Filed 9/9/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
UNIVERSAL SHOPPING B348490
PLAZA,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No.
25NNCV01228)
v.
PIONG BIN HONG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Frank M. Tavelman, Judge. Reversed and
remanded with directions.
Piong Bin Hong, in pro. per., for Defendant and Appellant.
Kimball, Tirey & St. John and Tiffany D. Truong for
Plaintiff and Respondent.
_______________________
Piong Bin Hong, doing business as Five Star Restaurant,
appeals from the judgment entered in favor of his commercial
landlord, Universal Shopping Plaza (Universal), following a court
trial in Universal’s unlawful detainer action. Hong contends the
trial court erred in entering judgment in favor of Universal
because Universal’s three-day notice to pay rent or quit was
invalid under California Code of Civil Procedure section 1161,
subdivision (2) (section 1161(2)), because the notice demanded
Hong pay rent that became due more than one year before the
notice was served and posted. Hong also contends the court erred
in awarding Universal $123,111 in holdover damages because he
was not in default and Universal refused his offer to pay holdover
rent.
Universal acknowledges that Hong’s missed rent payment
for January 2023 and underpayment of the February 2023 rent
occurred more than a year prior to service of the three-day notice
(on February 12, 2025). But Universal argues the three-day
notice was nonetheless valid because the parties’ lease agreement
provided that any rent payments made by Hong were to be
applied to Hong’s oldest payment obligations. Thus, Universal
argues, Hong’s regular monthly payments after he missed the
January payment temporarily cured his default but put him in a
continual state of arrears, such that the three-day notice two
years later was timely because it was based on a current
obligation.
Universal’s position, which the trial court adopted, is
contrary to the plain meaning and intent of section 1161(2).
Section 1161(2) requires a three-day notice be served “within one
year after the rent becomes due,” not on the date the landlord
decides the lease has been breached under a contractual
provision delaying for one month at a time any default in the
nonpayment of rent. Further, the landlord’s interpretation of
section 1161(2)’s one-year notice requirement is inconsistent with
the Legislature’s intent in creating the summary unlawful
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detainer procedure to ensure fairness to the parties by preventing
a landlord from sitting on its rights, then at a later time forcing
an eviction on a long-overdue rent payment.
Precisely such unfairness occurred here: The evidence at
trial showed that Hong paid his monthly rent for over two years
before he was served with the three-day notice, and the unpaid
rent demanded in the notice corresponded precisely with his
initial nonpayment. Accordingly, the notice was void and cannot
support the unlawful detainer judgment and award of holdover
damages. We reverse the judgment and remand for the trial
court to enter a judgment in favor of Hong.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Lease Agreement and 2023 Rent Dispute
Hong owns the Five Star Restaurant in San Gabriel. On
December 19, 2016 Hong and Universal entered into a five-year
commercial lease agreement for space in Universal’s shopping
plaza on West Valley Boulevard for the period from January 1,
2017 to December 31, 2021. Paragraph 4.1 of the lease,
governing payment of rent, stated “[Hong] shall pay to
[Universal] without prior demand, deduction, or offset, payable in
advance upon commencement of the first month of the term
hereof and thereafter on the first day of each calendar month
during the original or any extended term hereof, and subject to
increases as provided for herein, monthly minimum rent of
[$30,625] per month.” The monthly base rent would increase by
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3 percent “on the beginning of the second lease year and every
year thereafter.”1
Paragraph 27.1, titled “Events of Defaults and Remedies,”
provided Hong would be considered in default upon “failure by
[Hong] to make any payment of rent or additional rent
required . . . to be made by [Hong] hereunder, as and when due,
where such failure shall continue for a period of three days after
written notice thereof from [Universal] to [Hong]; provided,
however, that any such notice shall be in lieu of, and not in
addition to, any notice required under California Code of Civil
Procedure Section 1161, as amended.”2
Paragraph 4.5 of the lease, titled “Application of
Payments,” provided, “All payments received by [Universal] from
[Hong] . . . shall be applied to the oldest payment of obligation
owed by [Hong] to [Universal]. No designation by
[Hong] . . . shall modify this clause or have any force or effect.” 3
1 Hong was obligated to pay “additional rent” beyond the
base rent for common area maintenance, insurance premiums,
property taxes, and other enumerated expenses incurred by
Universal. During the lease term, Hong’s monthly rent payments
typically exceeded his base rent by about $15,000 to $20,000.
2 We have omitted capitalization in the lease and subsequent
three-day notice.
3 Contracts may contain an application of payments
provision to clarify, with respect to a debtor who has “several
obligations” to a creditor (here, lease payments owed by Hong to
Universal), the priority of obligations to be satisfied by a
payment. (See Civ. Code, § 1479 [describing priority of
obligations to be satisfied by payments in absence of application
of payments provision or other expression of parties’ intent].)
4
Upon expiration of the original lease on December 31, 2021,
the parties agreed to continue with a month-to-month tenancy.
However, Hong did not make a rental payment in the month of
January 2023, because he believed he was entitled to a 10-
percent discount for 2022 based on a conversation he had in
June 2021 with Victoria Chiang, the leasing and office manager
for Universal, in which she offered him a rent reduction in light
of challenges resulting from the COVID-19 pandemic.
On January 5, 2023 Hong sent a letter to Maggie Lei, an
accountant and member of the Universal property management
team. Hong asserted in the letter that he overpaid rent by
$65,989 in the 2022 calendar year because he was not given the
promised rent discount. Hong wrote, “Instead of issuing you a
check for the January 2023 charges, I am deducting the January
charges of $57,388 from my total credit amount of $65,989, which
leaves a credit balance of $8,600. I will then deduct the
remaining credit amount of $8,600 from the rent that I will owe
for the month of February 2023, and issue a check for the
difference.”4 Consistent with his letter, Hong did not pay the rent
for January 2023, and his rental payment on February 1, 2023
was $8,600 less than the monthly payment owed. Hong
thereafter fully paid the rent for March 2023, and he continued to
pay the monthly rent for the next 23 months.
B. The Three-day Notice, the Complaint, and Hong’s Demurrer
On February 1, 2025 Hong paid his rent in full in the
amount of $66,158. On February 12, 2025 Universal served a “3-
4 Hong also claimed that Universal charged a $3,833 fee in
June 2022 that was improper.
5
Day Notice to Pay Rent or Quit” (three-day notice) on Hong. The
three-day notice stated Hong was delinquent in paying his rent
and demanded he pay “unpaid rent” in the amount of $65,989
within three days or surrender the premises. The three-day
notice did not state for which payment period the rent was due or
set forth Universal’s basis for calculating the unpaid rent.
After Hong failed to make an additional payment within
three days, on February 25, 2025 Universal filed an unlawful
detainer complaint using Judicial Council form UD-100. The
complaint, which attached the three-day notice, alleged the
parties had a written five-year lease agreement; Universal served
Hong with the three-day notice by leaving a copy at Hong’s
business; at the time of the three-day notice, the “amount of rent
due” was $65,989; and Hong failed to comply with the
requirements of the notice by the end of the three-day period.
The complaint requested possession of the premises, past-due
rent of $65,989, holdover damages of $1,219 per day (the alleged
fair market value of the premises) beginning on March 1, 2025,
and attorneys’ fees.
On March 12, 2025 Hong, representing himself, filed a
demurrer to the complaint, arguing the three-day notice violated
section 1161(2) because it required him to pay rent more than one
year after it became due. In support of the demurrer, Hong filed
a declaration, several documents relating to the parties’ dispute
over rent payments and alleged breaches of the lease in 2022, and
Hong’s January 5, 2023 letter to Lei. Universal opposed the
demurrer on the grounds that it relied on disputed factual issues
and extrinsic evidence. The trial court agreed and overruled the
demurrer. Hong answered the complaint on May 9, 2025.
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C. The Unlawful Detainer Trial and Judgment
A three-day court trial commenced on June 6, 2025. Hong
represented himself at the trial using a court-certified Mandarin-
language interpreter. Universal called Chiang as a witness.
Hong testified and called Lei, Stephen Jiang (Universal’s
property manager), and Justin Chan (a representative of the
shopping plaza’s owner) as witnesses. The trial court admitted
the lease agreement, three-day notice, proofs of service, a lease
ledger, and communications between the parties.
A substantial portion of the trial related to the parties’
dispute in 2022 regarding a rent reduction by Universal and
Hong’s 2023 lease payments. The undisputed evidence showed
Hong withheld $65,989 in early 2023 by paying no rent in
January and withholding $8,600 from his February rent
payment. Lei testified that on January 25, 2023 Universal sent
Hong a notice stating he was in breach of the lease and that he
owed $63,127 for the January rent plus late fees.5 Lei admitted
that Hong paid the monthly rent from March 2023 through
February 2025. Chiang answered “Yes” when asked whether it
would “be accurate to say that once [Hong] fell behind on his rent
in 2023, he was always about a month behind in rent because the
payments received were applied to the oldest balances.” Further,
Chiang confirmed that the “unpaid rent” listed on the three-day
notice referred to the missed payments in January and
February 2023 “because of the application of payments.”
In her closing argument, Universal’s attorney asserted the
evidence showed that Hong’s “rental arrears” began in
5 Universal’s January 25, 2023 letter was admitted at trial
but is not in the record on appeal.
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January 2023, and Universal’s January 25, 2023 letter was “very
clear” that Hong owed unpaid rent. Although Hong continued to
pay rent each month, “the applications were always applied to
the oldest balances that were owed, and therefore he [had]
always [been] essentially one month behind starting in 2023.”
Further, Universal made it clear in its response to Hong’s
January 5, 2023 letter to Lei that Universal did not agree to
discount Hong’s rent in 2022, nor did it consent to Hong’s
decision to unilaterally withhold rent based on his understanding
of the 2022 discussions. In his closing argument, Hong argued
the three-day notice violated section 1161(2) because “[it] didn’t
indicate the amount of $65,988.59 was [owed for] which month.”
Following the closing arguments, the trial court ruled in
favor of Universal. The court found that although Hong believed
Universal had orally agreed to a 10-percent rent reduction in
2022, there was no effective modification of the lease because the
lease required any agreement to be in writing. Moreover, it was
“problematic” that Hong, instead of resolving the issue formally,
simply failed to pay the rent.
The trial court rejected Hong’s argument that the three-day
notice was defective because it did not specify the period for
which rent was owed, finding that section “[1161(2)] does indicate
that all [Universal] had to do is list the back rent.” With respect
to the unpaid rent in the notice, the court advised Hong: “I
understand your argument that, if there was missed rent, it was
from prior months and was beyond the one-year statute. But
under the terms of the lease that continued on a month-to-month
basis, rent is applied to back rent first. And so for every payment
you made, it was applied to the back rent first, which meant that
you were missing a current payment.”
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On July 3, 2025 the trial court entered judgment in favor of
Universal, awarding it possession of the premises, $65,989 in
past-due rent, and $123,111 in holdover damages. Hong timely
appealed.
DISCUSSION
A. Unlawful Detainer Proceedings and Standard of Review
“The Unlawful Detainer Act [§§ 1159-1179a] governs the
procedure for landlords and tenants to resolve disputes about
who has the right to possess real property. [Citations.] Given
the need for quick, peaceful resolutions of unlawful detainer
actions, the statutory procedures must be strictly adhered to,
including the stringent requirements for service, notice, and
filing deadlines.” (Stancil v. Superior Court (2021) 11 Cal.5th
381, 394-395; accord, Dr. Leevil, LLC v. Westlake Health Care
Center (2018) 6 Cal.5th 474, 480 [“‘It has long been recognized
that the unlawful detainer statutes are to be strictly construed
and that relief not statutorily authorized may not be given due to
the summary nature of the proceedings. [Citation.] The
statutory requirements in such proceedings “‘must be followed
strictly.’”’”].)
“Section 1161(2) provides that a tenant is guilty of unlawful
detainer when the tenant continues in possession of a rental
property without the permission of the landlord after default in
the payment of rent.” (City of Alameda v. Sheehan (2024)
105 Cal.App.5th 68, 75 (Sheehan).) When the tenant continues in
possession, “service of a ‘valid three-day notice to pay rent or quit
is a prerequisite to an unlawful detainer action.’” (Ibid; accord,
Eshagian v. Cepeda (2025) 112 Cal.App.5th 433, 457.) “‘The
notice’s purpose is to inform the tenant of the breach so the
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tenant can rationally choose whether to cure the breach and
retain possession, quit the property, or contest the allegations.’”
(Eshagian, at p. 457.) A three-day notice is only valid if the
landlord “strictly complies” with the requirements of
section 1161(2). (Eshagian, at pp. 457, 459 [three-day-notice was
defective because it did not state that failure to pay rent would
result in eviction, specify when the three-day period commenced
or ended, and provide a clear address for payment of rent owed];
accord, Sheehan, at pp. 81-82.)
Section 1161(2) specifies the precise information that must
be stated in the three-day notice and the notification
requirements for the notice to be valid. As relevant here, “[t]he
notice may be served at any time within one year after the rent
becomes due.” (§ 1161(2); see Levitz Furniture Co. v. Wingtip
Communications, Inc. (2001) 86 Cal.App.4th 1035, 1038 (Levitz).)
“[A] landlord who waits more than one year to sue for rents due
from a tenant may be restricted to collecting such rents in a
separate action for breach of contract.” (Levitz, at p. 1042; see
WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526 [if a
landlord fails to strictly comply with section 1161(2)’s
requirements, its “‘“remedy is an ordinary suit for breach of
contract with all the delays that remedy normally involves and
without restitution of the demised property”’”].)
The legislative history of section 1161(2) reflects the
Legislature’s intent “‘to protect landlords and tenants by setting
clear requirements for payment [of overdue rent] to whom and
where.’” (Sheehan, supra, 105 Cal.App.5th at p. 75, quoting
Assem. Com. on Housing and Community Development, Analysis
of Sen. Bill No. 985 (2001-2002 Reg. Sess.), as amended July 9,
2001, p. 7.) Section 1161(2) also “prevents a landlord’s sitting on
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his or her rights, when rent is unpaid at some point during the
life of a lease, then using long-overdue rent (but no recently
overdue rent) to effect an eviction.” (Levitz, supra,
86 Cal.App.4th at p. 1040.)
In reviewing a judgment following a bench trial, “‘we
review questions of law de novo, and we review the trial court’s
findings of fact for substantial evidence.’” (State of California ex
rel. Rapier v. Encino Hospital Medical Center (2022)
87 Cal.App.5th 811, 828; accord, Ribakoff v. City of Long Beach
(2018) 27 Cal.App.5th 150, 162; see Jessup Farms v. Baldwin
(1983) 33 Cal.3d 639, 660 [stating with respect to factual findings
following bench trial, “‘the power of an appellate court begins and
ends with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,’ to support the findings
below”].) As part of our substantial evidence review, we “must
view the record in the light most favorable to the prevailing party
below and give appropriate deference to how the trier of fact may
have evaluated the credibility of witnesses, resolved conflicts in
the evidence, and drawn reasonable inferences from the
evidence.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-
1012; accord, Ribakoff, at p. 162.)
B. The Three-day Notice Failed To Comply with
Section 1161(2) Because the Unpaid Rent Became Due More
Than One Year Earlier
On appeal, Hong contends the three-day notice was invalid
because the unpaid rent that Universal demanded in the notice
was more than one year overdue. We agree.
The undisputed evidence at trial showed that Hong did not
pay rent on January 1, 2023, and he paid less than the full rent
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on February 1, 2023, because he believed he was entitled to a
$65,989 rent reduction for 2022. On January 25, 2023 Universal
notified Hong he was in breach of the lease and that he owed
$63,127 for January 2023 (including a late fee). Universal took
no further action following this notice of breach, and Hong paid
the monthly rent due from March 2023 up to and including
February 1, 2025. Universal’s three-day notice served in 2025
identified the amount of unpaid rent as $65,989, which was the
exact amount Hong failed to pay in January and February 2023.
Further, Universal admitted at trial that the three-day notice
was based on the 2023 nonpayment.
On these facts, the three-day notice was invalid.
Section 1161(2) expressly requires that the notice be served
within one year “after the rent becomes due.” When there “‘is no
ambiguity, then we presume the lawmakers meant what they
said, and the plain meaning of the language governs.’” (Allen v.
Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227; see
Brown v. City of Inglewood (2025) 18 Cal.5th 33, 40 [“If the
language is clear, [we] must generally follow its plain meaning
unless a literal interpretation would result in absurd
consequences the Legislature did not intend.”].)
The lease stated in paragraph 4.1 that the rent was due
“without prior demand, deduction, or offset, payable in advance
upon commencement of the first month of the term hereof and
thereafter on the first day of each calendar month during the
original or any extended term hereof.” Hong failed to pay the
rent due on January 1, 2023, and his February 1, 2023 rent
payment was short by $8,600. Thus, under section 1161(2), to
bring an action for unlawful detainer based on this unpaid rent,
Universal had to serve a three-day notice no later than
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February 1, 2024. Because it failed to do so, the notice was
invalid, and Universal could not prevail in the unlawful detainer
proceeding. (Levitz, supra, 86 Cal.App.4th at p. 1038.)6
Universal urges us to affirm the trial court’s finding that
the three-day notice was valid because even if Hong had missed a
rent payment in January 2023, “for every payment [Hong] made,
it was applied to the back rent first, which meant that [he was]
missing a current payment.” But the “allocation of payments”
provision in the lease does not save the three-day notice.
Paragraph 4.5 of the lease simply provided that all payments
made by Hong “shall be applied to the oldest payment of
obligation owed” to Universal. Although this provision might
affect the total amount owed for a prior failure to pay rent and
(potentially) the running of the limitations period for a breach of
contract action, it does not modify the date “rent becomes due”
under paragraph 4.1 (on the first day of the month), which is the
triggering event for service of the three-day notice of an unlawful
detainer action under section 1161(2).
To hold otherwise would undermine the legislative intent
underlying section 1161(2)’s notice provision to prevent landlords
from sitting on their rights when a tenant fails to pay rent at
some point in a lease, “then using long-overdue rent (but no
6 In Levitz, supra, 86 Cal.App.4th at pages 1042 to 1043, the
court held a landlord’s demand that includes unpaid rent that
was due outside the one-year window does not invalidate a three-
day notice, provided the notice also specifies unpaid rent falling
within the one-year window; however, in the unlawful detainer
proceeding the landlord could collect only the rent falling within
the one-year window and would need to file a suit for breach of
contract to recover the remaining amount. In this case, the
entire amount of unpaid rent fell outside the one-year window.
13
recently overdue rent) to effect an eviction.” (Levitz, supra,
86 Cal.App.4th at p. 1040.) Under Universal’s interpretation, a
landlord could take no action on a missed rent payment for years,
then, once prevailing market rates increase, pursue a summary
eviction of the tenant with just three days’ notice. We reject that
interpretation of section 1161(2) and reverse the judgment.7
DISPOSITION
The judgment is reversed. We remand for the trial court to
enter a new judgment in favor of Hong. Hong is entitled to
recover his costs on appeal.
FEUER, J.
We concur:
MARTINEZ, P. J.
STONE, J.
7 Although Universal may not avail itself of the unlawful
detainer proceedings and remedies, Universal is not without
recourse: It may bring an action for breach of contract, provided
it does so within the four-year statute of limitations under Civil
Code section 337. (Levitz, supra, 86 Cal.App.4th at p. 1042; see
WDT-Winchester v. Nilsson, supra, 27 Cal.App.4th at p. 526.)
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