Metropolitan News-Enterprise


Friday, October 27, 2017


Page 3


Appellate Department:

Judge Can’t Restrict Responsive Pleading to an Answer


By a MetNews Staff Writer


A judge, after denying a motion to quash the service of the summons in an unlawful detainer action, did not have the prerogative of limiting the responsive pleading to an answer, the Appellate Department of the Los Angeles Superior Court has ruled in reversing a default judgment that was entered after the defendant filed a demurrer.

The opinion, filed Oct. 16 and publicly released yesterday after the Court of Appeal deemed transfer to itself to be unnecessary, reverses a decision of Los Angeles Superior Court Judge Dan Oki. Judge Alex Ricciardulli wrote:

“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….Such was the case here.”

Despite Oki’s order that an “answer” be filed within five days, defendants Cynthia Flaker and Chris Flaker filed a demurrer, and the same day, the clerk entered a default judgment against them.

“We reverse the judgment because, in denying a motion to quash an unlawful detainer summons,” Ricciardulli said, “the trial court may not restrict a defendant’s responsive pleading to an answer.”

He explained:

“Code of Civil Procedure section 422.10 unambiguously defines what pleadings are allowed in civil actions; they include answers and demurrers.”

Even if the order to file an answer, only, had been valid, the jurist said, the judgment would be infirm.

After unsuccessfully seeking a writ of mandate to gain permission to demur, the Flakers “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,” Ricciardulli noted. He continued:

“Defendants filed their demurrer on April 18, 2016, and yet default judgment was entered on that same date.  As the default judgment was entered prematurely, the judgment was void and must be reversed.”

The case is Butenschoen v. Flaker, 17 S.O.S. 5258.

The Flakers were in pro per. Michael Brennan represented the landlord.


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