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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com Defendant in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION

Khoa Nguyen, Plaintiff, v. James Alan Bush, Defendant.

Case No. 1-12-CV-219272 NOTICE OF HEARING ON DEFENDANTS DEMURRER TO COMPLAINT Hearing: April 4th, 2012 9:15 AM Department: 19 Judge: Hon. Socrates Manoukian Action filed: February 24th, 2012 Trial Date: Not set

NOTICE OF HEARING ON DEFENDANTS DEMURRER TO COMPLAINT NOTICE IS HEREBY GIVEN that the demurrer to the complaint made by Defendant, James Alan Bush, a copy of which is served herewith, has been set for hearing on April 4th, 2012, at 9:15 AM, or as soon thereafter as the matter can be heard, in Department 19 of the above-entitled court, located at 191 North First Street, in San Jose. Dated: March 1st, 2012 By: X James Alan Bush Defendant in pro per 1-12-CV-219272

NOTICE

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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com Defendant in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION

Khoa Nguyen, Plaintiff, v. James Alan Bush, Defendant.

Case No. 1-12-CV-219272 DEMURRER TO COMPLAINT Hearing: April 4th, 2012 9:15 AM Department: 19 Judge: Hon. Socrates Manoukian Action filed: February 24th, 2012 Trial Date: not set DEMURRER TO COMPLAINT

Defendant, James Alan Bush, hereby demurs to the complaint of Plaintiff, Khoa Nguyen, on each of the following grounds: 1. Plaintiff lacks legal capacity to sue [Code Civ. Proc. 430.10(b) ]; 2. Failure to allege existence of lease [Code Civ. Proc. 430.10(e), (g) ]; 3. Inadequate description of premises [Code Civ. Proc. 430.10(e) ]; 4. Failure to allege service of 3-day or 60-day notice [Code Civ. Proc. 430.10(e) ]; 5. Plaintiff breached convenant to provide habitable premises [Code Civ. DEMURRER PAGE 1 OF 2 1-12-CV-219272

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Proc. 1174.2]; and, 6. An order to vacate has been issued by the City of San Jose, obviating the need for an order of eviction. Dated: March 20th, 2012 By: X James Alan Bush Defendant in pro per // // // // // // // // // // // // // // // // // // // // // DEMURRER PAGE 2 OF 2 1-12-CV-219272

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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com Defendant in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION

Khoa Nguyen, Plaintiff, v. James Alan Bush, Defendant.

Case No. 1-12-CV-219272 MEMORANDA IN SUPPORT OF DEFENDANTS DEMURRER TO COMPLAINT Hearing: March 5th, 2012 8:30 a.m. Department: 19 Judge: Hon. Socrates Manoukian Action filed: February 24th, 2012 Trial Date: not set SUPPORTING MEMORANDUM

I.

AUTHORITY FOR DEMURRER A. California Code Civ. Proc. 430.10(e) permits a party to object to a pleading, by demurrer, if [t]he pleading does not state facts sufficient to constitute a cause of action. B. A party may also object to a pleading by demurrer if [t] he pleading is uncertain. Uncertain includes ambiguous and unintelligible [Code Civ. Proc. 430.10(f) ].

// MEMORANDA PAGE 1 OF 7 1-12-CV-219272

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II. PLAINTIFF LACKS LEGAL CAPACITY TO SUE [CCP 430.10(b) ] A. Plaintiff is not the legal owner of the property, and does not otherwise have the right to possession; therefore, he is not the real-party-in-interest. Any unlawful detainer complaint that fails to state the true capacity of the landlord is subject to demurrer under Code Civ. Proc. 430.10(b), (f). Plaintiff failed to attach the requisite documents establishing ownership of the subject property to the complaint because, in fact, Theresa Ziemkowski is the legal owner of the premises at issue, and not the plaintiff [see Exhibit A]. Under the general provisions of the Code of Civil Procedure relating to proper parties in unlawful detainer actions [Code Civ. Proc. 1165], the landlord must have the legal capacity to sue [see Code Civ. Proc. 430.10(b) When the lease is between ]. the tenant and a resident manager who is not entitled to possession of the premises, as is the lease between the defendant and the plaintiff, the issue of capacity to sue will be based on whether the landlord is entitled to possession of the property. In Cheney v. Trautzettle (1937) 9 C2d 158, 69 P2d 832, it was established that it is not the title that is determinative of whether the landlord can lawfully bring an unlawful detainer action, but the right to possession alone. If a manager entered into the lease as an agent for the owner, but does not have the right to possession, then the owner must be joined as a plaintiff in the unlawful detainer action. Therefore, because the plaintiff does not have legal capacity to sue the defendant, he must join the true owner of the premises MEMORANDA PAGE 2 OF 7 1-12-CV-219272

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to the unlawful detainer action as the real-party-in-interest. III. PLAINTIFF FAILED TO ALLEGE EXISTENCE OF LEASE [CCP 430.10(e) (g) , ] A. The City of San Jose Code Enforcement Unit has deemed that the use of the premises as housing is a violation of local ordinances and state housing statutes [see Exhibit A], declaring it an illegally occupied, uninhabitable detached garage conversion that endangers the health and safety of the defendant, in violation of Municipal Code 17.20.920 A and Uniform Housing Code 1001.1. Consequently, the lease made between the parties constitutes a contract for an illegal purpose and no enforceable duties or rights arise under it [Shepard v. Lerner (1960) 182 Cal. App. 2d 746, 748-751, 6 Cal. Rptr. 433]. PLAINTIFF FAILED TO ALLEGE SERVICE OF 30-DAY AND 3-DAY NOTICE, AND TERMINATED THE ALLEGED TENANCY WITHOUT HAVING PROVIDED EITHER [CCP 430.10(e) ] A. Plaintiff did not serve the requisite 30-day and three-day notices on the defendant. Therefore, the tenancy was not terminated [see Roberts v. Redlich (1952) 111 CA2d 566, 568, 2444 P2d 933; Kriz v. Taylor (1979) 92 CA3d 302, 313, 154 CR 824 (The expiration of a notice to quit is the act that terminates the tenancy for the purposes of rent) moreover, in his complaint, the plaintiff ]; fails to allege that the required notices were served on the tenant and had expired [see Zucco v. Farullo (1918) 37 CA 562, 568, 174 P 929]. When an unlawful detainer action is based on the termination of a month-to-month tenancy, the complaint must allege (a) that written notice was served on the tenant declaring the tenancy terminated in 30 or 60 days, and (b) that 30 or 60 days PAGE 3 OF 7 1-12-CV-219272

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has passed since service of the notice [Civ. Code 1946, 1946.1; Code Civ. Proc. 1161(1), 1166(a) ]. (2) Furthermore, per Code Civ. Proc. 1166(a) (2), when the proceeding is based on the tenants nonpayment of rent, the complaint must allege (a) the fact of default and the amount of unpaid rent, (b) that a written notice was served on the tenant after the rental due date, stating the fact of default, and (c) that the notice stated the precise amount of rent due and demanded that the tenant pay the rent or quit the premises within 3 days [Baugh Consumers Assocs. (1966) 241 CA2d 672, 674, 50 CR 822; Code Civ. Proc. 1161(2), 1166(a) ]. (4) As to the notice itself, it must also state the name, telephone number, and address of the person to whom the rent payment shall be made, and either the usual days and hours that person will be available to receive it or the number of an account in a financial institution into which the payment may be made and the name and street address of the institution (which must be within five miles of the rental property) [Code Civ. Proc. 1161(2) Strict compliance ]. with this provision of the unlawful detainer statutes is mandatory [Baugh v. Consumers Assocs., supra; Code Civ. Proc. 1161(2) and, ]; for a multi-unit residential property, the lease must identify the property owner or agent authorized to manage the premises and receive process, all notices, and demands on behalf of the owner [Civ. Code 1961-1962.7]. B. The termination notice requirements must be strictly following in unlawful detainer actions. The statutory situations in which the remedy of unlawful detainer is available are exclusive, and the PAGE 4 OF 7 1-12-CV-219272

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statutory procedure must be strictly followed [Greene v Municipal Court (1975) 51 CA3d 446, 450, 124 CR 139 (Citation) Among other ]. statutory situations, a tenant is guilty of unlawful detainer for continuing in possession, without permission of the landlord, after default in payment of rent required by the lease or rental agreement. PREMATURE FILING OF COMPLAINT [CCP 430.10(e) ] A. An unlawful detainer cause of action arises on expiration of the period required to be specified in the termination notice [CCP 1161(2)-(5) A 30-day notice terminating a tenancy presumably ]. requires the tenant to vacate within the 30 days. Plaintiff filed the complaint without having first issued any of the requisite notices for termination of tenancy, and within a week and half of issuing the aforedescribed two-week notice to quit. INADEQUATE DESCRIPTION OF PREMISES [CCP 430.10(e) ] A. The complaint must describe the premises sufficiently to permit the sheriff or marshal to serve a writ of possession and physically evict the defendant [CCP 455, 1166(a) ]. Although alleging the (3) street address is usually sufficient [see Olcovich v Deremberg (1915) 27 CA 194, 149 P 375], if the designation of the street is not indicated or is incorrect, i.e., avenue instead of street, or, in this case, where the property in question is actually an unlawful conversion of a detached garage in violation of Municipal Code 17.20.050, and lacks the requisite certificate of occupancy in violation of San Jose Municipal Code 17.20.900 M and 1001.14 UHC. Without an actual address, the marshal or sheriff may decline to enforce a writ of possession, if issued. PAGE 5 OF 7 1-12-CV-219272

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VII. PLAINTIFF BREACHED CONVENANT TO PROVIDE HABITABLE PREMISES [CCP 1174.2] A. In its compliance order issued on March 13th, 2012 [see Exhibit A], the City of San Jose Department of Planning, Building and Code Enforcement declared the property in question to be substandard housing, in violation of Municipal Code 17.20.920 A and Uniform Housing Code 1001.1. VIII. THE ALLEGATIONS MADE IN THE COMPLAINT ARE UNCLEAR [CCP 430.10(f) ] A. Defendant cannot ascertain whether the plaintiff has filed a claim for unpaid rent or just for damages to the property, even though this point is moot because no monetary damages are not awarded in an unlawful detainer action when a lease is unenforceable [Cf. Espinosa v. Calva (2008) 169 Cal. App. 4th 1393, 1400, 87 Cal. Rptr. 3d 492 (trial court erred in awarding judgment for landlord for past-due rent when premises lacked certificate of occupancy); Gruzen v. Henry (1978) 84 Cal. App. 3d 515, 517-519, 148 Cal. Rptr. 573 (landlords failure to comply with ordinance rendered money judgment for rent improper, even though landlord was entitled to order of eviction) Although the amount requested by the ]. plaintiff suggests that it is both, Item 17c of the complaint (for past-due rent) is not checked. As a consequence, the defendant does not know for certain which defenses to apply, and what discovery to conduct. IX. AN ORDER TO VACATE HAS ALREADY BEEN ISSUED, OBVIATING A NEED FOR AN ORDER OF EVICTION [CCP 430.10(c) ] A. Per the aforementioned compliance order [Exhibit A], all tenants, including the defendant, must vacate the premises on or MEMORANDA PAGE 6 OF 7 1-12-CV-219272

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before April 15th, 2012. Therefore, an order of eviction would be duplicative, and the Court should abate the eviction until that time to allow compliance with the order to vacate. Dated: March 20th, 2012 By: X James Alan Bush Defendant in pro per // // // // // // // // // // // // // // // // // // // // // PAGE 7 OF 7 1-12-CV-219272

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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com Defendant in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION

Khoa Nguyen, Plaintiff, v. James Alan Bush, Defendant.

Case No. 1-12-CV-219272 EXHIBIT A CITY OF SAN JOSE DEPARTMENT OF BUILDING, PLANNING AND CODE ENFORCEMENT COMPLIANCE ORDER, ISSUED TO DEFENDANT ON MARCH 13TH, 2012

EXHIBIT A In support of the attached Demurrer to Complaint, the defendant hereby incorporates as Exhibit A a copy of the compliance order issued to the plaintiff by the City of San Jose Department of Building, Planning and Code Enforcement on March 13th, 2012, declaring the use of the property in question as housing a violation of local ordinances and state housing statutes, and further declaring that the illegally occupied property is and uninhabitable, and poses a danger to the health and safety of the defendant. EXHIBIT A PAGE 1 OF 6 1-12-CV-219272

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