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.
                                            *        *             *




                                                     1
       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.

                                                      2
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.


       2
           Unspecified statutory references are to the Code of Civil Procedure.

                                                      3
Standard of Review
       Our review of a judgment on the pleadings is de novo (People ex rel. Harris v. Pac
Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777), and issues of statutory interpretation
are questions of law that are likewise subject to our independent or de novo review. (Blaich v.
West Hollywood Rent Stabilization Dept. (2011) 195 Cal.App.4th 1171, 1175.) “‘A judgment
on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts
sufficient to state a cause of action. [Citation.] A motion for judgment on the pleadings is
equivalent to a demurrer and is governed by the same de novo standard of review.’ [Citation.]
‘All properly pleaded, material facts are deemed true, but not contentions, deductions, or
conclusions of fact or law. . . .’ [Citation.]” (People ex rel. Harris v. Pac Anchor
Transportation, Inc., supra, 59 Cal.4th at p. 777.) Because the complaint incorporated the
14-day notice to pay or quit, it is part of our review. (Cohen v. Ratinoff (1983) 147 Cal.App.3d
321, 327.)
Section 1161, Subdivision 2 and Statutory Construction
       Section 1161, subdivision 2, governs the contents of a notice to pay rent or quit. The
statute provides, in relevant part, that a tenant is guilty of unlawful detainer for the nonpayment
of rent “[w]hen he or she continues in possession . . . without the permission of his or her
landlord, . . . after default in the payment of rent, pursuant to the lease or agreement under
which the property is held, and three days’ notice,[3] in writing, requiring its payment, stating
the amount which is due, the name, telephone number, and address of the person to whom the
rent payment shall be made, and, if payment may be made personally, the usual days and hours
that person will be available to receive the payment (provided that, if the address does not allow
for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent
or notice to the owner by the tenant to the name and address provided, the notice or rent is


       3
         Although the parties’ written agreement is not before us, we note it is well established that
parties may, in their lease, provide for termination of the leasehold based on a notice period longer than
that prescribed by statute. (Fifth & Broadway Partnership v. Kimny, Inc. (1980) 102 Cal.App.3d 195,
200; Devonshire v. Langstaff (1935) 10 Cal.App.2d 369, 372.) In the instant matter, the length of the
notice period — 14 days — has not been disputed. Accordingly, our analysis presumes the lease
contained a provision for 14 days’ notice of termination.

                                                    4
deemed received by the owner on the date posted, if the tenant can show proof of mailing to the
name and address provided by the owner) . . . .”
       “‘Under general settled canons of statutory construction, we ascertain the Legislature’s
intent in order to effectuate the law’s purpose. [Citation.] We must look to the statute’s words
and give them their “usual and ordinary meaning.” [Citation.] “The statute’s plain meaning
controls the court’s interpretation unless its words are ambiguous. If the plain language of a
statute is unambiguous, no court need, or should, go beyond that pure expression of legislative
intent.”’ [Citation.]” (In re Jose S. (2017) 12 Cal.App.5th 1107, 1113.) In examining the
statute, we are guided by two applicable principles. “First, statutory language is to be
understood in context, with the whole of a statute considered when attempting to construe each
part. [Citations.] Second, the Legislature does not engage in idle acts, and no part of its
enactments should be rendered surplusage if a construction is available that avoids doing so.
[Citations.]” (Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1087.)
       Under the clear language of the statute, the decision to allow personal payment of the
rent, in addition to allowing payment by mail by the tenant, is up to the landlord. This is
evident from the conditional clause that follows the text in the statute specifying the
information that must be included in the notice—the amount of outstanding rent, and the name,
telephone number, and address of the person to whom the rent shall be paid. The conditional
clause, which begins with “if payment may be made personally” (italics added), sets forth the
additional information that must be included in the notice if the landlord is willing to allow the
rent to be personally delivered.
       Thus, under the statute, if plaintiff served a 14-day notice and elected to give defendants
an option to pay their delinquent rent personally, then he was required to include in the notice
amount of rent due, the name, address, and telephone number of the person to whom the rent
payment was to be made, and the usual days and hours that the person identified was available
to receive the payment. In contrast, a landlord who elects to receive the delinquent rent by mail
only is simply required to include in the notice the amount of rent due, the name and address of
the person to whom the rent payment shall be mailed, and a telephone number for that person.


                                                 5
The Notice Was Valid
       The inclusion of the weekday hours that Hsieh was available to receive payment and/or
phone calls did not preclude payment by mail. The notice contained a street address, and there
was no language indicating payment was required to be made in person rather than by mail. As
such, there was no basis for the court to conclude that the notice required defendants to deliver
their payment to Hsieh in person. The trial court’s finding that the notice “doesn’t provide
another way to pay except for in person service” is unsupported by the record and the plain
meaning of the statute. The notice gave defendants the option to either mail or personally
deliver their payment to Hsieh. (Smiley v. Citibank (1995) 11 Cal.4th 138, 146; Schabarum v.
California Legislature (1998) 60 Cal.App.4th 1205, 1216 [in reviewing an order on a motion
granting judgment on the pleadings, we do not defer to the trial court’s analysis].)
The Complaint Was Not Premature
       Where an unlawful detainer proceeding is based on the tenant’s breach, the cause of
action does not arise until the expiration of the notice period without the default being cured by
the tenant. (§ 1161, subd. 2; Downing v. Cutting Packing Co. (1920) 183 Cal. 91, 95-96.) The
complaint cannot be filed until the full notice period has expired, since the tenant is not guilty
of unlawful detainer until the full three days — or in the instant matter, 14 days — have
expired. (Nicolaysen v. Pacific Home (1944) 65 Cal.App.2d 769, 773 [“tenancy is not
terminated upon the giving of the notice but upon the expiration of the period therein
specified”]; Lamanna v. Vognar (1993) 17 Cal.App.4th Supp. 4, 6 [“cause of action for
unlawful detainer does not arise until the three days required for proper notice have expired
without the tenant having paid the rent during that time”].) A complaint which is filed prior to
expiration of the full notice period can be dismissed as premature. (Lamanna v. Vognar, supra,
17 Cal.App.4th at pp. Supp. 7-8 [landlord’s complaint was premature and had to be dismissed];
Highland Plastics, Inc. v. Enders (1980) 109 Cal.App.3d Supp. 1, 7.)
       In the case sub judice, the complaint alleged the notice was personally served on
defendants on April 22, 2017. Although the record does not include a proof of service,
defendants did not dispute the date of service in their motion, and properly pled facts are


                                                 6
deemed true. (People ex rel. Harris v. Pac Anchor Transportation, Inc., supra, 59 Cal.4th at
p. 777.) Accordingly, we utilize April 22, 2017, to calculate that the 14th day therefrom fell on
May 6, 2017. Because the complaint was filed four days later on May 10, 2017, it was not
premature.
                                            DISPOSITION
       The judgment is reversed. Plaintiff to recover costs on appeal.



                                                 ______________________
                                                 P. McKay, P. J.

       We concur:



       ______________________                    ______________________
       Kumar, J.                                 Ricciardulli, J.




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