Judge: Michael Shultz, Case: 22CMCV00749, Date: 2023-01-10 Tentative Ruling
Case Number: 22CMCV00749 Hearing Date: January 10, 2023 Dept: A
22CMCV00749 Hadi Farid etc. v. Aquasea, Inc., et al.
[TENTATIVE] ORDER
I.
BACKGROUND
The
complaint for unlawful, filed on December 7, 2022, alleges that Aquasea, Inc.(Defendant)
leased commercial real property from Plaintiff, Aqua Investments Group, LLC
(AIG) pursuant to a written lease agreement. The lease expired by its own terms
on February 1, 2022, and has not been legally extended or renewed. Defendants
allegedly failed to vacate the premises.
II.
ARGUMENTS
Defendants
argue that service of the summons and complaint is invalid because it is based
on a five-day notice to pay rent or quit but the complaint fails to make the
necessary allegations to show that Defendants are guilty of unlawful detainer. Plaintiffs
have continued to accept rent, and therefore, the tenancy is currently
month-to-month. There are no allegations that notice to pay rent or quit was
served. Plaintiff can use a Delta motion to challenge the validity of summons
when the complaint is invalid on its face.
In
opposition, Plaintiffs contend that a motion to quash is not appropriate to
challenge the truth of the allegations in the unlawful detainer complaint or to
litigate its merits.
The
Court’s docket does not reflect that Defendants filed a reply brief.
III.
DISCUSSION
Defendants
can move to quash service of summons based on the court’s lack of jurisdiction
over Defendants. Code Civ. Proc., § 418.10, subd. (a)(1). Plaintiffs bear the
burden of proving by a preponderance of evidence that "all necessary
jurisdictional criteria are met." Ziller Electronics Lab GmbH v. Superior
Court (1988) 206 Cal.App.3d 1222, 1233; Dill v. Berquist Construction
Co. (1994) 24 Cal.App.4th 1426, 1439-1440.
Defendants’ motion does not
address jurisdictional defects in the summons or service of process but rather
that the complaint fails to allege service of notice to pay rent or quit. The
California Supreme Court stated 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.” Stancil v. Superior Court (2021) 11 Cal.5th 381, 396.
Defendants argue that the
complaint fails to state a cause of action because it does not allege that
Defendants were served with a notice to pay rent or quit. Failure to state a
claim is not a basis for a motion to quash.
Defendants’ reliance on Greene v. Municipal Court (1975) 51 Cal.App.3d 446 is misplaced. The summons in Greene was fatally defective
because it required a response within five days pursuant to Code Civ. Proc., § 1167 governing
unlawful detainer actions, when the complaint did not allege a claim for
unlawful detainer. Greene at 451. Therefore, the summons was defective because
it improperly shortened Defendant’s time to plead, which would otherwise have
been 30 days. Greene at 452.
Delta Imports, Inc v. Municipal Court (1983) 146 Cal.App.3d
1033 is equally inapposite. There, the Plaintiff served a five-day
unlawful detainer summons, however, the court observed that where “the
plaintiff claims the defendant breached covenants in the lease, the complaint
must allege compliance with the notice requirements of Code of Civil
Procedure, section 1161(3). (Zucco v. Farullo (1918) 37 Cal.App.
562, 568, 174 P. 929.) At minimum this requires allegations that the defendant
was served with a written notice, (ibid.), specifying the
alleged breach, (Feder v. Wreden Packing & Provision Co., Inc. (1928)
89 Cal.App. 665, 671, 265 P. 386) and unequivocally demanding possession within
three days of service of the notice." Delta Imports at 1036. Delta
ultimately concluded that the complaint was not for unlawful detainer, and
therefore, could not serves as a basis for shortening Defendant’s time to
plead. Stancil, supra at 399.
Code of Civil Procedure section
418.10 authorizes a motion to quash only where the summons is improper, or the
service of process is defective. Here, Defendants have not identified a defect
with the summons or service of process which are relevant to the court’s
jurisdiction over Defendants. Defendants argue that Plaintiffs did not allege
it gave notice to pay rent or quit at all, which is required to support a claim
for unlawful detainer. This is not a proper basis for a motion to quash. Stancil at 396 ["We
find no support in the Unlawful Detainer Act for Stancil's broad assertion that
a motion to quash service of summons affords a defendant a means through which
to challenge any conceivable defect on the face of an unlawful detainer
complaint, let alone the veracity of the plaintiff's allegations."].
Additionally, Defendants are
disputing the allegations of the complaint, contending they were entitled to a
three-day notice after default in the payment of rent. Motion, 9:3-6. However,
Plaintiffs allege that Plaintiffs demanded possession based on expiration of a
fixed-lease term. Complaint ¶ 15. Notice is not required if the action is based
on the expiration of a fixed-term tenancy.
Code Civ. Proc., § 1161, subd. 1.
Defendants’ contention that Plaintiffs have continued to accept rent, and
therefore, the tenancy is now month-to-month is an attempt to dispute the
allegations of the complaint, which is also an improper basis for a motion to
quash. Motion, 3:17-21.
IV.
CONCLUSION
Accordingly, Defendants’ motion to
quash is DENIED. Defendants are ordered to respond within five days. Code Civ. Proc., § 1167.4.