Metropolitan News-Enterprise


Thursday, July 30, 2015


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Judge Kumar Calls for Rexamination of Ruling in 1983 C.A. Case

Appellate Division Chief Says It Makes No Sense to Allow a Motion to Quash to Test Adequacy of Three-Day Notice to Quit


By a MetNews Staff Writer


The Appellate Division of the Los Angeles Superior Court has ruled that a judge, in an unlawful detainer case, failed to follow decisional law when he refused to consider the validity of service of a three-day “notice to quit” in response to a motion to quash the summons and complaint—but, a concurring judge asserted, the Court of Appeal opinion authorizing such a motion was incorrectly decided.

The decision which Los Angeles Superior Court Judge H. Jay Ford III was found by the panel to have misinterpreted is Delta Imports, Inc. v. Municipal Court (1983) 146 Cal.App.3d 1033. It was authored by Justice Earl Johnson Jr. (since retired).

There, a motion to quash a five-day summons was held to be proper where the complaint did not allege service of a written notice to quit.

In her majority opinion, filed July 22 and made public Monday, Judge Barbara R. Johnson pointed both to that case and to Parsons v. Superior Court (2007) 149 Cal.App.4th Supp. 1, where the Marin Superior Court Appellate Division held that a motion to quash may be utilized to challenge jurisdiction in an unlawful detainer case based on evidence showing inadequate notice.

Delta and Parsons “are in agreement,” Johnson wrote, “that a motion to quash is the proper vehicle to raise jurisdictional defects without making a general appearance.”

 Kumar Criticizes Delta

Presiding Judge Sanjay Kumar said in his concurring opinion that “service of a valid three-day notice is an element of an unlawful detainer action that must be proven by the lessor at trial.” Under Delta, he observed, such a notice has taken on the additional role of “a prerequisite to obtaining personal jurisdiction over the tenant.”

Kumar protested:

“[T]he failure to provide a proper three-day notice to the defendant prior to serving the unlawful detainer summons would not seem to render the summons defective and deprive the court of personal jurisdiction over the defendant. The Legislature has mandated the summons in an unlawful detainer action state that the defendant’s answer shall be filed in five days….In other words, in order to be valid, the unlawful detainer summons must state that an answer is required in five days. If the defendant was not properly served with the precedent three-day notice, the summons remains facially valid. As the three-day notice is an element of the unlawful detainer action, a challenge to it, like a challenge to any other element of the cause of action, should be directed to the legitimacy of the complaint, not the validity of the service of the summons.”

He went on to say:

“Nonetheless, Delta was decided by the Court of Appeal—a court superior to that of the appellate division. We are therefore obligated to follow Delta as, for purposes of unlawful detainer actions, it is directly on point and without contrary case law….But the uncertainty concerning the scope and ramifications of such a procedure will no doubt continue to confound trial judges and practitioners. The time may be right for a court higher than the appellate division to revisit the issue presented in Delta.”

‘Procedural Conundrums’

Kumar commented in a footnote:

“Apart from the questionable propriety of using a motion to quash to challenge the validity of the three-day unlawful detainer notice, there are procedural conundrums created by the Delta motion. Because a motion to quash can be supported by extrinsic evidence, the Delta motion opens the door to minitrials on the issue of whether there was a valid three-day notice. This runs contrary to the legislative intent to promptly bring unlawful detainer actions to fruition….In addition, should the trial court deny the motion on the ground that the three-day notice was indeed valid, the question becomes whether that ruling precludes the issue from being relitigated at trial. And, if such a ruling has preclusive implications, would the application of the preclusive bar deprive the tenant of his or her right to have a jury decide whether the element has been proven?”

The case is Bosuk v. Superior Court, LA Hillcreste Apartments, LLC, RPI, 2015 S.O.S. 3856.

It provides a rare instance where a non-attorney who was in pro per prevailed in an appellate case. Sofia Borsuk represented herself in the Appellate Division and is conducting her own defense in the underlying unlawful detainer action, pending in Santa Monica.

The party seeking her eviction is represented by Chris J. Evans of the downtown Los Angeles law firm of Kimball, Tirey & St. John, LLP.


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