaint states a cause of action for unlawful detainer. [Smith v Municipal Court (1988) 202 CA3d 685, 688.] Service of a 5-day summons on a complaint that fails to state a cause of action for unlawful detainer is defective and does not give the court jurisdiction over the defendant; it is therefore subject to a motion to quash. [Greene v Municipal Court (1975) 51 CA3d 446, 451–452.]

If you deny a motion to quash, the defendant has 5 days from the time your notice of ruling is served in which to file a pleading. For good cause you may extend this time for an additional period not exceeding 15 days. [CCP §1167.4(b).] The defendant is afforded additional time to plead if he or she gives both the court and the plaintiff notice, on the last day to plead, that he or she is challenging your ruling by way of a petition for writ of mandate. [See CCP §418.10(c).] In that case, the defendant has 10 days to plead after service on him or her of a written notice of the final judgment in the mandate proceeding. [See CCP §418.10(c).] No default may be entered against the defendant during the pendency of a petition for writ of mandate or a motion to quash. [CCP §418.10(d).]

Click