I was served with a defective summons for a unlawful detainer. How do I fight this?

Asked almost 2 years ago - Placerville, CA

The summons I received was form sum-100, the correct form is sum-130. How should I fight this? I have received three different opinions from different sources....

i. motion to quash
ii. demurrer
iii. wait until default judgement, then immediately file "motion for order set aside default/vacating default judgement"

please respond,
thanks
Dan

Attorney answers (3)

  1. Frank Wei-Hong Chen

    Contributor Level 20

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    Answered . Filing a motion to quash would be your safest bet.

    Filing a demurrer is only to challenge the sufficiency of the allegations of the complaint. It is not used to challenge jurisdiction, and therefore, would not be appropriate. Generally speaking, a demurrer is not allowed in unlawful detainers in California. Even though California Code of Civil Procedure ยง 1170 indicates that a defendant in an unlawful detainer action may "answer or demur," the courts have held that the "only" acceptable procedure to test whether a complaint states a cause of action supporting a five day summons is a motion to quash. (Delta Imports Inc. v. Municipal Court (1983) 146 Cal. App. 3d 1033, 1035-36; Greener v. Workers' Compensation Appeals Bd. (1993) 6 Cal.4th 1028, 1036.) Moreover, a demurrer only tests the sufficiency of the allegations, not the truth nor can the court consider extrinsic evidence.

    Waiting until a default judgment is extremely risky and ill advised.

    If you have a substantive basis to challenge the unlawful detainer, you would be better off doing so rather than to file a motion to quash.

    Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is... more
  2. David M Blain

    Contributor Level 11

    1

    Lawyer agrees

    Answered . I agree with Mr. Chen.

    Filing the motion to quash is probably your safest bet. Waiting for the default judgment to be entered against you is a bad idea and very risky, especially since you have actual notice of the Unlawful Detainer proceeding against you.

    This response does not create an attorney-client relationship between you and I. I am not your lawyer and I am not... more
  3. M. Todd Miller

    Contributor Level 16

    1

    Lawyer agrees

    Answered . Frankly, all three of those above could help. I would suggest the motion to quash if you would like to address it immediately as it causes the matter to be heard by the court now and not upon execution of a judgment. Anytime you can avoid a judgment, it is wise.

    NOTE: The use of the Internet for communications with the firm or this attorney will not establish an attorney-... more

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