Judge: Michael E. Whitaker, Case: 23SMCV03113, Date: 2023-10-26 Tentative Ruling

Case Number: 23SMCV03113    Hearing Date: October 26, 2023    Dept: 207

TENTATIVE RULING - NO. 1

MOTION

Defendants Emanuel Gomez and Juliana Medina, appearing in pro per, (“Defendants”) demur to Plaintiff 768 Ceres, LLC’s (“Plaintiff”) unlawful detainer complaint for failure to state a cause of action and for improper service of the three-day notice to pay or quit. 

Plaintiff opposes the demurrer.

ANALYSIS

1.      DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  Here, Defendants demur to Plaintiff’s unlawful detainer complaint on the grounds that it fails to state a cause of action and for improper service of the three-day notice to pay or quit. 

In support of the demurrer, Defendants argue the three-day notice is defective because (1) it fails to include the payment information required by Code of Civil Procedure section 1161, ¶ 2; (2) it overstates the amount of rent due; and (3) it was served before the rent was due.  Section 1161 provides, in relevant portion:

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.

The notice may be served at any time within one year after the rent becomes due.

A.    FAILURE TO INCLUDE PAYMENT INFORMATION

Defendants argue “The California legislature has determined that the payment information is just as important as the requirement that the amount of rent due be stated, and the statement that the rent or possession of the property must be demanded in the alternative.”  The only support Defendants provide is citation to Section 1161. 

Defendants’ contention is belied by the plain text of the cited statute, which requires only that the notice state “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[….]”  Further, as an alternative to providing the above information, the notice may instead include financial information where payment may be made (“or the number of an account in a financial institution into which the rental payment may be made[….]”).  (Code. Civ. Proc., § 1161, ¶ 2.) 

The notice to pay rent or quit provides that payment may be made to “Michael Chang” at a specific address and phone number that are listed, and indicates payments may be delivered “between the hours of 9:00 am and 5:00 pm Monday through Friday.”  (Ex. 2 to Complaint) (emphasis original.)

Thus, the Court finds that the notice is not defective for failure to provide the payment information.

B.     AMOUNT LISTED ON NOTICE & TIMING OF NOTICE

Defendants contend that the notice is defective because it overstates the amount of rent due and was served before the rent was due.  Disputes concerning the amount of rent due go beyond the four corners of the Complaint, and are factual questions to be resolved at later stages of the litigation. 

The Notice indicates that $15,600 in rent was overdue, as does the Complaint.  The Complaint further indicates that Defendants paid $5,200 in monthly rent.  Therefore, there is nothing on the face of the complaint that fails to state a claim. 

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Defendants’ Demurrer to the unlawful detainer complaint. 

Further, the Court orders Defendants to file an Answer to the Complaint on or before November 2, 2023. 

Plaintiff shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  October 26, 2023                                                  ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court

TENTATIVE RULING - NO. 2

MOTION

Specially appearing Defendants Katherine Taylor Kahn and Heather Lynn Ferguson (“Defendants”) move to quash service of the summons and unlawful detainer complaint on the basis that Plaintiff 768 Ceres, LLC (“Plaintiff”) did not obtain an order to post, prior to serving them by posting the summons and complaint on Defendants’ door. 

Plaintiff opposes, arguing (1) the motion to quash is untimely; and (2) Defendants were validly served by posting. 

LEGAL STANDARDS

For service on persons within California, generally, service of a summons and complaint must be done by personal service.  (Code Civ. Proc., § 415.10.)  However, with respect to unlawful detainer actions, “A summons in an action for unlawful detainer of real property may be served by posting if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in any manner specified in this article other than publication[….]”  (Code Civ. Proc., § 415.45, subd. (a).)  In such instances, “The court shall order the summons to be posted on the premises in a manner most likely to give actual notice to the party to be served and direct that a copy of the summons and of the complaint be forthwith mailed by certified mail to such party at his last known address.”  (Code Civ. Proc., § 415.45, subd. (b).)  “Service of summons in this manner is deemed complete on the 10th day after posting and mailing.”  (Code Civ. Proc., § 415.45, subd.  (c).)

ANALYSIS

Untimeliness

California Rules of Court, rule 3.1327(a) provides, “In an unlawful detainer action […], notice of a motion to quash service of summons on the ground of lack of jurisdiction or to stay or dismiss the action on the ground of inconvenient forum must be given in compliance with Code of Civil Procedure sections 1010.6 or 1013 and 1167.4.”

Sections 1010.6 and 1013 provide for extensions of time when service is made electronically or by mail, respectively.  Section 1167.4 provides, “Notwithstanding any other provision of law, in any action under this chapter [pertaining to summary proceedings for obtaining possession of real property]: (a) Where the defendant files a notice of motion [to quash service], the time for making the motion shall not be less than three days nor more than seven days after the filing of the notice.”

Here, Defendants filed the Motion to Quash on August 7, 2023, but set the hearing for October 26, 2023.  Thus, the hearing date far exceeds the time allowed by Section 1167.4.

Service

Even if the hearing were timely scheduled, Defendants’ motion also fails on the merits.  Defendants contend that service by posting on July 28, 2023 was improper because Plaintiff failed to request and obtain an order to post.  Plaintiff did request and obtain an order to post on July 27, 2023.  Attached to the request was a declaration of diligence, indicating that Plaintiff attempted to have Defendants personally served on July 14 at 8:20 pm; on July 15 at 7:50 am; and on July 19 at 3:50 pm, prior to resorting to posting.

In opposition to the motion to quash, Plaintiff attached a proof of service, indicating that Defendants were served by posting (and certified mail receipts indicating they were also mailed) on July 28.  Defendants concede they were alerted to this action around 4:30 p.m. on July 28, when they discovered the summons and complaint posted on their door.

CONCLUSION AND ORDER

Based upon the record, the Court finds that the service of the summons and complaint on Defendants was proper.  Consequently, the Court denies Defendants’ motion to quash service of the summons and complaint. 

Defendants shall file and serve a response to the complaint on or before November 2, 2023.

            Plaintiff shall provide notice of the Court’s ruling and file a proof of service regarding the same.   

DATED: October 26, 2023                                                     ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court