Butenschoen v. Flaker, 102617 SUPAD, BV 031862

Docket Nº:BV 031862
Opinion Judge:Ricciardulli, J.
Party Name:VAN BUTENSCHOEN, Plaintiff and Respondent, v. CYNTHIA FLAKER et al., Defendants and Appellants.
Attorney:Cynthia Flaker and Chris Flaker, in Propria Persona, for Defendants and Appellants. Brennan Law Firm and Michael Brennan for Plaintiff and Respondent Van Butenschoen.
Judge Panel:We concur: Kumar, Acting P. J., Richardson, J.
Case Date:October 26, 2017
Court:Superior Court of California
 
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VAN BUTENSCHOEN, Plaintiff and Respondent,

v.

CYNTHIA FLAKER et al., Defendants and Appellants.

BV 031862

Superior Court of California, Appellate Division, Los Angeles

October 26, 2017

APPEAL from a judgment of the Superior Court of Los Angeles County, No. 16UR0567 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.

OPINION

Ricciardulli, J.

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...

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