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
iii. wait until default judgement, then immediately file "motion for order set aside default/vacating default judgement"
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 § 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 general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
4 lawyers agree
Personal Injury Lawyer
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 representing you in the underlying issue stated in your question. The response I have offered is not intended to be relied upon, you should seek out an attorney to assist in this matter.
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.
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