5
Subdivision (e) provides: “A defendant or cross-defendant may make a motion
under this section and simultaneously answer, demur, or move to strike the complaint or
cross-complaint. [¶] (1) Notwithstanding Section 1014, no act by a party who makes a
motion under this section, including filing an answer, demurrer, or motion to strike
constitutes an appearance, unless the court denies the motion made under this section. If
the court denies the motion made under this section, the defendant or cross-defendant is
not deemed to have generally appeared until entry of the order denying the motion. [¶]
(2) If the motion made under this section is denied and the defendant or cross-defendant
petitions for a writ of mandate pursuant to subdivision (c), the defendant or cross-
defendant is not deemed to have generally appeared until the proceedings on the writ
petition have finally concluded. [¶] (3) Failure to make a motion under this section at
the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack
10
that amendment, if a party files a motion to quash for lack of personal jurisdiction
“before or simultaneously with an act that would otherwise constitute a general
appearance, under subdivision (e) of section 418.10 that party will not be deemed
to have ‘generally appeared’ in the action, but instead will be deemed to have
‘specially appeared’ and not waived the party’s jurisdictional challenge.” (Id. at p.
426.)
Finally, besides the flaws in Delta’s reasoning and its broad language, the
actual holding of the case is limited. Though the court’s discussion purported to
state a general rule regarding use of a motion to quash, the court’s specific holding
was: “This appeal raises the issue of whether 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. Under the circumstances of
this case, we hold in the affirmative . . . .” (Delta, supra, 146 Cal.App.3d at pp.
1034-1035, italics added.)
Thus, the holding of Delta (despite the decision’s all encompassing
language) is limited to the circumstances in Delta. Those circumstances were that
the complaint failed to allege proper service of a notice to pay or quit. (Delta,
supra, 146 Cal.App.3d at p. 1036.) It was thus defective on its face because it
contained “none of the required allegations regarding notice. It merely allege[d]
that, ‘More than 3 days and more than 30 days have lapsed since the Defendants
were given notice . . . .’ There [was] no allegation that the notice was in writing,
that it specified the alleged breaches of the lease or that it unequivocally demanded
possession.” (Ibid.)