Judge Daniel M. Crowley, Case Number: 24STCV12262, Date: 2024-11-12 Tentative Ruling

Specially Appearing Defendant in pro per, Gerardo Friend’s, unopposed motion to quash service of summons of Plaintiff Downtown Qof II, LLC’s complaint is denied as moot.

Specially Appearing Defendant Gerardo Friend (“Friend”) (“Specially Appearing Defendant”), in pro per, moves unopposed to quash service of summons by Plaintiff Downtown Qof II, LLC’s (“Downtown”) (“Plaintiff”). (Notice of Motion, pg. 1; C.C.P. §418.10(a)(1).)

Plaintiff filed its initial Complaint on May 15, 2024, for unlawful detainer against Specially Appearing Defendant arising from his tenancy at 1348 South Flower St., Los Angeles, CA 90015 (“Subject Premises”), which is owned by Plaintiff. (Complaint ¶¶3-4.)

On August 19, 2024, Specially Appearing Defendant filed a notice of performance tender and delivery of possession, indicating that keys and possession of the at-issue premises was delivered to the landlord on June 14, 2024. (8/19/24 Notice.)

Specially Appearing Defendant filed the instant motion on August 20, 2024. As of the date of this hearing no opposition has been filed.

On October 2, 2024, Plaintiff filed a first amended complaint (“FAC”). On November 5, 2024, Plaintiff filed a notice and acknowledgement of receipt indicating that the FAC and summons were served on Specially Appearing Defendant.

“A motion to quash service is the proper method for determining whether the court has acquired personal jurisdiction over the defendant through service of the five-day unlawful detainer summons.” (Delta Imports, Inc. v. Municipal Court (1983) 146 Cal.App.3d 1033, 1035.) “If the underlying complaint fails to state a cause of action for unlawful detainer, then use of the five-day summons is improper, and the defendant is entitled to an order quashing service as a matter of law.” (Id.)

A demurrer is the proper procedure for challenging the sufficiency of a complaint. A motion to quash is the proper method to challenge service of summons where no unlawful detainer is pled. (Id. at pg. 1036.) This follows because the special five-day summons can only be used with an unlawful detainer complaint. (Stancil v. Superior Court (2021) 11 Cal.5th 381, 397.) (Compare Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 616-617.)

Motions to quash can be used where there are no unlawful detainer claims, but cannot be used “to argue the plaintiff failed to comply with the pleading requirements specific to unlawful detainer actions set out in [C.C.P.] section 1166” or to contest the truth of the complaint’s allegations. (Stancil, 11 Cal.5th at pg. 391.)

Specially Appearing Defendant’s motion to quash Plaintiff’s service of summons of the initial complaint is denied as moot.

Each party has the right to amend its pleadings once—without leave of court—within a brief time after its original pleading is filed. The purpose is to facilitate prompt correction of errors or deficiencies in the original pleading. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 574.) Plaintiffs can amend their complaint once without leave of court before defendant’s answer, demurrer, or motion to strike is filed. (C.C.P. §472; see Woo v. Superior Court (1999) 75 Cal.App.4th 169, 175.)

Here, Plaintiff filed the operative FAC on October 2, 2024, and filed proof of Specially Appearing Defendant’s Acknowledgment of Receipt of the FAC and summons. Plaintiff corrected the errors and deficiencies of the original pleading. (Hedwall, 22 Cal.App.5th 564, 574.) Further, Plaintiff’s amendment to the complaint was proper because Specially Appearing Defendant’s motion to quash did not necessitate Plaintiff to seek leave of court before filing the FAC. (C.C.P. §472.) Regarding the instant motion, Specially Appearing Defendant has accepted service of the FAC by signing the Acknowledgment of Receipt.

Accordingly, Specially Appearing Defendant’s motion to quash Plaintiff’s service of summons is denied as moot.

Specially Appearing Defendant’s unopposed motion to quash service of summons is denied as moot.

Hon. Daniel M. Crowley

Judge of the Superior Court