It is amazing how frequently plaintiff’s attorneys, property managers and owners fail to understand how to properly compute the three-day notice period in the context of a three-day notice to pay or quit.
Not only is it embarrassing to face the judge and explain how you did not properly count to three, it is also time consuming and expensive. If you fail to correctly count to three, a defendant will simply file a Demurrer to the Complaint, which the court will sustain without leave to amend.
This means you will have to dismiss the defendant, re-serve the three-day notice, re-file and re-serve the complaint, and pay the filing and process server fees again. Ouch.
Click here for an example of a Demurrer to the Complaint we filed in which the court sustained without leave to amend in regards to this issue.
One may not file an unlawful detainer complaint until three days have elapsed after serving a three-day notice. CCP §1161.
The first step in counting to three is excluding the first day and including the last. CCP §12.
Next, if the third day falls on a “holiday,” the complaint may be filed the day after the next business day. CCP §12a.
Holidays are defined as Saturday, Sunday and the other days listed in Govt C §6700 and CCP §§ 10, 12a, 12b, and 135.
A demonstration of how holidays stretch the time under the three-day notice occurred in Lamanna v. Vognar (1993) 17 CA4th Supp 4, 22.
In that case, the landlord served a three-day notice to pay or quit on Wednesday, May 20, and filed an unlawful detainer action on Tuesday, May 26.
The court held that the action was filed prematurely. The first day (May 20) did not count in the three days, so the third day was Saturday, May 23. But that day, the following day (Sunday) and the next day Monday (Memorial Day) were all legal holidays.
Therefore, the third day became Tuesday, May 26, and the tenant had until the end of that day to pay the rent or quit. The court ruled that the earliest the landlord could file the unlawful detainer complaint was Wednesday, May 27.
Knowing how the laws affect the way you count is important. From a fundamental legal perspective, it pays to know how to count to three.
— Travis Logue is a partner at Rogers, Sheffield & Campbell LLP, a Santa Barbara law firm. Click here to read previous columns. The opinions expressed are his own. This article is not intended to provide legal advice. For legal advice on any of the information in this post, click here for the form on the Rogers, Sheffield & Campbell Contact Us page, or call 805.963.9721.