You address the service issue via a Motion to Quash. Presuming your are writing in reference to a residential tenancy, you can also file a Demurrer regarding the incorrect amount of rent allegedly owed. This renders the 3-day notice defective.
Kevin King, Principal- Essential Law Services. HTTP://ESSENTIALAW.COM, 415-562-6862. The information presented here is general in nature and is not intended and should not be construed as legal advice for a particular case. This post does not create any attorney-client relationship with the author of the question answered. For specific advice about your particular situation, consult with me or another qualified attorney off-site.
The best way is to file a motion to quash. You should definitely NOT wait until trial.
You should note that 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.)
A motion for summary judgment is also another possibility. In connection with summary judgment motions in unlawful detainer actions, California Code of Civil Procedure § 1170.7 provides as follows:
"A motion for summary judgment may be made at any time after the answer is filed upon giving five days notice. Summary judgment shall be granted or denied on the same basis as a motion under Section 437c." (emphasis added.)
The five day notice requirement is significantly different from the 75 day notice requirement for summary judgment motions in other civil litigation cases. Code of Civil Procedure § 437(c) authorizes the Court to grant summary judgment when the moving party has established that there is no triable issue of material fact and is entitled to judgment as a matter of law. Specifically, Code of Civil Procedure § 437(c) provides as follows:
"The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
However, the provisions of Code of Civil Procedure § 437c (a) and § 437c (b) concerning the time for making and hearing the motion do not apply to unlawful detainer actions, nor does the requirement of a separate statement supporting or opposing the motion. (See Code of Civil Procedure § 437c (b) and § 437c (r).)
Any opposition to the motion and any reply to an opposition may be made orally at the time of hearing, pursuant to California Rules of Court, Rule 3.1351(b), or in writing pursuant to California Rules of Court, Rule 3.1351(c).
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.
I agree with the attorneys above and would just like to add that your landlord may be allowed to correct his defective service. Which means he would have to reserve the 3-day-notice in accordance to statute; buying you a little while longer at the residence maybe a few weeks at best. Long story short, be prepared to challenge the basis of the summons if you want to continue living at the premises.
-Michael R. Juarez Law Office of Juarez and Schaeffer PO Box 16216 San Diego, CA 92105 (619) 804-4327 www.jslaw.org Mike@jslaw.org This posting is provided for “information purposes” only and should not be relied upon as "legal advice." Nothing transmitted from this posting constitutes the establishment of an attorney-client relationship. Applicability of the legal principles discussed here may differ substantially in individual situations or in different jurisdictions.