Judge: Ashfaq G. Chowdhury, Case: 24NNCV00228, Date: 2024-05-03 Tentative Ruling

Case Number: 24NNCV00228    Hearing Date: May 3, 2024    Dept: E

Case No: 24NNCV00228
Hearing Date: 05/03/2024 – 9:00am

Trial Date: UNSET

Case Name: TIPIR, LLC v. JUN XU, et al.

2 TENTATIVE RULINGS on 2 MSJs
On eCourt, there is a Motion for Summary Judgment by Plaintiff that does not have a CRS number that is on calendar for 5/3/2024 at 9:00am.

On eCourt, there is also a Motion for Summary Judgment by Defendant that does not have a CRS number that is on calendar for 5/3/2024 at 9:00am.

The “status” of both of these MSJs, as listed on eCourt, is “Reserved,” as Opposed to “Scheduled.”

Confusingly, in the April 15, 2024 Minute Order, the Court notes:

Court reserves the Motion for Summary Judgment for plaintiff and defense counsel.

Hearing on Motion for Summary Judgment filed by Plaintiff is scheduled for 05/03/24 at 09:00 AM in Department E at Glendale Courthouse.

Hearing on Motion for Summary Judgment filed by Defense is scheduled for 05/03/24 at 09:00 AM in Department E at Glendale Courthouse.

(4/15/2024 Min. Order, p. 2.)

It is unclear, based on the 4/15/2024 Minute Order, if the Court intended the two MSJs to be “scheduled” in terms of how eCourt denotes a motion’s “Status,” or if the Court was saying that the two MSJs are “scheduled” in the everyday sense of the term.

Either way, as of 4/30/2024, neither Defendant nor Plaintiff’s counsel has filed a motion for summary judgment.

Under CCP § 1170.7 [which is in the CCP at Part 3, Title 3, of Chapter 4 which is titled “Summary Proceedings for Obtaining Possession of Real Property in Certain Cases [1159 – 1179a]”], “A motion for summary judgment may be made at any time after the answer is filed upon giving five days notice. Summary judgment shall be granted or denied on the same basis as a motion under Section 437c.” (Ibid.)

Here, not only has an answer not been filed, but five days notice has not been given. The hearing is for 5/3/2024, and as of 4/30/2024, no MSJ has been filed by either party.

To the extent that these two MSJs are on calendar for 5/3/2024, they are both DENIED.

Case No: 24NNCV00228

Hearing Date: 05/03/2024 – 9:00am

Trial Date: UNSET

Case Name: TIPIR, LLC v. JUN XU and TOP AUTO PARTS, INC.

[3 TENTATIVE RULINGS ]

MOTION TO QUASH SERVICE OF SUMMONS

RELIEF REQUESTED

“Defendant, Jun Xu, moves pursuant to CCP § 418.10(a)(1) for an order quashing
service of summons of the unlawful detainer complaint filed by Plaintiff,
Tipir, LLC.

This
Motion is made on the grounds that the Court lacks jurisdiction over Jun Xu
because Jun Xu has NOT been properly served with the Summons or the Complaint.
Plaintiff purports to have personally served Jun Xu on March 15, 2024, at the
address of the entity defendant, Top Auto Parts, Inc. (“Top Auto”), located at
820 Alpha St., Duarte, CA 91010 (the “Premises”), notwithstanding that due to a
medical condition (among other things), Jun Xu has not physically been present
at the Premises since December of 2023.”

BACKGROUND

The instant motion to
quash arises from an unlawful detainer action in 24NNCV00228 that was filed on
3/13/2024. The instant proof of service that is being contested here was filed
on 3/18/2024 and alleges proof of personal service on moving Defendant on
3/15/2024.

The
motion to quash proof of personal service was filed on 3/19/2024. Confusingly,
another proof of service was filed on 4/8/2024 in this case alleging personal
service on Defendant; however, this proof of service was filed after the motion
to quash; therefore, the motion to quash is directed at the initial proof of
service filed on 3/18/2024.

To
add further confusion, another unlawful detainer action was filed on 4/9/2024
with a case number of 24NNCV00849. Then, on 4/10/2024, a proof of personal
service was filed pertaining to moving Defendant; however, the proof of service
indicates it pertains to case number 24NNCV00228, not the case that was filed a
day before on 4/9/2024 in 24NNCV00849.

In
the 4/15/2024 Minute Order, the Court ordered 24NNCV00228 and 24NNCV00849
consolidated, and designated 24NNCV00228 as the lead case, and that all future
documents must be filed under 24NNCV00228.

PROCEDURAL ANALYSIS

Moving Party:
Defendant, Jun Xu

Responding Party: No
Opposition by Plaintiff

Moving Papers:
Notice/Memorandum; Request for Judicial Notice

Opposition Papers: No
Opposition

Reply Papers: No Reply

Proof of
Service Timely Filed (CRC Rule 3.1300):Ok

16/21 Court Days Lapsed (CCP 1005(b)): Ok

Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

ANALYSIS

CCP §§ 1167 and 418.10(a)(1)

Defendant argues that this motion is timely under CCP
§§ 1167 and 418.10(a)(1).

Under § 1167, “The summons shall be in the form specified
in Section 412.20 except that when the defendant is served, the defendant’s
response shall be filed within five days, excluding Saturdays and Sundays and
other judicial holidays, after the complaint is served upon the defendant.”
(CCP § 1167(a).)

Further, a defendant, on or before the last day of his
or her time to plead or within any further time that the court may for good
cause allow, may serve and file a notice of motion to quash service of summons
on the ground of lack of jurisdiction of the court over him or her. (CCP §
418.10(a)(1).)

Here, this motion appears to be timely. The Complaint
and Summons were allegedly personally served on Friday, March 15^th,
2024. Since Saturdays and Sundays are excluded under 1167(a), Defendant filed
this motion within five days because it was filed on Tuesday, March 19^th,
2024.

Challenging Personal Service

 “ ‘Lack of
jurisdiction in its most fundamental or strict sense means an entire absence of
power to hear or determine the case, an absence of authority over the subject
matter or the parties.” [Citation omitted.] “When a court lacks jurisdiction in
a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to
direct or collateral attack at any time.’” (Strathvale Holdings v. E.B.H. (2005)
126 Cal.App.4th 1241, 1249.)

“Lack of personal jurisdiction renders a judgment (or
default) void, and the default may be directly challenged at any time.” (Strathvale
Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1250.)

“Actual notice of the action alone, however, is not a
substitute for proper service and is not sufficient to confer jurisdiction.
‘[N]o California appellate court has gone so far as to uphold a service of
process solely on the ground the defendant received actual notice when there
has been a complete failure to comply with the statutory requirements for
service.’” (American Express Centurion Bank v. Zara (2011)
199 Cal.App.4th 383, 392 citing Summers v. McClanahan (2006) 140
Cal.App.4th 403, 414.)



Defendant here challenges personal service. Defendant cites to Summers v.
McClanahan which states, “When a defendant challenges the court's personal
jurisdiction on the ground of improper service of process the burden is on the
plaintiff to prove the existence of jurisdiction by proving, inter alia, the
facts requisite to an effective service.” (Summers v. McClanahan (2006)
140 Cal.App.4th 403, 413.)

While Defendant cites Summers to show that the
burden is on the Plaintiff to prove jurisdiction, the Court notes that there
may be case law out there that says otherwise.

“[T]he filing of a proof of service creates
a rebuttable presumption that the service was proper” but only if it “complies
with the statutory requirements regarding such proofs.” (Dill v. Berquist
Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

Either way, even if Plaintiff established a rebuttable
presumption, Defendant here seems to successfully rebut the presumption.

Here, Plaintiff’s proof of service on Defendant
indicates personal service on March 15, 2024. Under CCP § 415.10, “A summons
may be served by personal delivery of a copy of the summons and of the
complaint to the person to be served. Service of a summons in this manner is
deemed complete at the time of such delivery.”. (Ibid.)

Plaintiff allegedly personally served Moving
Defendant, Jun Xu, at 820 Alpha Street, Duarte, CA 91010 on March 15, 2024 at
8:54am.

Defendant submits the declaration of Defendant, Jun
Xu. Jun Xu states that on February 22, 2019, Defendants Top Auto Parts and Jun
Xu entered into a Standard Industrial/Commercial Single-Tenant Lease-Gross for
a term of 5 years for the Premises located at 820 Alpha Street, Duarte, CA
91010. (Xu Decl. ¶ 3.) Xu states that although the proof of service of summons
and complaint indicates personal service on March 15, 2024, Xu was never
personally served at the Premises. (Xu Decl. ¶¶ 8-9.) Xu states they have never
been present on the premises since December 2023. (Xu Decl. ¶9.) Further, Xu
states that on January 31, 2024, they were hospitalized for 5 days due to a
stroke and brain bleed, and upon release, they took their doctor’s stay at home
order very seriously. (Xu Decl. ¶ 10-11.) As of the date of Xu’s declaration on
March 18, 2024, Xu states they are still convalescing at home and trying to
recover. (Xu Decl. ¶ 12.) Xu states that they were not physically present at
the Premises on March 15, 2024, that they never received personal service of
summons and complaint by a process server on March 15, 2024, or by any other
method of service on March 15, 2024, or on any other date. (Xu Decl. ¶ 13.)

TENTATIVE RULING

Defendant’s,
Jun Xu, motion to quash service of summons due to lack of jurisdiction for
failure to be properly served is GRANTED. Xu sufficiently established they were
not personally served on March 15, 2024, as the proof of service indicated. No
Opposition has been submitted to contest any of Xu’s claims.

Defendant requested judicial notice of the proof of
service filed with the Court on 3/18/2024 that indicated proof of personal
service on Jun Xu on March 15, 2024. The request for judicial notice is
GRANTED.

DEMURRERS 1 and 2

PRELIMINARY MATTER

Both
Defendants, Top Auto Parts, Inc. and Jun Xu demurred generally and specially on
identical grounds. Both Defendants are represented by the same counsel.
Therefore, the Court will combine these two demurrers into one analysis.

RELIEF REQUESTED

Defendants, Top Auto Parts, Inc. and Jun Xu, generally and specially demur to
the unlawful detainer Complaint (the “Complaint”), filed by Plaintiff Tipir,
LLC (“Tipir, LLC” or “Plaintiff”), on the following grounds:

1. The 3-Day Notice to Pay or Quit attached to
Plaintiff's Complaint for Unlawful Detainer as Exhibit 2 demanding the payment
of a “Late Fee” is fatally defective. Pursuant to Code of Civil
Procedure § 1161(2), for a 3-day notice to be valid, it must contain certain
required information as outlined in the Code. It can only assert a demand for “the
amount of rent in default”. No “Late Fee” can be demanded in the 3-day
notice. CCP § 1161(2); Del Monte Properties & Investments, Inc. v. Dolan
(2018) 26 Cal. App. 5th Supp. 20, 24-25 (late fee could not be justified as
liquidated damages under Civ. Code, § 1671 where landlord failed to show
damages for late payment of rent were extremely difficult or impracticable to
determine).

2. The 3-Day Notice to Pay or Quit attached to
Plaintiff's Complaint for Unlawful Detainer as Exhibit 2 demanding payment of
rent is further invalid in that it lacked a physical address of “the person to
whom the rent payment shall be made.” Pursuant to CCP § 1161(2), a 3-day notice
to pay or quit must specifically identify the place for payment of rent, and
contain the following information:

(1) name of tenant(s) and Subtenant(s);

(2) amount due; and

(3) the name, telephone number and
address to whom the rent shall be paid:

(a) If rent may be made personally, the
usual days and hours that person will be available to receive payment;

(b) (If the address does not allow for
personal delivery, then it shall be conclusively presumed that upon mailing of
rent the rent is deemed received by the owner on date posted if tenant can show
proof of mailing to name an address of owner);

(c) or the number of an account in a
financial institution, with name and address of the institution within five
miles of the rental property;

(d) or if electronic funds transfer has
been established that payment may be made pursuant to that procedure. See also
Foster v. Williams (2014) 229 CalApp.4th Supp. 9, 14-15 (“The three-day notice
in the present case listed the name of the person to whom defendant had to
deliver the rent payment as “Rick,” and provided his telephone number. But the
notice did not list Rick's address, the physical place where defendant could
pay the rent and avoid an unlawful detainer; it listed a URL address. The
notice thus failed to comply with Code of Civil Procedure section 1161,
subdivision (2).” Id at. 16.)

3. The 30-Day Notice to Vacate attached to
Plaintiff's Complaint for Unlawful Detainer as Exhibit 2 demanding that
Defendant “vacate and deliver possession of the Premises to Lessor within
thirty (30) calendar days after service of this Notice upon you . . .” purports
to have been personally served on March 7, 2024, making April 6, 2024, the
deadline for Defendant to vacate the Premises. Notably, the UD Complaint was
filed on March 13, 2024, and is premature. A complaint filed before a
cause of action has arisen is fatally defective and must be dismissed outright.
Lemanna v. Vognar (1993) 17 Cal.App. 4th Supp. 4, 6, 8.

“This Demurrer is brought pursuant to Code of Civil
Procedure §§ 430.10(e), (f), 430.30, 430.40(a), and 430.50(a), and will be
based upon this Notice, the Memorandum of Points and Authorities filed
concurrently herewith, those matters of which the Court may take judicial
notice, and upon all papers filed in this action, and upon such oral and
documentary evidence as may be received at the time of the hearing.”

BACKGROUND

The
instant unlawful detainer action was filed on 3/13/2024. The attachment to the
Complaint indicates that this lease pertained to a term lease that was to
expire on February 28, 2024, that Plaintiff did not renew or extend the lease,
and that Defendants also refused to pay rent under the lease for the months of
January and February 2024. (See Attachment 17 to Complaint.)

The form Complaint indicates that both a 3-day notice
to pay rent or quit and a 30-day notice to quit was served on March 7, 2024. The
3-day notice to pay or quit for failing to pay rent in January and February of
2024 is attached at Exhibit 2 to the Complaint. Also attached to Exhibit 2 is
the thirty day notice to vacate for the lease expiring by its terms on February
28, 2024.

PROCEDURAL ANALYSIS

Moving
Party: Defendants, Top Auto Parts, Inc.
and Jun Xu

Responding Party: No Opposition by Plaintiff

Moving Papers: Demurrer

Opposition Papers: No Opposition

Reply Papers: No Reply

Proof of Service Timely Filed (CRC rule
3.1300):Ok

16/21 Court Days Lapsed (CCP 1005(b)): Ok

Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Meet and Confer

A
party filing a demurrer “shall meet and confer in person or by telephone with
the party who filed the pleading that is subject to demurrer for the purpose of
determining whether an agreement can be reached that would resolve the
objections to be raised in the demurrer.” 
(CCP § 430.41, subd. (a).)  “The
parties shall meet and confer at least five days before the date the responsive
pleading is due. If the parties are not able to meet and confer at least five
days prior to the date the responsive pleading is due, the demurring party
shall be granted an automatic 30-day extension of time within which to file a
responsive pleading, by filing and serving, on or before the date on which a
demurrer would be due, a declaration stating under penalty of perjury that a
good faith attempt to meet and confer was made and explaining the reasons why
the parties could not meet and confer.” 
(CCP § 430.41, subd. (a)(2).)

Failure to sufficiently meet and confer is not grounds
to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)

Here, Defendants’ counsel does not include a
declaration stating that a meet and confer occurred or that a meet and confer
was even attempted. Defendants’ counsel did not include any declaration with
its demurrers.

LEGAL STANDARDS FOR DEMURRERS

Demurrer – Sufficiency

A
demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda, (2007) 147 Cal.App.4th
740, 747.)  When considering demurrers,
courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of
Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  The court “treat[s]
the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law ….”  (Berkley v. Dowds (2007) 152
Cal.App.4th 518, 525.)  In a demurrer
proceeding, the defects must be apparent on the face of the pleading or via
proper judicial notice.  (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  A demurrer tests the pleadings alone and
not the evidence or other extrinsic matters; therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed.  (Code Civ. Proc., §§ 430.30, 430.70.)  The only issue involved in a demurrer hearing
is whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn, supra, 147 Cal.App.4th at
747.) 

The general rule is that the plaintiff need only
allege ultimate facts, not evidentiary facts. 
(Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “All that is required of a plaintiff, as a
matter of pleading … is that his complaint set forth the essential facts of the
case with reasonable precision and with sufficient particularity to acquaint
the defendant with the nature, source and extent of his cause of action.”  (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to
“determine whether or not the … complaint alleges facts sufficient to state a
cause of action under any legal theory.” 
(Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727,
734.)  Demurrers do not lie as to only
parts of causes of action, where some valid claim is alleged but “must dispose
of an entire cause of action to be sustained.” 
(Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
119.)  “Generally
it is an abuse of discretion to sustain a demurrer without leave to amend if
there is any reasonable possibility that the defect can be cured by
amendment.”  (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty

A
special demurrer for uncertainty, CCP § 430.10(f), is disfavored and will only
be sustained where the pleading is so bad that defendant cannot reasonably
respond—i.e., cannot reasonably determine what issues must be admitted or
denied, or what counts or claims are directed against him/her. 
(Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612,
616.)  Moreover, even if the pleading is somewhat vague, “ambiguities can
be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS

Defendants demur to the Complaint on three grounds.
The first two grounds on which Defendants demur pertain to CCP § 1161(2).

Under CCP § 1161, a tenant of real property, for a
term less than life, or the executor or administrator of the tenant’s estate
heretofore qualified and now acting or hereafter to be qualified and act, is
guilty of unlawful detainer:

2. When the tenant continues in
possession, in person or by subtenant, without the permission of the landlord,
or the successor in estate of the landlord, if applicable, after default in the
payment of rent, pursuant to the lease or agreement under which the property is
held, and three days’ notice, excluding Saturdays and Sundays and other
judicial holidays, in writing, requiring its payment, stating the amount that
is due, the name, telephone number, and address of the person to whom the rent
payment shall be made, and, if payment may be made personally, the usual days
and hours that person will be available to receive the payment (provided that,
if the address does not allow for personal delivery, then it shall be
conclusively presumed that upon the mailing of any rent or notice to the owner
by the tenant to the name and address provided, the notice or rent is deemed
received by the owner on the date posted, if the tenant can show proof of
mailing to the name and address provided by the owner), or the number of an
account in a financial institution into which the rental payment may be made,
and the name and street address of the institution (provided that the
institution is located within five miles of the rental property), or if an
electronic funds transfer procedure has been previously established, that
payment may be made pursuant to that procedure, or possession of the property,
shall have been served upon the tenant and if there is a subtenant in actual
occupation of the premises, also upon the subtenant.

(CCP § 1161(2).)

Ground 1 – Late Fee

Under
§ 1161(2), the three-day notice must state the amount that is due. Defendants
argue that since the three-day notice to pay or quit (see Ex. 2. Compl.) includes
late fees with the amount due, the three-day notice is rendered defective and
makes the Complaint subject to demurrer. Defendants argue that the three-day
notice can only demand the amount of rent in default, and not the late fees.

Defendants rely on Del Monte Properties &
Investments, Inc. v. Dolan (2018) 26 Cal.App.5th Supp 20 (“Del Monte”)
to support their argument.

Defendants reliance on Del Monte is misplaced
and does not support what Defendants argue it supports.

First, Del Monte was not procedurally at the
pleading stage.

In Del Monte, a summary judgment motion was
denied and the case proceeded to trial. On appeal, the Appellate Division reviewed
the trial court’s findings. The Appellate Division indicated that because the
Responded failed to meet its burden to show that the losses caused by the late
payment of rent were extremely difficult or impracticable to determine,
liquidated damages were not justified under Civil Code § 1671. (Del Monte at
23.)

Further, the Appellate Division ruled that the
Respondent failed to meet its burden to show that the late fee passed the
reasonable-endeavor test. (Del Monte at 24.)

Because of those findings, the Appellate Division
ruled that the notice upon which the complaint in the case is based was
defective because it included an invalid late fee and might not support a
judgment for unlawful detainer.( Del Monte at 25.)

Del Monte
did not say a three-day notice cannot include a request for late fees. Del
Monte ruled that the respondent did not meet its burden at trial to show
that the late fee met the reasonable-endeavor test.

Here, there have been no findings of fact and no trial
has occurred. Del Monte does not address a case at the pleading stage.

Further, for all the cases that Defendants cite with
respect to late fees, the Court of Appeal or Appellate Division was either
reviewing a case where judgment was entered, a case went to trial, or a summary
judgment was entered. Defendants did not cite to a case as to what is proper or
improper at the pleading stage.

Ground 2 – Failing to Provide a Physical
Address

Defendants
also point to the portion of § 1161(2) that requires the three-day notice to
state “the name, telephone number, and address of the person to whom the rent
payment shall be made.”

Defendants argue that since the three-day notice does
not provide a physical address of the person to whom rent payment shall be
made, the Complaint is subject to demurrer.

Here, the three-day notice stated, “You must contact
Lessor’s agent, Mr. Andy Ea on or before the expiration of the three day period
to arrange payment and/or an inspection of the Premises and to deliver
possession of the Premises. You may contact Mr. Ea at: Email:
tipirllc@gmail.com.” (Compl. Ex. 2.)

Defendants appear to be correct that the three-day
notice does not comply with § 1161(2) because a physical address and telephone
number are not provided. Defendants cite Foster v. Williams (2014) 229
Cal.App.4th Supp. 9.

Ground 3 – The Action is
Premature

Defendants
argue that the instant action is premature. Defendants base this argument on
the fact that a 30-day notice to vacate was served on March 7, 2024, and since
this Complaint was filed on March 13, 2024, the 30 days had not passed and is
therefore preemptive because 30 days from March 7, 2024 would have been April
6, 2024.

In support of this
argument, Defendants cite to Lamanna v. Vognar (1993) 17 Cal.App.4th
Supp. 4. In Lamanna, the Appellate Department indicated that a case was
premature because it was filed on May 26 and it could not have been filed until
May 27. However, Lamanna did not deal with the 30-day notice to vacate. Lamanna
dealt with whether a case was premature based on the 3-day notice to pay or
quit. Lamanna discusses how the three-day period is calculated in UD
cases. Here, the three-day notice was allegedly served on March 7, 2024. Under Lamanna,
the 3 days would have expired at the end of the day on March 12, 2024, and this
action was filed on March 13, 2024. Therefore, under Lamanna, the action
was not premature based on the 3-day notice. Whether Defendants can apply Lamanna
to the 30-day notice to vacate is unclear because Defendants do not cite to
any authority that the same rule applies to the 30-day notice.

TENTATIVE RULING
to BOTH DEMURRERS

As to Defendant Top Auto
Parts, Inc.’s demurrer, the Court’s tentative is to GRANT the demurrer.

“A valid three-day pay
rent or quit notice is a prerequisite to an unlawful detainer action.
[Citations.] Because of the summary nature of an unlawful detainer action, a
notice is valid only if the lessor strictly complies with the statutorily
mandated notice requirements. [Citation.]” (Foster v. Williams (2014)
229 Cal.App.4th Supp. 9, 15 citing Bevill v. Zoura (1994) 27 Cal.App.4th
694, 697.) A judgment must be reversed when it is based on a three-day notice
which lacks the information required by Code of Civil Procedure section 1161,
subdivision (2). (Foster v. Williams (2014) 229 Cal.App.4th Supp. 9, 15.)

Although Foster is
a case that went to trial, on the day set for trial, defendant made an oral
motion arguing the three-day notice was defective because it included a web
address instead of a physical address. While the trial court denied the motion,
Defendant subsequently filed a brief in support of a motion for judgment
pursuant to CCP § 631.8, arguing the notice was defective because of failure to
provide the required address. It appears as if the trial proceeded, and
afterwards the court denied defendant’s CCP § 631.8 motion for judgment.

On appeal, the Appellate
Division explained:

Defendant contends a de
novo standard of review is appropriate because he made an oral motion for
judgment on the pleadings when he argued on the day set for trial that the
three-day notice to pay rent or quit was defective. Plaintiff disputes that
defendant made a motion for judgment on the pleadings.

Resolution of whether or
not defendant made a motion for judgment on the pleadings would not alter the
standard and scope of review in this case. The facts here are undisputed; the
dispositive question is whether the three-day notice was legally sufficient.
“When an appeal presents a pure question of law, the appellate court exercises
its independent judgment, giving no deference to the trial court's ruling. When
the facts are not disputed, the effect or legal significance of those facts is
a question of law, and the appellate court is free to draw its own
conclusions, independent of the ruling by the trial court. [Citation.]” (Cohn
v. Corinthian Colleges, Inc. (2008) 169 Cal.App.4th 523, 527, 86
Cal.Rptr.3d 401; see International Assn. of Firefighters Local Union
230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1196, 125
Cal.Rptr.3d 832 [de novo standard used in reviewing ruling on motion for
judgment on the pleadings]; People ex rel. Dept. of Motor Vehicles v.
Cars 4 Causes (2006) 139 Cal.App.4th 1006, 1012, 43 Cal.Rptr.3d
513 [in reviewing a judgment following a Code Civ. Proc., §
631.8 motion, “we are not bound by a trial court's interpretation of the
law and independently review the application of the law to undisputed facts”].)

(Foster v. Williams (2014)
229 Cal.App.4th Supp. 9, 13-14.)

Here, the 3-day notice is
defective because it did not comply with § 1161(2): the notice did not include
the telephone number or the physical address of the person to whom the rent
payment shall be made.

The Court will hear
argument regarding amendment, though the Court’s tentative is to DENY leave to
amend the Complaint as to Defendant Top Parts, Inc.

As to Defendant Jun Xu,
it appears as if the granting of Xu’s motion to quash renders the demurrer
moot.  The Court will hear from the
parties whether the Demurrer should be sustained as to Defendant Xu.