Friday, September 11, 2026
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Court of Appeal:
Lease Clause Cannot Enlarge Time for Serving U.D. Notice
Justices Reject Argument That One-Year Period Did Not Commence in January 2023 When Rent Was Skipped in Light of Contractual Provision That Any Payments Would Be Applied to Longest-Standing Obligation
By a MetNews Staff Writer
Div. Seven of the Court of Appeal for this district has rejected the contention of a lessor that although a tenant missed a rent payment for January 2023 and paid less than half of the amount due the following month, a three-day notice to quit or pay rent served on Feb. 12, 2025 was not invalidated by the one-year requirement in light of a lease provision that any payment that was made would be applied to the earliest ligation.
The tenant, Piong Bin Hong, doing business as Five Star Restaurant, resumed making full rent payments in March, 2023.
Justice Gail Ruderman Feuer authored the opinion reversing a judgment in favor of the lessor, Universal Shopping Plaza, for $65,989 in past-due rent and $123,111 in holdover damages.
Code of Civil Procedure §1161(2), relied upon by Hong in arguing that the notice 2025 notice was a nullity, provides:
“The notice may be served at any time within one year after the rent becomes due.”
Invoked by Universal was a lease provision saying:
“All payments received by Landlord from Tenant or any third party for the benefit of Tenant shall be applied to the oldest payment of obligation owed by Tenant to Landlord. No designation by Tenant, either in separate writing or on a check or money order, shall modify this clause or have any force or effect.”
Trial Judge’s View
Los Angeles Superior Court Judge Frank Tavelman, in awarding judgment to Universal, told Hong, who represented himself in the trial court, as on appeal:
“I understand your argument that, if there was missed rent, it was from prior months and was beyond the one-year statute. But under the terms of the lease that continued on a month-to-month basis, rent is applied to back rent first. And so for every payment you made, it was applied to the back rent first, which meant that you were missing a current payment.”
Judgment was entered on July 3, 2025, awarding monetary relief and possession of the premises, located in a mini-mall on West Valley Boulevard in San Gabriel. The eatery, now known as Five Star Seafood Restaurant, has relocated to the nearby San Gabriel Hilton.
Universal’s Brief
Defending Tavelman’s ruling, Universal pointed out in its brief on appeal that its witness Victoria Chiang testified at trial that payments made by Hong subsequent to February 2023 were applied in the manner specified in the lease. The brief, by Tiffany D. Truong of the Irvine firm of Kimball, Tirey & St. John LLP, adds:
“The court even inquired during Ms. Chiang’s testimony to confirm his understanding that as each payment was received, only a portion of the arrears were satisfied because payment was applied to an amount outstanding under the terms of the Lease….
“Ms. Chiang testified that for the balance owed in the Notice, the arrears began in January 2023, and Appellant was approximately one month behind in rent each month thereafter because payments received each month were applied to the oldest balances.”
Feuer’s Opinion
In her opinion reversing the judgment, Feuer said:
“Universal’s position, which the trial court adopted, is contrary to the plain meaning and intent of section 1161(2). Section 1161(2) requires a three-day notice be served ‘within one year after the rent becomes due,’ not on the date the landlord decides the lease has been breached under a contractual provision delaying for one month at a time any default in the nonpayment of rent. Further, the landlord’s interpretation of section 1161(2)’s one-year notice requirement is inconsistent with the Legislature intent in creating the summary unlawful detainer procedure to ensure fairness to the parties by preventing a landlord from sitting on its right, then at a later time forcing an eviction on a long-overdue rent payment.
“Precisely such unfairness occurred here: The evidence at trial showed that Hong paid his monthly rent for over two years before he was served with the three-day notice, and the unpaid rent demanded in the notice corresponded precisely with his initial nonpayment. Accordingly, the notice was void and cannot support the unlawful detainer judgment and award of holdover damages.”
Feuer, in a footnote, provided Universal with advice:
“Although Universal may not avail itself of the unlawful detainer proceedings and remedies, Universal is not without recourse: It may bring an action for breach of contract, provided it does so within the four-year statute of limitations under Civil Code section 337.”
The case is Universal Shopping Plaza v. Hong, B348490.
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