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

6
Cal.App.4th at p. 1425 [“‘A lessor must allege and prove proper service of the
requisite notice. [Citations.]’”]; Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10,
16 [“The basic elements of unlawful detainer for nonpayment of rent contained in
Code of Civil Procedure section 1161, subdivision 2, are (1) the tenant is in
possession of the premises; (2) that possession is without permission; (3) the tenant
is in default for nonpayment of rent; (4) the tenant has been properly served with a
written three-day notice; and (5) the default continues after the three-day notice
period has elapsed.”].) Those courts and treatises that have, in the wake of Delta,
described the service of the three-day notice as jurisdictional are incorrect. (See,
e.g., Parsons, supra, 149 Cal.App.4th at p. Supp. 7 [describing service of a proper
notice to quit as a jurisdictional fact alleged in the complaint]; Wiseman & Reese,
Cal. Practice Guide: Civil Procedure Before Trial, Claims & Defenses (The Rutter
Group 2015) ¶ 11:324 [citing Delta for proposition that unlawful detainer
complaint failing to allege compliance with notice requirement does not subject
defendant to court’s personal jurisdiction]; Eviction Defense Manual, supra,
§ 13.13A [describing the notice as a jurisdictional prerequisite, relying on Delta
and Parsons]; Landlord-Tenant Practice, supra, § 10.11 [“Because strict
compliance with the specifically prescribed notice conditions is a condition
precedent to bringing an unlawful detainer, lack of compliance with the
jurisdictional prerequisites is properly tested by a motion to quash.”].)
      Second, in approving the use of a motion to quash to challenge an unlawful
detainer complaint and service of a notice to pay or quit, Delta shunted aside the
limitations of a motion to quash under section 418.10. Section 418.10 provides
that a defendant may file a motion “[t]o quash service of summons on the ground
of lack of jurisdiction of the court over him or her.” (§ 418.10, subd. (a)(1), italics
added; see § 1167.4 [addressing filing deadlines for a defendant’s motion to quash