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

Citation: Borsuk v. Appellate Division of Superior Court, 242 Cal. App. 4th 607 (2015)
Parent Document: Borsuk v. Appellate Division of Superior Court, 242 Cal. App. 4th 607 (2015)
Jurisdiction: California (state)
Effective Date: 2015-11-23
Original Source: https://www.courtlistener.com/opinion/3157363/borsuk-v-appellate-division-of-... ↗

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of a notice to pay or quit, that analysis does not withstand scrutiny. In Delta, the
unlawful detainer complaint failed to allege service of a notice to pay rent or quit.
In that context, the court rejected the notion that a tenant should demur to the
complaint rather than move to quash, reasoning: “A general demurrer only tests
whether the complaint states a cause of action for something even if it is on a
theory other than unlawful detainer. [Citations.] Moreover, if the defendant
appears in the action by filing a demurrer, he moots the very point [personal
jurisdiction] he is seeking to raise.” (146 Cal.App.3d at p. 1036.)
       This reasoning begs the question. If the landlord has properly served the
summons and unlawful detainer complaint, the court necessarily has acquired
personal jurisdiction over the tenant, regardless of whether the unlawful detainer
claim is joined with other claims and regardless of whether, as it did at the time of
Delta, the filing of a demurrer constituted a general appearance. Further, even if
Delta’s concern that filing a demurrer would moot the issue of personal
jurisdiction was valid when Delta was decided, that concern is now unfounded in
light of the 2002 amendment of section 418.10 to add subdivision (e). (See Air
Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 420.)5 Under

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