Court Limits a Tenant’s Ability to Challenge an Unlawful Detainer Action

Landlord & Tenant Law, Legal Update, Real Estate Law, and Unlawful Detainers & Evictions by Peter N. Brewer, Esq.

Sofia Borsuk (“Borsuk”) was a tenant at LA Hillcreste Apartments in Los Angeles.  In March, 2015, LA Hillcreste served Borsuk with a 3-day notice to pay rent or quit.  After Borsuk failed to pay rent, LA Hillcreste attempted to evict Borsuk.  In the lawsuit, Borsuk moved to quash service of the summons and the complaint.  The motion to quash is an argument that the court does not have jurisdiction over a party.  Here, Borsuk alleged that LA Hillcreste failed to properly serve the 3-day notice and therefore the court could not hear the case.  Borsuk provided declarations from her and her husband stating that the three-day notice was improperly left at her door.  In the complaint, LA Hillcreste alleged that it properly served the three-day notice by posting the notice on her door and mailing it.  The trial court denied Borsuk’s motion and she appealed to the Appellate Division of the Superior Court.

There, the court disagreed with the trial court and found that a motion to quash was the proper way for a tenant to challenge service of the three-day notice.  The judges there held that although they disagreed with a previous court decision, they were required to follow the decision until it was overturned.  One of the judges authoring the decision requested that the Appellate Court review the decision and reverse the previous case.  Accordingly, the Second Appellate District of the Court of Appeal accepted the matter and issued an opinion.


The Second Appellate District of the Court of Appeals overturned the lower court’s decision and held that a motion to quash was not the proper way for a tenant to challenge service of the 3-day notice.  Additionally, the Court found that the previous case was poorly decided and should be overturned.  The Court held that the purpose of the motion to quash is to determine if there are any challenges to the jurisdiction of the court, not to determine if there a plaintiff failed to meet elements required to prevail in the case.  As with any other lawsuit, a court has jurisdiction over a party when the summons and complaint are served.  Whether the 3-day notice was properly served does not change that fact, it only determines whether the landlord will be able to prevail in the case.  Further, since the landlord used a Judicial Council form, the landlord made all of the required allegations that service of the 3-day notice was properly completed.


Although this case focuses on technical issues, the practical implications are profound.  Previously, a tenant could provide evidence that the 3-day notice was improperly served and seek dismissal of the case without a trial.  Now, the court has held that such challenges are not permitted and essentially, the tenant has to raise the matter at trial.  While an unlawful detainer action is an expedited proceeding, this will force tenants to risk their case at trial without an opportunity to test their defense before a judgment can be issued against them.  Likely, this will cause many tenants to settle their case or reach other accommodations to avoid the risk of losing and having an eviction on their record even if they had a legitimate defense.


The Appellate Court’s reasoning was thorough and well thought out.  The Court went step-by-step in analyzing the underlying law and provided multiple reasons why the previous ruling was incorrect.  While the motion to quash was the wrong vehicle to challenge issues with the 3-day notice, the legal system does not provide any other method of raising a factual dispute over the 3-day notice.  It will be interesting to see if the legal system provides another creative alternative to allow tenants to raise factual challenges to the eviction process short of going to trial.

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