ois ai MNIT?Y OUAGNASOY AO SAOIIO AVI RY LINK, Q. SBN 088968 LAW OFFICE OF GARY LINK 725 30TH STREET, SUITE 107 SACRAMENTO, CA 95816 3\| Telephone: (916) 447-8101 Facsimile: (916) 447-4750 | 5 | ATTORNEY FOR PLAINTIFF, ANITA BOUTRUP, DAVE BOUTRUP. 6 | LANDLORD(s) 7 | BOUTRUP REVOCABLE LIVING TRUST “B” 3 | 9 10 | I IN AND FOR THE COUNTY OF SA‘ I i 12 || i 13.) ANITA BOUTRUP, DAVE BOUTRUP | LANDLORD) 14 i BOUTRUP REVOCABLE LIVING 15) TRUST “B” 16 i i Plaintiff, 17] vs. 18 | i 19 BRADLEY WASHBURN, ELIZABETH WASHBURN, Defendants. | in opposition to the Demurrer by, BRADLEY WASHBURN and ELIZABETH WASHBURN \UPERIOR COURT OF THE STATE OF CALIFORNIA -AMENTO AROL MILLER JUSTICE CENTER CASE NO. 09UD08085 OPPOSITION OF ANITA BOUTRUP, DAVE BOUTRUP AND BOUTRUP REVOCABLE LIVING TRUST “B” TO DEMURRER OF BRADLEY WASHBURN, ELIZABETH WASHBURN, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF October 6, 2009 9:00 a.m. Department 88 | ‘Comes now plaintifirespondent, ANITA BOUTRUP, DAVE BOUTRUP | LANDLORD(s) and BOUTRUP REVOCABLE LIVING TRUST “B”(hereinafier “Plaintif?”), \ (hereinafter “Defendant or Movant”) and responds as followsNIT 9 OUAANASOY AO SAOIO AW 4 On August 31, 2009, plaintiff filed an action for unlawful detainer against defendants, in the Sacramento County Superior Court Case # 09UD08085, conceming defendants’ tenancy at 5440 | College Oak Dr., # 6, Sacramento, CA 95841. i \ MEMORANDUM OF POINTS AND AUTHORITIES, L i FACTUAL ALLEGATIONS | | Sacramento, CA 95841.(hereinafter “subject premises"). | On or about March 1, 2009, plaintiffs and defendants entered into a written agreement | whereby plaints agreed to allow defendants to reside atte subject premises on amonth fo month basis. Rent was agreed to be due in advance on the 1* day of each and every month, at the rate of $970.00 per month. On June 12, 2009, defendants were served with a 30 - Day Notice of || Termination of Tenaney which expired on July 13, 2009. Defendants failed to vacate the subject | premises on or before July 13, 2009. Plaintiffs then filed an etion in the Superior Court of | California for Unlawful Detainer on September 1, 2009. Defendants demurred to plaintiis? | complaint on September 8, 2009. ] Hh. | ARGUMENT AND AUTHORITY ! AL DEFENDANT'S DEMURRER SHOULD BE OVERRULED BECAUSE THE i COMPLAINT IS NOT UNCERTAIN AS DEFINED IN CCP § 430.10(F) BUT INSTEAD | COMPLIES WITH CCP § 1166's REQUIREMENT OF VERIFICATION, CONTENTS, AND ATTACHMENTS. Plaintiffs are the owner of record of the premises located at 5440 College Oak Dr., # 6, |ouput) NINITY OUFANASON JO SAOIO MV Soe rna CCP §1166 states in pertinent part: (@ The complaint shall (1) Be verified and include the typed or printed name of the person verifying the complaint. || (2) Set forth the facts on which the plaintiff seeks 10 recover. | (3) Describe the premises with reasonable certainty. (4) If the action is based on paragraph (2) of Section 1161, state the amount of rent in default. Defendants have demurred to plaintiffs’ entire complaint, Said demurrer should be | overruled because paints have complied with CCP §1166 and the accompanying case law, by setting forth the facts on which they seek to recover in their complaint. Plaintiff has properly alleged the existence of a landlord-tenant relationship between plaintifis and defendants as evidenced in | plaintiff's Exhibit 1 (aresidential month-to-month rental agreement). Further, Plaintiffs have alleged | that after the termination of the landlord-tenant relationship plaintiffs held over. As illustrated | above, plaintifs served defendants with a 30-Day Notice of Termination which expired on July 13, 2009. Defendants did not vacate the subject premises on or before the expiration of said notice and therefore, held over after the termination of the month-to-month agreement. Defendants further argue that plaintiffs’ complaint is uncertain due to plaintiffs? failure to comply with the fictitious business name laws. Plaintiffs’ need not comply with the fictitious | bu ss name Jaws because they are not bringing this cause of action under a fictitious business | name but in their own names as trustees of the trust which is the owner of the subject premises, In i 5 | line # 1 plaintiffs comecty identity the parties as Antia Boutrup and Dave Boutrup Trustees of the | Boutrup Revocable Living Trust B, and Elizabeth Washburn and Brad AKA Bradley Washburn, defendants. In line # 2 (a) plaintiffs correctly identify plaintiffs as trustees for said trust. Thus, by correctly alleging the identity of the part . plaintiffs have correctly alleged a fact on which they seek to recover. Plaintiffs’ complaint complies with CCP § 1166 and the associated case law by setting forth the facts on which they seek to recover by correctly identifying the parties to the action, identifying the existence ofa conventional landlord-tenant relationship, and a holding over after the termination i | of such relationship. | | | |soxearr ue “ouvoayoa ii TwHoiseaiOu 40 NOUWOOSEY NY NITY OUIGNASOU AO SAOTIO MVT PO Oe eee RBRBRBRERSEIRAE el See a on R 26 27 28 B. | PLAINTIFFS’ AMENDED PROOF OF SERVICE CORRECTLY ALLEGES THAT. POSTING AND MAILING THUS COMPLYING WITH CCP § 1162 REQUIREMENTS OF SERVICE AND ALLOWED BY CCP § 1166(a)(5). Court to determine the method of service, thus making the complaint uncertain. CCP § 1166 (a) in pertinent part provides: (5) State specifically te method of service used to serve the defendant with the notice or notices of termination upon which the complaint is based. This requirement may be satisfied by using and completing all items relating to service of the notice or notices in an appropriate Judicial Council form complaint, or by attaching a proof of service of the notice or notices of termination served on the defendant Plaintiffs in Exhibit 3 allege correctly that method of service was by posting and mailing. Even though plaintiffs’ Judicial Council form complaint may allege an additional method of service, this allegation is mere surplusage. Plaintiff must set forth the facts on which it seeks to recover. (CCP § 1166 (a) (2) By alleging defendants were served with the 30-Day Notice of Termination of ‘Tenancy, plaintiff has alleged a fact which is necessary to recover - proper service of said notice. While defendant argues that plaintiffs’ Judicial Council form complaint and the attached Exhibit 3 may be inconsistent, such inconsistency does not rise to the level of uncertainty. It is not uncertain whether defendants were actually served and had notice and were aware of the Notice of Termination. Defendant had notice of the 30-Day Notice of Termination of Tenancy by both posting said notice on their door and by mailing a copy thereof to the residence. The additional method of service in plaintiffs’ Judicial Council form complaint is mere surplusage and does not make the complaint uncertain because plaintiff has alleged all necessary facts on which plaintiff seeks to recover. DEFENDANTS WERE SERVED WITH THE 30-DAY NOTICE OF TERMINATION BY | Defendants argue that the complaint lacks sufficient facts to enable the defendants and the |DINIT?Y DUAINASOY AO SAOIO AW GARY LINK, ESQ. SBN 088968 LAW OFFICE OF GARY LINK 725 30TH STREET, SUITE 107 SACRAMENTO, CA 95816 (916) 447-8101 (916) 447-4750 ATTORNEY FOR PLAINTIFF, ANITA BOUTRUP, DAVE BOUTRUP LANDLORD(s) |, BOUTRUP REVOCABLE LIVING TRUST “B” IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO CAROL MILLER JUSTICE CENTER ANITA BOUTRUP, DAVE BOUTRUP LANDLORD(s) BOUTRUP REVOCABLE LIVING TRUST “B” Plaintiff, vs. BRADLEY WASHBURN, ELIZABETH WASHBURN, Defendants. | —_—— CASE NO, 09UD08085 OPPOSITION OF ANITA BOUTRUP, DAVE BOUTRUP AND BOUTRUP REVOCABLE LIVING TRUST “B” TO DEMURRER OF BRADLEY WASHEURN, ELIZABETH WASHBURN, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: October 6, 2009 Ti 9:00 a.m. Location: Department 88 ‘Comes now plaintiff/respondent, ANITA BOUTRUP, DAVE BOUTRUP | LANDLORD) and BOUTRUP REVOCABLE LIVING TRUST “B” (hereinafter “Plaintif?”), | in opposition to the Demurrer by, BRADLEY WASHBURN and ELIZABETH WASHBURN i | (hereinafter “Defendant or Movant”) and responds as follows: fon. Gels Denied Pi AKA Philip Br, Coe No 9D! (Opposition fo DamenMINIT?) OUAANASON JO SANIIO MV1 On August 31, 2009, plaintiff filed an action for unlawful detainer against defendants, in the Sacramento County Superior Court Case # 09UDO8085, concerning defendants’ tenancy at $440 ‘College Oak Dr., # 6, Sacramento, CA 95841 Q N POINTS AND AUTH! L FACTUAL ALLEGATIONS Plaintiffs are the owner of record of the premises located at $440 College Oak Dr, # 6, Sacramento, CA 95841 (hereinafter “subject premises”) On or about March 1, 2009, plaintiffs and defendants entered into a written agreement | whereby plaintiffs agreed to allow defendants to reside a the subject premises on a month to month | basis. Rent was agreed to be due in advance on the 1" day of each and every month, at the rate of |, $970.00 per month. On June 12, 2009, defendants were served with a 30 - Day Notice of ‘Termination of Tenancy which expired on July 13, 2009. Defendants failed to vacate the subject, || premises on or before July 13, 2009. Plaintiffs then filed an action in the Superior Court of California for Unlawful Detainer on September 1, 2009. Defendants demurred to plaintiffs’ | complaint on September 8, 2009. | nL i ARGUMENT AND AUTHORITY i I A | DEFENDANT’S DEMURRER SHOULD BE OVERRULED BECAUSE THE, COMPLAINT IS NOT UNCERTAIN AS DEFINED IN CCP § 430.10(F) BUT INSTEAD COMPLIES WITH CCP § 1166's REQUIREMENT OF VERIFICATION, CONTENTS, AND ATTACHMENTS. Ramon. Gonzales, Denis and Pil AKA Philip Brown, Cse No.g@UDI6501 Opposition Dumerer 3ounces ie) ssn Wa ounamnons swouraoaved me vhorse so 89 NOLVDOSSY HY DINIT*9 OUAINASOU AO SANIIO AT a es 10 | uM 12 3 4 15 16 v7 18 19 20 au 22 B 4 25 26 7 28 @ @ | 2) a) a i i i i CCP $1166 states in pertinent part: ‘The complaint shall: Be verified and include the typed or printed name of the person verifying the complaint Set forth the facts on which the plaintiff seeks to recover. Describe the premises with reasonable certainty. {fhe action is based on paragraph (2) of Section 1161, state the amount of rent in deft, | Defendants have demurred to plaintiffs’ entire complaint. Said demurrer should be overruled because plaintiffs have complied with CCP §1166 and the accompanying case law, by setting forth the facts on which they seek to recover in their complaint. Plaintiffhas properly alleged the existence of a landlord-tenant relationship between plaintiffs and defendants as evidenced in plaintif?’s Exhibit 1 (aresidential month-to-month rental agreement), Further, Plaintifishavealleged that after the termination of the landlord-tenant relationship plaintiffs held over. As illustrated above, plaintiffs served defendants with a 30-Day Notice of Termination which expired on July 13, 2009, Defendants did not vacate the subject premises on or before the expiration of said notice and therefore, held over after the termination of the month-to-month agreement. Defendants further argue that plaintiffs’ complaint is uncertain due to plaintiffs" failure to seek to recover. comply with the fictitious business name laws. Plaintiffs’ need not comply with the fictitious business name laws because they are not bringing this cause of action under a fictitious business || name but in their own names as trustees of the trust which is the owner of the subject premises. in line # 1 plaintiffs correctly identify the parties as Antia Boutrup and Dave Boutrup Trustees of the | Boutrup Revocable Living Trust B, and Elizabeth Washburn and Brad AKA Bradley Washburn, | defendants, in line #2 (a) plaintiffs comrectiy identify plants as trustees for ssid trust. Thus, by | correctly alleging the idemtity of the parties, plsintifis have correctly alleged a fact on which they Plaintiffs* complaint complies with CCP § 1166 and the associated case law by setting forth of such relationship, ‘anon, Ooaatesw: Denise and Phi AKA Philip Brown, Case No || Opposiion to Damerer oun: the facts on which they seek to recover by correctly identifying the parties to the action, identifying | the existence of aconventional landlord-tenant relationship, anda holding over after the termination | | | i iea ie Sting sais ue ee sumone sr NEE 50 NOLIOOESY NITY OUAANASOY JO SALI MVT B OF SERVICE AND ALLOWED BY CCP § 1166(a)(5). Court to determine the method of service, thus making the complaint uncertain. CCP § 1166 (a) in pertinent part provides: (3) State specifically te method of service used to serve the defendant with the notice or notices of termination upon which the complaint is based. This requirement may be satisfied by using and completing all items relating to service of the notice or notices in an appropriate Judicial Council form complaint, or by attaching a proof of service of the notice or notices of termination served on the defendant recover. aos Goals Dene ant Pi AKA Pit Brown, Cae No PUD } Opposition te Dueter PLAINTIFFS’ AMENDED PROOF OF SERVICE CORRECTLY ALLEGES THAT. POSTING AND MAILING THUS COMPLYING WITH CCP § 1162 REQUIREMENTS Defendants argue that the complaint lacks sufficient facts to enable the defendants and the Plaintiffs in Exhibit 3 allege correctly that method of service was by posting and mailing. | || Even though plaintiffs’ Judicial Council form complaint may allege an additional method of service, | | this allegation is mere surplusage. Plaintiff must set forth the facts on which it seeks to recover. | (CCP § 1166 (2) (2) By alleging defendants were served with the 30-Day Notice of Termination of || Tenancy, plaintiff has alleged a fact which is necessary to recover - proper service of said notice. || While defendant argues that plaintiffs’ Judicial Council form complaint and the attached Exhibit 3 || may be inconsistent, such inconsistency does not rise to the level of uncertainty. Its not uncertain ||whether defendants were actually served and had notice and were aware of the Notice of ‘Termination, Defendant had notice of the 30-Day Notice of Termination of Tenancy by both posting. | said notice on their door and by mailing a copy thereof to the residence. The additional method of | | service in plaintiffs’ Judicial Council form complaint is mere surplusage and does not make the | I | complaint uncertain because plaintiff has alleged all necessary facts on which plaintiff seeks to ' | | | | DEFENDANTS WERE SERVED WITH THE 30-DAY NOTICE OF TERMINATION BY | | | ( | |‘Sis isms MINIT! SUAGNASOW AO SHILLIO AVI 26 | 27 28 | CONCLUSION Based upon the foregoing plaintiff respectfully reqt overruled, DATED: September 25, 2009 Ramon U. Gone Denise and Phil AKA Philip Browa, Case No, Opposition Dumerer up, Trustees for le Living Trust BLaw Office of Gary Link 725 30th Street, # 107 Sacramento, CA 95816 (916) 447-8101 PROOF OF SERVICE BY MAIL -CCP 1013 a, 2015.5 CASE NAME: BOUTROP VS. WASHBURN, | declare that ! am employed in the County of Sacramento, California. | am over the age of eighteen years and not a party to the within entitled cause; my business address is 725 30th Street, Suite 107, Sacramento, California 95816. ‘On 9/28/09 | served the attached OPPOSITION TO DEMURRER in said cause, by placing a true copy thereof enclosed in a sealed envelope with postage fully prepaid both by first class mail in the United States mail at Sacramento, Califomia, addressed as follows: ELIZABETH WASHBURN 5440 College Oak Drive, #6 Sacramento, CA 95841 BRADLEY WASHBURN 5440 College Oak Drive, #6 Sacramento, CA 95841 | declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on 9/28/09, at Sacramento, California. _ DATE = be