Judge: George F. Bird, Jr., Case: 22CMCV00542, Date: 2023-03-07 Tentative Ruling

Case Number: 22CMCV00542    Hearing Date: March 7, 2023    Dept: B

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT

I.       BACKGROUND

            Plaintiff Tustin Springs, LLC (“Plaintiff”) alleges that Defendant Desiree Mejia (“Defendant”) entered into a written commercial lease agreement with Plaintiff for a 24-month tenancy at a property located at 1601 E. Imperial Highway, Unit C, Los Angeles, CA 90059 (the “Property”).  (Complaint (“Compl.”), ¶¶ 3, 6.) Plaintiff alleges they served Defendant with a 10-day notice to perform covenant or quit. (Compl., ¶ 9(a).) Plaintiff alleges that Defendant failed to comply with the notice by October 31, 2022. (Compl., ¶ 9(b).) 

II.       MOTION TO QUASH SERVICE OF SUMMONS

A.    Motion filed March 1, 2023.

            Defendant alleges that the five-day summons issued in this case is invalid and cannot confer jurisdiction upon Defendant because the underlying Complaint is defective and fails to state a cause of action for unlawful detainer. Specifically, Defendant alleges that the Complaint fails to allege that Defendant was properly served with the 10-day notice to perform covenant or quit.

B.     Opposition filed March 1, 2023.

            The Opposition, filed as Opposition TO MOTION TO STRIKE, points to the allegations in the Complaint to demonstrate that service is properly alleged to support an unlawful detainer action.

III.       LEGAL STANDARDS

In an unlawful detainer action, “[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." (Delta Imports, Inc v. Municipal Court (1983) 146 Cal.App.3d 1033, 1036.)

As Defendant observes, Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, while critical of Delta, does not preclude Defendant from challenging the facial validity of the complaint by way of a motion to quash. Ultimately, Borsuk determined that Delta did not apply because the facts in Delta were distinguishable, and its holding was “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, 194 Cal.Rptr. 685.) It was thus defective on its face because it contained “none of the required allegations regarding notice.” (Id. at 616.) In Borsuk, "there is no dispute that the unlawful detainer complaint is valid on its face. The complaint is a Judicial Council form, and the boxes are checked indicating that the requisite three-day notice was served in compliance with the statutory scheme." (Ibid.)  

Therefore, in Stancil v. Superior Court, 11 Cal.5th 381, the California Supreme Court agreed that in the context of an unlawful detainer action, “the motion to quash remains a limited procedural tool appropriate where the court lacks personal jurisdiction because the statutory requirements for service of process are not fulfilled, or the summons is defective. (§§ 410.50, 412.20; Honda Motor Co., supra, 10 Cal.App.4th at p. 1048, 12 Cal.Rptr.2d 861.) A defendant may not use a motion to quash service of summons under section 418.10, subdivision (a)(1) to contest any conceivable defect or the merits of the allegations contained in an unlawful detainer complaint. A defendant may instead make use of other motions: a demurrer, motion to strike, or answer.” (Ibid.)  

The court further concluded that “a defendant may file a motion to quash under section 418.10, subdivision (a)(1) for lack of personal jurisdiction where the unlawful detainer five-day summons is defective because it is not supported by the accompanying complaint. Personal jurisdiction is conferred only where the statutory requirements for service of process are fulfilled, so an unlawful detainer defendant may use a motion to quash a defective summons." (Id. at pp. 396-397.)

IV.       DISCUSSION

            A complaint in an unlawful detainer action must allege compliance with the notice requirements of Code of Civil Procedure section 1161. Plaintiff clarifies in the Opposition that Defendant has violated the terms of the lease by selling marijuana on the commercial premises while the lease limits use of the Property to a women’s boutique. Because the alleged breach by Defendant is violation of the lease terms, Plaintiff was required to provide Defendant three-days’ notice to quit. (Code Civ. Proc., § 1161, subd. (3).) Code of Civil Procedure section 1162 governs methods of service of the required notice on commercial tenants. In this case, the Complaint alleges that the notice was served by “giving a copy to a person found residing at the premises AND mailing a copy to defendant at the premises on (date): 10/19/2022.” (Compl., ¶ 10(a)(3).)

            Under Code of Civil Procedure section 1162, Plaintiff may properly serve notice “If he or she is absent from his or her place of residence, and from his or her usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his or her place of residence” or “If such place of residence and business cannot be ascertained, or a person of suitable age or discretion there can not be found, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated.” (Code Civ. Proc., § 1162, subds. (a)(2)-(a)(3).)

            Plaintiffs allege that “defendant's residence and usual place of business cannot be ascertained,” thus Plaintiff may not serve Defendant simply by leaving a copy with some person of suitable age and discretion and sending a copy through the mail. (Compl., ¶ 10(a)(3)(a).) Because the residence and usual place of business cannot be ascertained, Plaintiff must serve by affixing a copy in a conspicuous place on the property and delivering a copy to a person residing there and sending a copy through the mail. (Code Civ. Proc.,  § 1162, subd. (a)(3).) Plaintiff does not allege that a copy of the notice was posted on the Property.

            Because the Complaint fails to allege facts sufficient to support a cause of action for unlawful detainer by providing proper notice, the five-day summons is defective, and this Court does not have jurisdiction over Defendant.

V.       CONCLUSION

            This Motion to Quash Service of Summons is GRANTED.

Dated: March 7, 2023                                                 __________________________________

                                                                                                Judge of the Superior Court