Division Four Disagrees with Delta Imports: Could Borsuk Lead to the Death of the Delta Motion?

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“The question is whether the tenant may challenge the landlord’s alleged failure to comply with this requirement by moving to quash service of summons under section 418.10. We conclude that the tenant may not, and in doing so we disagree with the leading case on the point, Delta [Imports v. Municipal Court].”

On November 23, 2015, Division Four of the Second Appellate District interpreted a long-standing doctrinal procedure for attacking an unlawful detainer complaint: Borsuk v. Appellate Division of the Superior Court of Los Angeles County (2015) 242 Cal.App.4th 607 has the potential to eliminate the “Delta Motion” and change how unlawful detainer actions are litigated.

Previously, in July of 2015, the Appellate Division for the Los Angeles Superior Court reviewed the decision of the trial court, holding, in a published opinion, that the failure of a landlord to properly serve a three-day notice to pay rent or quit justified the quashing of service of an unlawful detainer five-day summons. That decision – Borsuk v. Superior Court – followed established case law. A cause of action for unlawful detainer based on a notice of termination must plead the manner of service of the notice. Therefore, want of these allegations creates a facially-defective complaint. And, where unlawful detainer is the only cause of action that can proceed on its unique five-day summons, defeating the cause of action defeats the summons underlying the cause of action as well.

This is the rule of Delta Imports, Inc. v. Municipal Court, which decided for the first time in 1983 that a motion to quash the unlawful detainer summons was the proper vehicle to raise this challenge. Division 7 of the Second District Court of Appeals crafted this doctrinal device, reasoning that bringing a demurrer would defeat the point of raising the challenge, as a demurrer is a general appearance and the defendant would thereby submit to the jurisdiction of the court.

More than three decades have passed, and Delta has gone undisturbed, its rationale being neither affirmed nor rejected by the California Supreme Court (with only a passing reference in Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal. 4th 1028, acknowledging its existence while explicitly declining to comment on its wisdom).

And, despite Delta’s providing such an unusual doctrinal device, there has not been much elaboration by the California Courts of Appeals either. The most significant addition to the doctrine came from the Appellate Division of Marin County, where the court in Parsons v. Superior Court (2007) 149 Cal. App. 4th Supp. 1 acknowledged that a movant in a Delta Motion (as with a regular motion to quash), could refer to extrinsic evidence to challenge jurisdictional facts. (While this is an inescapable conclusion about what is properly before the court on a motion to quash, prima facie challenges by general demurrer do not allow extrinsic evidence.)

Parsons highlighted the inherent tension between the Delta Motion and a general demurrer in an unlawful detainer action, which tension simply manifests the interplay between the general-purpose thirty-day summons and the unlawful detainer five-day summons. Unlawful detainer – and only that cause of action – may stand on the foundation of the five-day summons, so the essential allegations of its prima facie case are necessarily jurisdictional facts. The need to produce this level of evidence at the pleadings stage has consistently led to what the Appellate Division in Borsuk referred to as “mini trials”, which have frustrated the legislative intent of “promptly bring[ing] unlawful detainer actions to fruition”.

While Delta has marshaled spare support from other appellate courts over the years, it has nonetheless been the law of the land for trial courts and appellate divisions. As the California Supreme Court made clear in Auto Equity Sales, Inc. v. Superior Court of Santa Clara Cty. (1962) 57 Cal. 2d 450, 455, “Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court”.

However, this is not the case for Courts of Appeal. “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. Further, inferior trial courts and appellate decisions are not even required to follow decisions from the Courts of Appeal in a split of authority, and this “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.

And so Delta Imports is still very much up in the air following Division Four’s interpretation of a Division Seven opinion. The Borsuk opinion itself can be read as a response from Division Four to an open letter from Presiding Judge Kumar of the Appellate Division of the Superior Court of Los Angeles, who concurred in the opinion from which Borsuk was appealed, but added that, if he were writing the opinion, it would “include a suggestion that a higher court revisit the issue resolved by currently binding authority – Delta”.

The higher court answered, leading to a split of authority in the Second Appellate District and the possibility that the California Supreme Court may finally take up the Delta Doctrine for analysis. The Delta Motion has seen a lot of abuse over the years (always used as a method to test the entire case from the pleadings stage, but often also used to stall the case by seeking writ review following denial, adding months to the unlawful detainer “summary proceeding”). Nonetheless, Borsuk will make a poor adversary for Delta.

In rebuking the rationale of Delta, Division Four repeatedly and fundamentally misunderstood Delta and Parsons as suggesting that the service of a three-day notice confers personal jurisdiction over the defendant on the basis that service of a proper notice had been considered a “jurisdictional fact”. Nothing in either opinion urges this reading. (Note that a tenant is not even a “defendant” at the time of service of the notice, assuming this title only after a summons is issued.) Those opinions merely characterized these allegations as “jurisdictional”, because their existence supports a claim for unlawful detainer, while their absence would frustrate the issuance of a five-day summons.

The court compounded this misunderstanding by explaining that, “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”.

Certainly, if a summons and complaint are properly served, personal jurisdiction is obviously established. But “proper service” is a legal conclusion – one that is rendered following a ruling on a motion to quash. The difference between a regular motion to quash and a Delta motion to quash is simply the difference between moving to quash service and moving to quash the summons itself. “Proper service” for unlawful detainer summons – by the reasoning of Delta – must therefore be properly served and legally sufficient. To say that personal jurisdiction is conferred before either of these standards can be contested or established is tantamount to saying that special appearances should not be allowed.

Finally, Division Four takes an interesting observation about subsequent changes in law and completely turns it on its head. Since Delta was decided in 1983, the motion to quash statute was amended to allow a defendant to move to quash service (via special appearance), while simultaneously demurring to the cause of action – and to do this without waiving the jurisdictional challenge of the motion to quash. Borsuk refers to Delta’s reasoning that a general demurrer to an unlawful detainer complaint would frustrate the challenge, by defeating the basis for jurisdiction but nonetheless effecting a general appearance in the action. Borsuk reasons that this amendment proves the Delta Motion is now unnecessary.

However, this analysis misunderstands the application of the amendment: It now allows a defendant to demurrer while moving to quash, while preserveing the special appearance. But it does not follow that a defendant should no longer be moving to quash in the first place, or else there is no special appearance to preserve. (In other words, for this rule to even apply, the defendant is necessarily moving to quash – the amendment just allows them to also demurrer.) So there is no utility in saying that these arguments should migrate to the demurrer briefing. (There may be something to the view that extrinsic evidence via Parsons should not be allowed in a demurrer-like pleading attack, but Division Four didn’t make this point, and, in any event, it would probably require legislative revisions). On the other hand, if Borsuk’s reasoning is that the “Delta Motion” challenge should be made by demurrer instead of motion to quash, then this is necessarily a general appearance, so the discussion about the amendment preserving the special appearance is irrelevant.

Borsuk channels a chorus of frustration with a broken doctrinal procedure into a misdirected argument. The Delta Motion has allowed defendants to take a sensible tool to challenge sloppy pleading and abuse it to frustrate the speedy nature of the unlawful detainer remedy. However, if this is the strongest doctrinal counter-argument, the “fix” may need to be legislative. (For instance, an amendment that removed the mechanism for staying proceedings pending a petition for writ of mandate on the denial of a Delta Motion might strike a balance between these competing interests.) In seeking the intervention of a higher court to undo Delta, Presiding Judge Kumar may have instead set in motion the cementing of the procedure. He may have been better off addressing his request to the California Legislature.