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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 DEFENDANT’S 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 DEFENDANT’S 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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§ 430. 2012 9:15 AM Department: 19 Judge: Hon. v. Proc. § 430. DEMURRER PAGE 1 OF 2 1-12-CV-219272 . § 430. 2. on each of the following grounds: 1. § 430.10(b) ]. Proc. Plaintiff. Proc. 1-12-CV-219272 DEMURRER TO COMPLAINT Hearing: April 4th. Khoa Nguyen. James Alan Bush. 4. Defendant.com Defendant in pro per SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION Khoa Nguyen. California 95112 (408) 791-4866 theoknock@yahoo. 2012 Trial Date: not set DEMURRER TO COMPLAINT Defendant. 3. James Alan Bush. Case No. Failure to allege existence of lease [Code Civ.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 James Alan Bush 471 East Julian Street San Jose. 5. Plaintiff lacks legal capacity to sue [Code Civ.10(e). Socrates Manoukian Action filed: February 24th. Inadequate description of premises [Code Civ. Proc. hereby demurs to the complaint of Plaintiff. Failure to allege service of 3-day or 60-day notice [Code Civ.10(e) ]. Plaintiff breached convenant to provide habitable premises [Code Civ. (g) ].10(e) ].

§ 1174. obviating the need for an order of eviction. 6. Dated: March 20th. and.2]. 2012 By: X James Alan Bush Defendant in pro per // // // // // // // // // // // // // // // // // // // // // DEMURRER PAGE 2 OF 2 1-12-CV-219272 .1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Proc. An order to vacate has been issued by the City of San Jose.

Case No. § 430.” B.com Defendant in pro per SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION Khoa Nguyen. Socrates Manoukian Action filed: February 24th. Plaintiff.m. California Code Civ. California 95112 (408) 791-4866 theoknock@yahoo. 2012 Trial Date: not set SUPPORTING MEMORANDUM I. Proc. AUTHORITY FOR DEMURRER A.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 James Alan Bush 471 East Julian Street San Jose. // MEMORANDA PAGE 1 OF 7 1-12-CV-219272 . A party may also object to a pleading by demurrer if “[t] he pleading is uncertain.10(f) ]. Department: 19 Judge: Hon. Proc.10(e) permits a party to object to a pleading.” “Uncertain” includes ambiguous and unintelligible [Code Civ. 1-12-CV-219272 MEMORANDA IN SUPPORT OF DEFENDANT’S DEMURRER TO COMPLAINT Hearing: March 5th. James Alan Bush. 2012 8:30 a. v. Defendant. by demurrer. § 430. if “[t]he pleading does not state facts sufficient to constitute a cause of action.

Any unlawful detainer complaint that fails to state the true capacity of the landlord is subject to demurrer under Code Civ. the issue of capacity to sue will be based on whether the landlord is entitled to possession of the property.10(b) When the lease is between ]. he is not the real-party-in-interest. and not the plaintiff [see Exhibit “A”]. and does not otherwise have the right to possession. Plaintiff is not the legal owner of the property.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 II. he must join the true owner of the premises MEMORANDA PAGE 2 OF 7 1-12-CV-219272 . therefore. in fact. but the right to possession alone.10(b) ] A. In Cheney v. Trautzettle (1937) 9 C2d 158. § 1165]. Under the general provisions of the Code of Civil Procedure relating to proper parties in unlawful detainer actions [Code Civ. Plaintiff failed to attach the requisite documents establishing ownership of the subject property to the complaint because.10(b). 69 P2d 832. as is the lease between the defendant and the plaintiff. Therefore. Theresa Ziemkowski is the legal owner of the premises at issue. because the plaintiff does not have legal capacity to sue the defendant. then the owner must be joined as a plaintiff in the unlawful detainer action. but does not have the right to possession. § 430. the tenant and a resident manager who is not entitled to possession of the premises. PLAINTIFF LACKS LEGAL CAPACITY TO SUE [CCP §430. it was established that it is not the title that is determinative of whether the landlord can lawfully bring an unlawful detainer action. Proc. (f). § 430. Proc. Proc. the landlord must have the legal capacity to sue [see Code Civ. If a manager entered into the lease as an agent for the owner.

20. to the unlawful detainer action as the real-party-in-interest. When an unlawful detainer action is based on the termination of a month-to-month tenancy. Therefore. 2444 P2d 933. the complaint must allege (a) that written notice was served on the tenant declaring the tenancy terminated in 30 or 60 days.10(e) (g) . 2d 746. Taylor (1979) 92 CA3d 302.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDA IV. Consequently. 568. fails to allege that the required notices were served on the tenant and had expired [see Zucco v.1. Redlich (1952) 111 CA2d 566. in his complaint. III. 174 P 929]. and (b) that 30 or 60 days PAGE 3 OF 7 1-12-CV-219272 . in violation of Municipal Code § 17. 154 CR 824 (“The expiration of a notice to quit is the act that terminates the tenancy for the purposes of rent”) moreover.920 A and Uniform Housing Code § 1001. 568. 433]. 6 Cal. ] A. Plaintiff did not serve the requisite 30-day and three-day notices on the defendant. AND TERMINATED THE ALLEGED TENANCY WITHOUT HAVING PROVIDED EITHER [CCP §430. PLAINTIFF FAILED TO ALLEGE SERVICE OF 30-DAY AND 3-DAY NOTICE. 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”]. the tenancy was not terminated [see Roberts v.10(e) ] A. 313. the plaintiff ]. Lerner (1960) 182 Cal. the lease made between the parties constitutes a contract for an illegal purpose and no enforceable duties or rights arise under it [Shepard v. App. declaring it an illegally occupied. Farullo (1918) 37 CA 562. Rptr. uninhabitable detached garage conversion that endangers the health and safety of the defendant. 748-751. Kriz v. PLAINTIFF FAILED TO ALLEGE EXISTENCE OF LEASE [CCP §430.

Proc.7]. (1966) 241 CA2d 672. 1166(a) ]. ]. the complaint must allege (a) the fact of default and the amount of unpaid rent. Code Civ.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDA has passed since service of the notice [Civ. (b) that a written notice was served on the tenant after the rental due date. supra. Code §§ 1946. all notices. the lease must identify the property owner or agent authorized to manage the premises and receive process. 1946. (2) Furthermore. Consumers Assocs. The statutory situations in which the remedy of unlawful detainer is available are exclusive. 674. §1161(2). 1166(a) ]. Proc.. per Code Civ. Proc. § 1161(2) “Strict compliance ]. Proc. and address of the person to whom the rent payment shall be made. and demands on behalf of the owner [Civ. when the proceeding is based on the tenant’s nonpayment of rent. Code §§ 1961-1962. (4) As to the notice itself. B. with this provision of the unlawful detainer statutes is mandatory” [Baugh v. 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. it must also state the name. for a multi-unit residential property. Proc. stating the fact of default. § 1166(a) (2). 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. telephone number.1. Code Civ. 50 CR 822. §§ 1161(1). § 1161(2) and. The termination notice requirements must be strictly following in unlawful detainer actions. Code Civ. and the PAGE 4 OF 7 1-12-CV-219272 .

requires the tenant to vacate within the 30 days. V. 149 P 375]. Although alleging the (3) street address is usually sufficient [see Olcovich v Deremberg (1915) 27 CA 194. and lacks the requisite certificate of occupancy in violation of San Jose Municipal Code §§ 17.10(e) ] A. a tenant is guilty of unlawful detainer for continuing in possession.e. i. Plaintiff filed the complaint without having first issued any of the requisite notices for termination of tenancy. without permission of the landlord. where the property in question is actually an unlawful conversion of a detached garage in violation of Municipal Code § 17.20. Without an actual address.050. 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. in this case. if the designation of the street is not indicated or is incorrect.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDA VI.10(e) ] A. after default in payment of rent required by the lease or rental agreement.” or.. statutory procedure must be strictly followed [Greene v Municipal Court (1975) 51 CA3d 446. PREMATURE FILING OF COMPLAINT [CCP §430. and within a week and half of issuing the aforedescribed two-week notice to quit.900 M and 1001. the marshal or sheriff may decline to enforce a writ of possession. if issued. 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 ]. INADEQUATE DESCRIPTION OF PREMISES [CCP §430.20. 124 CR 139 (Citation) Among other ]. PAGE 5 OF 7 1-12-CV-219272 . statutory situations. 1166(a) ]. 450. “avenue” instead of “street.14 UHC.

the defendant does not know for certain which defenses to apply. 517-519. Building and Code Enforcement declared the property in question to be “substandard housing. Espinosa v. 3d 492 (trial court erred in awarding judgment for landlord for past-due rent when premises lacked certificate of occupancy). Henry (1978) 84 Cal.” in violation of Municipal Code § 17. Gruzen v. 2012 [see Exhibit “A”].920 A and Uniform Housing Code § 1001. plaintiff suggests that it is both. 87 Cal. Per the aforementioned compliance order [Exhibit “A”]. 148 Cal. Calva (2008) 169 Cal. Rptr. 573 (landlord’s failure to comply with ordinance rendered money judgment for rent improper. the City of San Jose Department of Planning.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 VII. OBVIATING A NEED FOR AN ORDER OF EVICTION [CCP § 430. 4th 1393. AN ORDER TO VACATE HAS ALREADY BEEN ISSUED. In its compliance order issued on March 13th. THE ALLEGATIONS MADE IN THE COMPLAINT ARE UNCLEAR [CCP §430. Rptr. PLAINTIFF BREACHED CONVENANT TO PROVIDE HABITABLE PREMISES [CCP §1174. even though this point is moot because no monetary damages are not awarded in an unlawful detainer action when a lease is unenforceable [Cf. App. Defendant cannot ascertain whether the plaintiff has filed a claim for unpaid rent or just for damages to the property. must vacate the premises on or MEMORANDA PAGE 6 OF 7 1-12-CV-219272 . including the defendant.20. IX.10(c) ] A. Item 17c of the complaint (for past-due rent) is not checked. 1400.1. even though landlord was entitled to order of eviction) Although the amount requested by the ]. App. As a consequence.10(f) ] A. all tenants.2] A. and what discovery to conduct. VIII. 3d 515.

Dated: March 20th. an order of eviction would be duplicative. 2012 By: X James Alan Bush Defendant in pro per // // // // // // // // // // // // // // // // // // // // // PAGE 7 OF 7 1-12-CV-219272 . and the Court should abate the eviction until that time to allow compliance with the order to vacate. Therefore. 2012.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDA before April 15th.

com Defendant in pro per SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION Khoa Nguyen. Planning and Code Enforcement on March 13th. PLANNING AND CODE ENFORCEMENT COMPLIANCE ORDER. ISSUED TO DEFENDANT ON MARCH 13TH.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 James Alan Bush 471 East Julian Street San Jose. Case No. and poses a danger to the health and safety of the defendant. EXHIBIT A PAGE 1 OF 6 1-12-CV-219272 . 2012 EXHIBIT “A” In support of the attached Demurrer to Complaint. 1-12-CV-219272 EXHIBIT “A” CITY OF SAN JOSE DEPARTMENT OF BUILDING. and further declaring that the illegally occupied property is and uninhabitable. 2012. declaring the use of the property in question as housing a violation of local ordinances and state housing statutes. Plaintiff. Defendant. California 95112 (408) 791-4866 theoknock@yahoo. James Alan Bush. v. 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.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT A PAGE 2 OF 6 1-12-CV-219272 .

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT A PAGE 3 OF 6 1-12-CV-219272 .

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT A PAGE 4 OF 6 1-12-CV-219272 .

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT A PAGE 5 OF 6 1-12-CV-219272 .

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT A PAGE 6 OF 6 1-12-CV-219272 .