Judge: Michael Small, Case: 24STCV26911, Date: 2025-01-16 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 24STCV26911    Hearing Date: January 16, 2025    Dept: 57

Pending before the Court is Defendant's demurrer to the Plaintiffs' complaint in this unlawful detainer action.    The  Court is overruling the demurrer.

The demurrer rests on the proposition that the complaint is fatally detective because it alleges that the period of the five-day notice to quit the leased premises or pay the rent that Defendant owed that Plaintiffs served on Defendant expired on October 9, 2024 when, under the terms of the parties'  lease,  the earliest expiration date would have been October 10, 2024 and the latest would have been October 14, 2024.   Defendant is incorrect.   Plaintiffs personally served the five-day notice on the Defendant at the leased premises on October 2, 2024.  Paragraph 41 of the parties' lease provides that any notice to quit or pay rent that is personally served on Defendant is deemed personally delivered to the Defendant on the date the notice is personally delivered to any employee of the Defendant at the leased premises.  Plaintiffs calculated the five-day period from October 2, 2024 by using only business days and skipping the calendar days in the period that were a Saturday and Sunday.  Plaintiffs made this calculation in this manner based on Code of Civil Procedure Section 1161, which provides that in counting the expiration of notice periods in unlawful detainer actions, business days are used, not calendar days.  Five business days from the October 2, 2024 service date of the notice was October 9, 2024, just as the Plaintiffs' complaint alleges.  

Defendant's demurrer overlooks that the Plaintiffs personally served the five-day notice on Defendant on October 2, 2024.  It is true, as the demurrer notes, the Plaintiffs also served the notice on Defendant via two other methods that are permitted under the lease: via Federal Express and certified mail.  Defendants are correct that expiration of the five-day notice period would have been October 10, 2024 for the service via Federal Express and October 14, 2024 for the service by certified mail. The problem for the Defendant's reliance on these other methods of service is two-fold.  First, service of the notice via Federal Express and certified mail did not extend the expiration date of the notice  that also was personally served.  (Walters v. Meyers (1990) 226 Cal.App.3d Supp. 15, 19.)  Second, Plaintiffs did not initiate the unlawful detainer action and thereby act on the five-day notice until October 15, 2024, which is one day after the latest expiration date of the three possible dates (the date based on the certified mail notice).   Thus, Plaintiffs did not jump gun the prematurely and in contravention of the five-day notice period in suing Defendant.

The Court takes this opportunity to inform the parties that the calendar will be called at 10:45 today.  If that time does not work, the Court also is available at 1:30.  If Defendant wishes to submit on this tentative ruling, please check with the Clerk in Dept. 57 at the regular time of 8:30 and inform him of the decision to submit.   Apologies for any inconvenience.