Saturday, November 28, 2015

Demurrer By A Motion To Quash Is No More--Delta Motion Is Held Wrong Practice

For many years, there was a peculiar decision in Delta Imps. v. Mun. Ct. (1983) 146 Cal.App.3d 1033, holding that the only way a complaint in unlawful detainer can be challenged on legal grounds was for a tenant to bring a motion to quash, not a demurrer. Many voiced their disagreement with this case during its 32-year legacy, and it seems that the last nail has arrived this week, the decision in Borsuk v. App. Div. of the Sup. Ct(2015) 242 Cal. App. 4th 607.

We saw it coming. Not everyone was happy with the Delta Imports. One of the well known cases raising concerns was Parsons v. Sup. Ct. (2007) 149 Cal.App.4th Supp. 1, 7, (the court still upheld Delta). Manuals on landlord-tenant law were often calling the Delta Motion a confusing rule.

There were basically three areas not clear in this practice: (1) what can be challenged by the Delta Motion, the complaint, its notice, the service of the notice, or any of the above; (2) whether a challenge by the Delta Motion can include an argument on the facts (since in an ordinary motion to quash, the court is allowed to consider evidence), or be limited to a legal argument with the facts treated as true, just like a demurrer; and (3) whether the timing conflict between the narrow window of moving to quash [CCP 1167.4] can co-exist with the extension of time under CCP 1013.

The problem with the first point and the scope of what can be challenged on such motion to quash is well exhibited in Borsuk case decision. It demonstrates the difference between obtaining personal jurisdiction (and what is expected to be challenged by a motion to quash), and an element of the cause of action for unlawful detainer (something to be attacked by a demurrer).

And complications with second issue, to ask the court to have a mini-trial on submitted evidence at the motion's level, were hinted at in Parsons, and fully illustrated in the case, which preceded November decision in Borsuk--Borsuk's decision at the Superior Court's Appellate Division: Borsuk v. Sup. Ct(Cal. Super. Ct. 2015) 238 Cal.App.4th Supp. 1, 9-10, also see there footnote 4.  Earlier cases were already hinting at preference to treat a motion to quash in analogy to demurrer and accept pleaded facts as true. Garber v. Levit (2006) 141 Cal.App.4th Supp. 1, 6.

With regard to the timing conflict, Cal. Rules of Ct., Rule 3.1327(a) requires compliance with both CCP 1167.4 and 1013. This technically eliminates a possibility of serving a notice of motion to quash by regular mail, because such service would at a minimum add 5 days to the time before hearing, yanking out the earliest possible day to calendar outside of the allowed window.  Because of that overlap, CCP 1167.4 is called "a tricky statute that is easy to mess up."  29-333 California Forms of Pleading and Practice--Annotated § 333.20. Borsuk decision helps with this problem indirectly--if there will be no need to move to quash, practitioners won't be encountering this procedural quirk too often.

It's great that the case made its way to the state appellate court. As much as the Appellate Division of the Superior Court was not happy with the Delta Motion in Borsuk case, finding it "run[ing] contrary to the legislative intent to promptly bring unlawful detainer actions to fruition" and creating "procedural conundrums," the court there stopped short at ruling against it in July. This is done now with the appellate decision in November. Let's hope the case gets into the books. For now, I only have its appellate case number (B265613) and Lexis's citation: 2015 Cal. App. LEXIS 1047.

[Update October 2017] in Butenschoen v. Flaker (2017) 16 Cal.App.5th Supp. 10, 15, the court further clarifies that "[u]nder the statutory scheme, following the denial of a motion to quash, a court cannot order a defendant to file only an answer. Such an order is improper because the statutes do not limit the defendant's responsive pleading to an answer, and a demurrer is an acceptable responsive pleading."

More real property posts

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