Borsuk v. Appellate Division of Superior Court, 242 Cal. App. 4th 607 (2015)

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[“Delta’s broad language has created confusion and uncertainty among some
practitioners.”] (Eviction Defense Manual); id. § 13.3 [noting that although section
430.10, subd. (e) “includes the failure of a complaint to sufficiently state the cause
of action as a ground for demurrer,” Delta holds that “such a defect must be
attacked by a motion to quash rather than a demurrer . . . .”]; Cal. Landlord-Tenant
Practice (Cont.Ed.Bar 2d ed. 2015) § 10.20 [stating that Delta’s “language is
confusing”] (Landlord-Tenant Practice).) We find Delta’s language more than
merely confusing. Its broad declaration that a motion to quash is the proper way to
contest whether an unlawful detainer complaint states a cause of action, and to
challenge service of a notice to pay or quit, is not supportable.
       First, Delta apparently assumed, without expressly stating, that the court
obtains personal jurisdiction over the tenant through the landlord’s service of a
three-day notice to pay or quit. That is incorrect. Personal jurisdiction is conferred
by service on the tenant of the unlawful detainer summons and complaint. (See
Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 443 [“‘[S]ervice of
summons is not effective and the court does not acquire jurisdiction of the party
unless the statutory requirements for service of summons are met.’ [Citations.]”];
Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2015) ¶ 3:130 [the court acquires personal jurisdiction over a defendant “by
service of process in accordance with statutory and due process requirements”].)
       As compared to service of summons, by which the court acquires personal
jurisdiction, service of the three-day notice is merely an element of an unlawful
detainer cause of action that must be alleged and proven for the landlord to acquire
possession. (§ 1161, subd. 2; see also Lacrabere v. Wise (1904) 141 Cal. 554, 556
[“It is . . . essential to allege the service of [the three-day notice] in the complaint,
and, if controverted, prove it on the trial.”] (Lacrabere); Palm Property, supra, 194