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Lesson 6:
Pretrial Through Postrial Procedures

 

 

§6.02 Motion to Quash Service or Stay Action

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 defendant may also file a motion to stay or dismiss the action on the ground of inconvenient forum. [CCP §418.10(a)(2).] 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); CRC 3.1327(a).] The CCP §1013 extensions for mailing apply. [CRC 3.1327(a).]

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.]

Default entered. 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 or other pleading must accompany 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).]

Opposition. Any opposition to the motion to quash or to stay or dismiss, and any reply to an opposition, may be made orally at the time of hearing. [CRC 3.1327(b).] Alternatively, if a party seeks to have you consider a written opposition in advance of the hearing, the written opposition must be filed and served on or before the court day before the hearing. Service must be by personal delivery, facsimile transmission, express mail, or other means, and reasonably calculated to ensure delivery to the other parties no later than the close of business on the court day before the hearing. You have the discretion to consider written opposition filed later. [CRC 3.1327(c).]

Motion denied. 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).]

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