Hsieh v. Pederson

Filed 4/10/18 (transfer denied 5/8/18)

CERTIFIED FOR PUBLICATION APPELLATE DIVISION OF THE SUPERIOR COURT STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

ANDY HSIEH, ) No. BV 032412 ) Plaintiff and Appellant, ) Central Trial Court ) v. ) No. 17U04777 ) BURTON PEDERSON et al., ) ) Defendants and Respondents. ) OPINION )

APPEAL from a judgment of the Superior Court of Los Angeles County, Central Trial Court, Lisa K. Sepe-Wiesenfeld, Judge. Reversed. Allen R. King of the Law Office of Allen R. King, Los Angeles, for plaintiff and appellant Andy Hsieh. No appearance for defendants and respondents. * * *

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In this residential unlawful detainer matter, plaintiff Andy Hsieh timely appeals the judgment entered in favor of defendants Aaron Barrios and Jacqueline Mor after the trial court granted defendants’ motion for judgment on the pleadings. We find meritorious plaintiff’s contention that because he did not prematurely file the complaint, the trial court erred by granting defendants’ motion for judgment on the pleadings. BACKGROUND On April 22, 2017, plaintiff personally served defendants with a 14-day notice to pay rent or quit (notice)1 the premises located at 412 E. 65th Street in Los Angeles, California 90003 (the premises). The notice indicated defendants owed past due rent in the amount of $8,400 for the months of January through April 2017, and instructed defendants how to make payment to the owner. The notice identified the owner as Andy Hsieh and Nicole Hsieh. The pertinent parts of the notice were as follows: “YOU ARE HEREBY REQUIRED within FOURTEEN (14) days after service on you of this notice to pay the . . . rent in full to the owner of the premises, OR to QUIT AND SURRENDER POSSESSION OF THE PREMISES. “¶. . .¶ “Make Check Payable to: Andy Hsieh “Pay Rent to: Andy Hsiesh “Address: 21725 Gateway Center Dr. Diamond Bar, CA 91765 “Phone: 909-860-6255” “Hours/Days available: 9am to 5:30pm Monday to Friday.” (Original underlining.) On May 10, 2017, plaintiff served defendants with an unlawful detainer complaint seeking restitution and possession of the premises. The pertinent allegations of the complaint were that defendants were served on April 22, 2017, with a 14-day notice to pay or quit, and failed to comply with the notice. A copy of the notice was attached to the complaint as an

1 As contained in the record on appeal, the notice is not accompanied by a proof of service.

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exhibit. On May 22, 2017, defendants filed their answer and raised as a defense that the notice was defective. On June 23, 2017, defendants filed a motion for judgment on the pleadings on the ground plaintiff did not comply with section 1161, subdivision (2),2 because he filed the complaint before expiration of the 14-day period stated in the notice. Defendants argued that because the notice required personal delivery to plaintiff at the given address from Monday through Friday, calculation of the 14-day period excluded weekends, such that their last day to pay the delinquent rent was Thursday, May 11, 2017. According to defendants, the May 10, 2017 complaint was filed on the 13th day, which was prior to expiration of the 14-day period, and failed to give them a “meaningful opportunity” to pay during the notice period. In his opposition, plaintiff argued that under section 1161, subdivision 2, he was only required to give defendants three days’ notice, and since the 14-day period exceeded the three-day minimum requirement, the motion should be denied. He further argued that Saturdays and Sundays were to be counted in calculating the notice period, and if the 14th day fell on a weekend, then the rent was due the following Monday. On June 26, 2017, the cause was called for hearing on defendants’ motion. The court heard argument and took the matter under submission. On June 30, 2017, the court issued a three-page ruling granting defendants’ motion. The court found that the requirement in the notice “to pay only Monday through Friday limited the tenant’s ability to pay within the full 14 day period and that the complaint was filed prematurely on May 10th, as the 14th [day] would have been May 11th.” On the same date, the court entered judgment in favor of defendants and against plaintiff. This timely appeal followed. DISCUSSION Plaintiff contends that the notice complied with section 1161, subdivision 2; that the notice allowed for tender of payment either in person or by mail; and that the complaint was filed after the full 14-day notice period expired such that it was not premature. We agree.