Borsuk v. Appellate Division of Superior Court
195 Cal. Rptr. 3d 581
Cal. Ct. App.2015Background
- Tenant Sofia Borsuk rented an apartment and landlord LA Hillcreste filed an unlawful detainer for nonpayment of March rent after serving a three-day notice to pay or quit dated March 5, 2015.
- Landlord's proof of service stated the notice was posted on the premises because no one of suitable age or discretion was found; tenant says she was never personally served and husband later found an unmarked envelope containing the notice.
- Tenant moved to quash service of the summons, arguing the court lacked jurisdiction because the three-day notice was not properly served; the trial court denied the motion.
- The Appellate Division granted writ relief, holding a motion to quash was the proper vehicle to raise the defective three-day notice; one judge concurred but suggested Delta should be revisited.
- California Court of Appeal (transferred) reviewed whether a motion to quash under Code Civ. Proc. § 418.10 may be used to challenge alleged defective service of the three-day notice in an unlawful detainer action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May a tenant use a motion to quash the summons to contest alleged defective service of the three-day notice in an unlawful detainer? | Borsuk: service of the three-day notice is jurisdictional; defective notice means court lacks jurisdiction so motion to quash is proper. | LA Hillcreste / Court: three-day notice is an element of the cause of action, not what confers personal jurisdiction; personal jurisdiction is conferred by service of the summons and complaint. | Motion to quash is not the proper vehicle; tenant cannot use §418.10 to challenge the merits/factual service of the three-day notice. |
| Does Delta Imports control and permit motions to quash to contest notice-service defects? | Borsuk relied on Delta to support quash remedy. | Court: Delta misstated law and overbroadly expanded motion-to-quash scope beyond jurisdictional issues. | Court rejects Delta's broad rule and limits its precedential reach to its facts. |
| Is service of the three-day notice a jurisdictional prerequisite to suit? | Borsuk: statutory notice requirements are foundational and akin to jurisdictional facts. | Court: notice is an essential element of unlawful detainer but not the basis for personal jurisdiction. | Three-day notice is an element to be alleged/proved, not what confers personal jurisdiction. |
| If not quash, how may tenant challenge defective notice? | — | Court: procedural alternatives exist. | Tenant may raise facial defects by demurrer or motion to strike, and factual challenges by trial or summary judgment; §418.10(e) preserves special-appearance protections. |
Key Cases Cited
- Delta Imports, Inc. v. Municipal Court, 146 Cal.App.3d 1033 (Delta held a motion to quash could challenge an unlawful detainer complaint lacking notice allegations)
- Palm Property Investments, LLC v. Yadegar, 194 Cal.App.4th 1419 (three-day notice is an essential prerequisite and must be alleged and proved)
- Liebovich v. Shahrokhkhany, 56 Cal.App.4th 511 (strict compliance with three-day notice requirements is required)
- Lacrabere v. Wise, 141 Cal. 554 (three-day notice must be alleged in complaint and, if controverted, proved at trial)
- Engebretson & Co. v. Harrison, 125 Cal.App.3d 436 (service of summons is what confers personal jurisdiction)
- Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc., 185 Cal.App.4th 744 (unlawful detainer is a summary proceeding requiring strict compliance with notice rules)
- Kroopf v. Guffey, 183 Cal.App.3d 1351 (motion to quash is limited to jurisdictional issues and does not decide merits)