California Supreme Court Grants Review To Consider Propriety of “Delta Motion” Following Split of Authority

The California Supreme Court has granted review in the case Stancil v. Superior Court (Redwood City), to finally weigh in on the infamous Delta Motion to quash service of summons.

In 1983, the Second District Court of Appeal held that a motion to quash service of summons was an appropriate way to challenge the ability of a complaint for unlawful detainer to state a cause of action. The case was Delta Imports v. Municipal Court (Missimer), which led to the eponymous “Delta Motion”. As the reasoning goes, an unlawful detainer case receives a unique five-day summons (rather than the conventional thirty-day summons). Defendants generally demurrer to a complaint for failure to state a cause of action, but ordinarily, the plaintiff survives general demurrer if the complaint states a cause of action for something, even if they got the label wrong. But if a complaint fails to state a cause of action for unlawful detainer, it can’t be amended to state something else, as the cause of action is created by service of the notice.

That’s all well and good, but a motion to quash challenges jurisdiction, and there are no jurisdictional facts at issue because a plaintiff “failed to state” something, provided the defendant was properly served with a summons. And while courts have some flexibility in ruling on an improperly labeled motion, the difference between a motion to quash and a demurrer is significant. Demurrers essentially test what’s within the four corners of a complaint, but a motion to quash is an evidentiary motion. And motions to quash in unlawful detainer cases can be heard on as little as three days’ notice. So, essentially, these motions became vehicles to have mini trials on the final merits of a case, but before a plaintiff could serve discovery. Then, many tenant practitioners routinely petitioned for writ of mandate, ostensibly to review the denial, but practically as a method of stalling a “summary proceeding” for many months. The doctrine was legally fascinating but it allowed procedural abuse.

In 2015, the Second District revisited its reasoning in the case Borsuk v. Appellate Division, disapproving of the rationale in Delta Imports and opening the rule for interpretation. After all, “A decision of a court of appeal is not binding in the courts of appeal. One district or division may refuse to follow a prior decision of a different district or division.” McCallum v. McCallum (1987) 190 Cal. App. 3d 308, 316 FN.4. In a split of authority, the “dilemma will endure until the Supreme Court resolves the conflict, or the Legislature clears up the uncertainty by legislation”. McCallum, supra, 190 Cal. App. 3d at 316 FN.4.


Dr. Leevil, LLC v. Westlake Health Care Ctr. (2018): Title Must Be “Duly Perfected” Before Service of Unlawful Detainer Three-Day Notice, Despite Retroactive Perfection of Title Under Nonjudicial Foreclosure Statutes

california state seal

In Dr. Leevil, LLC v. Westlake Health Care Ctr., a property owner leased its property to a skilled nursing facility and later obtained a secured loan. It defaulted. Dr. Leevil, LLC purchased the defaulted loan and initiated a nonjudicial foreclosure sale, ultimately buying the property at the trustee’s sale. Dr. Leevil, LLC served a three day notice to quit the next day, but did not record title for five more days.

Serving the notice before becoming “record owner” seems counterintuitive. However the nonjudicial foreclosure statutes arguably condoned the practice. Cal. Civ. Code § 2924h(c) states, “the trustee’s sale shall be deemed final upon the acceptance of the last and highest bid, and shall be deemed perfected as of 8 a.m. on the actual date of sale if the trustee’s deed is recorded within 15 calendar days after the sale, or the next business day following the 15th day if the county recorder in which the property is located is closed on the 15th day.”

The unlawful detainer statutes refer to the nonjudicial foreclosure statutes, in setting forth cases of post-foreclosure evictions. Applicable here, “a person who holds over and continues in possession of . . . real property after a three-day written notice to quit the property has been served . . . may be removed therefrom . . . Where the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by such person, or a person under whom such person claims, and the title under the sale has been duly perfected.” Cal. Code Civ. Proc., §1161a(b)(3).

In other words, Dr. Leevil, LLC believed it could serve the notice to quit first, because it was already the owner, and title could be (and ultimately was) retroactively perfected as of the actual purchase date. The Court of Appeal adopted this interpretation.
Continue reading “Dr. Leevil, LLC v. Westlake Health Care Ctr. (2018): Title Must Be “Duly Perfected” Before Service of Unlawful Detainer Three-Day Notice, Despite Retroactive Perfection of Title Under Nonjudicial Foreclosure Statutes”