Borsuk v. Appellate Division of Superior Court, 242 Cal. App. 4th 607 (2015)

4
      The requirement that the landlord comply with sections 1161 and 1162 by
serving the three-day notice on the tenant is undisputed. (See Palm Property,
supra, 194 Cal.App.4th at p. 1425.) The question is whether the tenant may
challenge the landlord’s alleged failure to comply with this requirement by moving
to quash service of summons under section 418.10. We conclude that the tenant
may not, and in doing so we disagree with the leading case on the point, Delta,
supra, 146 Cal.App.3d 1033.
      In Delta, the court held that “[u]nder the circumstances of this case,” “a
tenant in an unlawful detainer action is entitled to quash service of summons where
the underlying complaint fails to state a cause of action for unlawful detainer.”
(Delta, supra, 146 Cal.App.3d at pp. 1034-1035.) In so holding, the court declared
that “[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. [Citation.]” (Id. at p. 1035.) The court
disagreed with the trial court’s view that the defendant’s remedy was a demurrer
rather than a motion to quash service, stating that “[a] motion to quash service is
the only method by which the defendant can test whether the complaint states a
cause of action for unlawful detainer and, thereby, supports a five-day summons.
A general demurrer only tests whether the complaint states a cause of action for
something even if it is on a theory other than unlawful detainer. [Citations.]
Moreover, if the defendant appears in the action by filing a demurrer, he moots the
very point he is seeking to raise. [Citations.]” (Id. at p. 1036.)
      Delta “has created confusion . . . among some practitioners as to whether a
tenant must challenge an unlawful detainer complaint by demurrer or by motion to
quash [citations].” (Parsons v. Superior Court (2007) 149 Cal.App.4th Supp. 1, 5
(Parsons); see Cal. Eviction Defense Manual (Cont.Ed.Bar 2d ed. 2015) § 11.28