Filed 10/16/17




                             CERTIFIED FOR PUBLICATION
                       APPELLATE DIVISION OF THE SUPERIOR COURT
                      STATE OF CALIFORNIA, COUNTY OF LOS ANGELES


VAN BUTENSCHOEN,                                       )   No. BV 031862
                                                       )
        Plaintiff and Respondent,                      )   Pomona Trial Court
                                                       )
                 v.                                    )   No. 16UR0567
                                                       )
CYNTHIA FLAKER et al.,                                 )
                                                       )
        Defendants and Appellants.                     )   OPINION
                                                       )

        APPEAL from a judgment of the Superior Court of Los Angeles County, Dan Thomas
Oki, Judge. Reversed.
        Cynthia Flaker and Chris Flaker, in Propria Persona, for Defendants and Appellants.
        Brennan Law Firm and Michael Brennan for Plaintiff and Respondent Van Butenschoen.
                                    *              *             *




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                                         INTRODUCTION
         In response to an unlawful detainer complaint, a defendant may, as was done in this
case, file a motion to quash service of the summons. (Code Civ. Proc., §§ 418.10, 1167.4.) If,
in denying the motion to quash, the trial court also orders the defendant to “only” file an answer
to the complaint, the trial court effectively deprives that defendant of his or her right to file a
demurrer (Code Civ. Proc., § 422.10). Such was the case here. After defendants Cynthia
Flaker and Chris Flaker were sued in unlawful detainer, they filed a motion to quash. The court
denied the motion and, in so doing, it specified that defendants were permitted to “answer”
within five days. Defendants responded to the order by timely filing a demurrer. Presumably
because no answer was filed, default judgment was entered against them, and they now appeal.
We reverse the judgment because, in denying a motion to quash an unlawful detainer summons,
the trial court may not restrict a defendant’s responsive pleading to an answer.
                                         BACKGROUND
         Plaintiff and respondent Van Butenschoen filed his action on March 1, 2016, alleging
defendants failed to comply with a three-day notice to pay rent or quit. Plaintiff requested
possession of the residential property, forfeiture of the rental agreement, court costs, and
damages.
         On March 8, 2016, defendants filed a motion to quash based on improper service of the
summons and complaint. Plaintiff filed an opposition, arguing defendant Chris Flaker was
personally served with the documents and defendant Cynthia Flaker was served through
substituted service.
         On March 14, 2016, the trial court denied the motion to quash. The court’s order
stated, “Motion is denied. [¶] Defendant has 5 days to answer.” A clerk’s certificate of
mailing indicated that on March 14, 2016, a copy of the minute order was mailed to defendants.
On March 18, 2016, plaintiff served defendants with a notice of the ruling which stated,
“1. Defendant’s motion is denied; [¶] 2. Defendant has five (5) days to file and serve an answer
only.”



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       On March 24, 2016, defendants filed a petition for a writ of mandate challenging the
trial court’s order. This court denied the petition and on April 1, 2016, mailed defendants a
copy of the minute order denying the petition.
       On April 18, 2016, defendants filed a demurrer to the complaint. Nonetheless, on
April 18, 2016, the clerk entered a default judgment against defendants. Defendants
subsequently filed a notice of appeal from the judgment.
                                          DISCUSSION
       Because the determination of the issues rests upon the construction of statutes, the issues
are questions of law which we review de novo. (Ceja v. Rudolph & Sletten, Inc. (2013) 56
Cal.4th 1113, 1119.) An “appeal from [a] default judgment presents for review only the
questions of jurisdiction and the sufficiency of the pleadings. [Citations.]” (Corona v.
Lundigan (1984) 158 Cal.App.3d 764, 766-767.) A prematurely entered default judgment is
null and void. (Whealton v. Whealton (1967) 67 Cal.2d 656, 659; Baird v. Smith (1932) 216
Cal. 408, 410.)
Statutory Scheme
       The summons in an unlawful detainer complaint calls for a response in five days (Code
Civ. Proc., § 1167), as opposed to the usual 30 days provided for in other civil cases (Code Civ.
Proc., § 412.20). Code of Civil Procedure section 1167 provides, in relevant part, “The
summons shall be in the form specified in [Code of Civil Procedure s]ection 412.20 except that
when the defendant is served, the defendant’s response shall be filed within five days, including
Saturdays and Sundays but excluding all other judicial holidays, after the complaint is served
upon him or her.” Code of Civil Procedure section 412.20, subdivision (a)(3), similarly calls
for the filing of “a written pleading in response to the complaint.”
       A permissible “response” to a complaint is not limited to an answer. Code of Civil
Procedure section 422.10 unambiguously defines what pleadings are allowed in civil actions;
they include answers and demurrers. (Code Civ. Proc., § 422.10 [“The pleadings allowed in
civil actions are complaints, demurrers, answers, and cross-complaints”].) Code of Civil
Procedure section 1170 allows a defendant appearing in an unlawful detainer action to either

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“answer or demur.” The Court of Appeal in Borsuk v. Appellate Division of Superior Court
(2015) 242 Cal.App.4th 607, 617, footnote 7, made this point clear, indicating “[a] tenant may
attack the legal sufficiency of an unlawful detainer complaint by demurrer or motion to strike,
‘depending on the defect attacked.’ [Citation.]”
       Once a defendant files a motion to quash, a default judgment cannot be entered until
after expiration of the defendant’s time to demur or answer a complaint. (Code Civ. Proc.,
§§ 418.10, subd. (d), 585.) Code of Civil Procedure section 586, subdivision (a)(2), provides,
“[J]udgment shall be rendered . . . , as if the defendant had failed to answer: [¶] . . . [¶] . . . if the
demurrer is overruled . . . , and the defendant fails to answer the complaint within the time
allowed by the court.”
       Pursuant to Code of Civil Procedure section 1167.4, subdivision (b), the filing of a
motion to quash extends the time to plead until five days after service of the written notice of
entry of the order denying the motion, and Code of Civil Procedure section 418.10,
subdivision (c), extends the time even further if a petition for writ of mandate based on the
denial of the motion to quash is denied by the appellate court.
       Because the language used in the statutes is clear and unambiguous, we apply the
provisions as expressed without engaging in further construction. (See Nguyen v. Western
Digital Corp. (2014) 229 Cal.App.4th 1522, 1544 [“‘“If there is no ambiguity in the language
of the statute, ‘then the Legislature is presumed to have meant what it said, and the plain
meaning of the language governs’”’”].)
       Under 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. (Code Civ. Proc., §§ 422.10, 1170.) Further, following the denial of the
motion to quash, a trial court has no authority to enter a default judgment until the time to file
an answer or demurrer has expired. (Code Civ. Proc., § 586, subd. (a)(4).)




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Application of the Law to the Present Case
       Defendants filed a timely motion to quash service of the summons and complaint on
March 8, 2016, and the court denied the motion on March 14, 2016. In denying the motion, the
trial court ordered, “Defendant has 5 days to answer.” The court did not state defendants had
“5 days to respond,” or “5 days to plead.” Under these circumstances, and taking into account
plaintiff mailed a notice of ruling stating, “Defendant has five (5) days to file and serve an
answer only,” we construe the court’s order as having permitted only the filing of an answer.
       As discussed above, restricting defendants’ responsive pleading to only an answer was
improper. Defendants had the right to file a demurrer prior to filing an answer.
       Defendants filed a petition for a writ of mandate challenging the order denying the
motion to quash, and thus their time to plead was extended 10 days from the service of written
notice of the final judgment in the mandate proceeding. (See Code Civ. Proc., § 418.10,
subd. (c).) On April 1, 2016, defendants were served by mail with notice of the denial of their
writ petition, and Code of Civil Procedure section 1013 (the statute which extends the time to
respond where notice is served by mail) allowed another five calendar days for the filing of a
responsive pleading. Hence, the time period to plead was extended to April 16, 2016. But,
since April 16, 2016, was a Saturday, the deadline to respond was Monday, April 18, 2016.
(Code Civ. Proc., § 12a.)
       Defendants, therefore, had until the end of April 18, 2016, to respond to the complaint,
meaning the earliest that judgment could lawfully have been entered was April 19, 2016.
Defendants filed their demurrer on April 18, 2016, and yet default judgment was entered on




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that same date. As the default judgment was entered prematurely, the judgment was void and
must be reversed.
                                      DISPOSITION
      The judgment is reversed. Defendants to recover costs on appeal.



                                              _________________________
                                              Ricciardulli, J.

      We concur:



      _________________________               _________________________
      Kumar, Acting P. J.                     Richardson, J.




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