Judge: Michael Shultz, Case: 22CMUD00505, Date: 2022-10-28 Tentative Ruling
Case Number: 22CMUD00505 Hearing Date: October 28, 2022 Dept: A
22CMUD00505
San Pedro Mo, LLC v. Jennifer Marie Trujillo Sampogna
[TENTATIVE] ORDER
I.
BACKGROUND FACTS
This is an unlawful detainer
action arising from Defendant’s lease of commercial real property. On March 19,
2022, Plaintiff served Defendant with a three-day notice to perform covenant or
quit based on Defendant’s alleged violation of the lease agreement by operating
a cannabis-related operation.
On July 12, 2022, Defendant filed
this motion to quash service of summons and complaint on grounds Plaintiff
deprived Defendant of the full three-day period to perform or quit. The
complaint alleges that the three-day notice was left at the premises on March
19, 2022, and that it expired on March 22, 2022. Defendant argues that
Plaintiff improperly calculated the period of notice by failing to exclude
weekends and holidays. The notice period actually expired on March 24, 2022. Therefore, the three-day notice cannot support
a claim for unlawful detainer.
The court initially called this matter
for hearing on August 17, 2022, as the parties were discussing settlement. The
court continued the hearing to October 28, 2022. Plaintiff did not file an
opposition.
II.
DISCUSSION
Defendant
can move to quash service of summons based on the court’s lack of jurisdiction
over Defendant. Code Civ. Proc., § 418.10, subd. (a)(1). Plaintiff bears 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.
Defendant’s motion does not
address jurisdictional defects in the summons or service of process but rather
that the three-day notice is defective. 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.
Defendant’s 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.
Here, Defendant has not identified
a defect with the summons or service of process which are relevant to the
court’s jurisdiction over Defendant. Defendant argues that Plaintiff improperly
calculated the three-day notice period, which challenges the truth of
the allegation that the notice period expired on March 22, 2022. Complaint, ¶
9.b. 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."].
Accordingly, Defendant’s motion to
quash is DENIED. Defendant is ordered to plead within five days. Code Civ. Proc., § 1167.4.