Judge: Stephen P. Pfahler, Case: 22CHCV00289, Date: 2023-02-15 Tentative Ruling

Case Number: 22CHCV00289    Hearing Date: February 15, 2023    Dept: F49

Dept. F-49

Date: 2-15-23 (specially set via 1-30-23 ex parte order)

Case # 22CHCV00289

Trial Date: Not Set

QUASH

MOVING PARTY: Defendant, Charles Johnson

RESPONDING PARTY: Plaintiff, Dunn Investment Properties, Inc.

RELIEF REQUESTED

Motion to Quash

SUMMARY OF ACTION

On May 10, 2022, Plaintiff Dunn Investment Properties, Inc. filed a complaint for Unlawful Detainer against Charles and Sheila Johnson. Plaintiff alleges rent increased from $7,411 to $20,000/month as of January 1, 2022. Defendant failed to make the lease payments due in March and April 2022, with an outstanding balance of $39,112 as of the complaint filing date.

On June 30, 2022, the court sustained the demurrer to the complaint. Plaintiff filed a first amended complaint for unlawful detainer on July 6, 2022. On August 2, 2022, the court denied the motion to bifurcate the action. On September 16, 2022, the court sustained the demurrer to the first amended complaint. On September 26, 2022, Plaintiff filed a verified second amended complaint.

On January 19, 2023, the court granted the motion to strike the second amended complaint. On January 26, 2023, Plaintiff filed the third amended complaint.

RULING: Denied.

Defendant Charles Johnson moves to quash service of the third amended complaint on grounds of improper service. Defendant contends the third amended complaint was untimely filed, and served Defendant with an unfiled complaint. Plaintiff challenges the propriety of the motion following a general appearance in the action. Plaintiff additionally states that the third amended complaint was filed and served within the time allotted by the court. The court electronic filing system shows no reply on file at the time of the tentative ruling publication cutoff.

The court previously denied the motion to quash service of the second amended complaint.

"[A] defendant may properly use a motion to quash to challenge personal jurisdiction in an unlawful detainer case. Section 418.10 authorizes a motion to quash only where the summons is improper, or the service of process is defective … “ (Stancil v. Superior Court (2021) 11 Cal.5th 381, 400–401.)

On January 19, 2023, the court granted the motion to strike the second amended complaint, and ordered the filing of the amended complaint no later than five (5) days from the hearing date. Notwithstanding the explicit order, Plaintiff filed the third amended complaint on January 26, 2023—seven (7) days from the date of the order, or six (6) days if the date of the hearing is not counted. The third amended complaint was also served by mail on Defendant on January 20, 2023.

Other than a request to dismiss the third amended complaint, due to the late filing, the motion otherwise lacks any legal support for the improper service argument, especially considering Defendant’s undisputed general appearance in the action. The court declines to consider any argument for improper service following the general appearance. The court additionally deems the third amended complaint now filed, and therefore alternatively declines to dismiss the action based on the argued violation of the court order. (Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 873-874.)

The motion is denied. Defendant is ordered to file a responsive pleading(s) within five (5) days of this order, plus an additional five (5) days for mailing, IF AND ONLY IF, applicable. (Code Civ. Proc., § 1167.4, subd. (b); Butenschoen v. Flaker (2017) 16 Cal.App.5th Supp. 10; see Code Civ. Proc., § 1013, subd. (a).)

Defendant to give notice.