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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 MOTION AND NOTICE OF MOTION TO STRIKE COMPLAINT FOR UNLAWFUL DETAINER Date: April 9th, 2012 9:15 AM Department: 19 Judge: Hon. Kenneth Barnum Action filed: February 24th, 2012 Trial Date: April 9th, 2012

NOTICE IS HEREBY GIVEN that, on April 9th, 2012, at 9:15 AM, or as soon thereafter as the matter can be heard, in Department 19 of the aboveentitled court, located at 191 North First Street, in San Jose, Defendant, James Alan Bush, will, and hereby does, move, in limine, pursuant to Code Civ. Proc. §§ 435 and 436 for an order striking the complaint on file herein. The motion will be made on the ground that the complaint does not truthfully allege that Plaintiff, Khoa Nguyen, has the legal capacity to sue (i.e., as owner of the premises), in violation of Code Civ. Proc. § 430.10(b). This motion will also be made on the ground thjat the request NOTICE PAGE 1 OF 2 1-12-CV-219272

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for back rent is improper, as is more fully explained in the attached memorandum of points and authorities. The motion will be based on this notice of motion, on the declaration of the plaintiff and the supporting memorandum served and filed herewith, on the records and files herein, and on such evidence as may be presented at the hearing on the motion, which includes, but may not be limited to, a certified document showing that ownership of the premises belongs to Theresa Ziemkowski, and not the defendant. Dated: April 5th, 2012 By: X James Alan Bush Defendant in pro per // // // // // // // // // // // // // // // // NOTICE 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 DECLARATION OF DEFENDANT IN SUPPORT OF MOTION TO STRIKE COMPLAINT FOR UNLAWFUL DETAINER

Judge Kenneth Barnumn

I, James Alan Bush, hereby declare: 1. I am the defendant in the above-captioned matter. I have personal knowledge of the facts stated in this declaration, and if called to testify, I could and would testify competently to the truth of the facts as stated herein. 2. On February 2nd, 2012, the plaintiff hand-delivered a notice stating that the apartment must be vacated for repairs and renovation. This notice, which preceded any such order of eviction and repairs by the City of San Jose, did not state that back rent was due, nor did it DECLARATION PAGE 1 OF 2 1-12-CV-219272

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specify any amount of rent due. It was neither preceded by nor followed by any other notice to quit, including the requisite 30-day or 3-day notices. Moreover, the unlawful detainer complaint was filed 23 days later. 3. The defendant admits to above-stated facts both in his complaint and in his testimony proferred on April 4th, 2012, in this court. 4. As to the matter of true ownership of the premises, on April 6th, 2012, I obtained from the Recorder’s Office of the County of Santa Clara a certified copy of the deed of trust, attached hereto as Exhibit “A”, which shows that the plaintiff has transfered ownership of the premises to Theresa Ziemkowski. 5. Consequently, the plaintiff is neither entitled to back rent, nor can he lawfully bring a suit for unlawful detainer. 6. Therefore, it is the request of this court that this case be dismissed against the defendant, and that the plaintiff take nothing by way of his complaint. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on April 4th, 2012, at San Jose, California. Dated: April 4th, 2012 X James Alan Bush Defendant in pro per // // // // // DECLARATION 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 EXHIBIT “A” TRANSFER OF DEED TO SUBJECT PREMISES BY PLAINTIFF TO REAL-PARTY-IN-INTEREST AND PROPERTY OWNER, THERESA ZIEMKOWSKI

EXHIBIT “A” In support of the attached Motion to Strike Plaintiff’s Complaint for Unlawful Detainer, the defendant hereby incorporates as Exhibit “A” a copy of the deed transfer, in which the plaintiff reassigned ownership of the subject premises to Theresa Ziemkowski, thereby relinquishing ownership of the property the defendant leases. As is more fully shown in the attached memorandum of points and authorities, case law and state statute establish that only the owner of the property being leased can bring an unlawful detainer action. EXHIBIT A PAGE 1 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 EXHIBIT A 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 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE Hearing: April 9th, 2012 9:15 a.m. Department: 10 Judge: Hon. Kenneth Barnum Action filed: February 24th, 2012 Trial Date: April 9th, 2012 9:15 a.m.

SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES I. PLAINTIFF FAILS TO ALLEGE 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 motion to strike under Code Civ. Proc. § 430.10(b), (f). In this case, the plaintiff failed to attach the requisite documents establishing ownership of the subject property to the complaint because, in MEMORANDA PAGE 1 OF 4 1-12-CV-219272

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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 to the unlawful detainer action as the real-party-in-interest. II. PLAINTIFF FAILS TO ALLEGE A BASIS FOR RECOVERY OF UNPAID RENT A. Code of Civil Procedure § 1174 allows damages to a successful plaintiff only when they are “occasioned” by an unlawful detainer [see Roberts v. Redlich (1952) 111 CA2d 566, 569, 244 P2d 933]. To avail itself of the summary proceedings, the landlord must state a complaint squarely within the terms of the statute and pray only for such damages as are allowed under it [Markham v. Fralick PAGE 2 OF 4 1-12-CV-219272

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(1934) 23 CA2d

221, 39 P2d 804]. To support a claim for rent,

an unlawful detainer complaint must be based on allegations of service of the statutorily required 3-day notice pay rent or quit [Code Civ. Proc. § 1161(2); Baugh v. Consumers Assocs. (1966) 241 CA2d 672, 675, 50 CR 822]. B. No rent at all can be recovered in an unlawful detainer action unless both the notice to quit and the complaint are based on a default in the payment of rent [Code Civ. Proc. § 1174(b); Harris v. Bissell (1921) 54 CSA 307, 313, 202 P 453]. A tenant is not guilty of unlawful detainer for nonpayment of rent unless a 3-day notice, stating the precise amount of rent, has been properly served [Code Civ. Proc. § 1161(1) An unlawful detainer complaint praying for ]. rent dfoes not state a cause of action unless service of a 3day notice is alleged [Samuels v. Singer (1934) 1 CA2ds 545, 549, 36 P2d 1098]. Therefore, when only a 30-day notice is alleged, no rent at all can ber recovered [Castle Park No. 5 v. Katherine (1979) 91 CA3d Supp 6, 11, 154 CR 498; Glouberman v. Coffery (1955) 138 CA2d Supp 906, 292 P2d 681]. C. In the present complaint, the plaintiff has not prayed for any specific amount of past due rent, but for damages in the amount of $600. In spite of this, on April 4th, 2012, in the trial, the court presumed that the amount of past due rent is $600, even though the monthly rent is $400, and therefore damages can only be in multiples of $400. Regardless, of its error in determining the correct amount of back rent due, there is no allegation of service of a 3-day notice. Because the complaint is based only on a defective 14-day notice, no rent can be awarded in this action. PAGE 3 OF 4 1-12-CV-219272

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The demand for rent should be stricken. III. AUTHORITY FOR MOTION TO STRIKE IN UNLAWFUL DETAINER ACTIONS A. A party may move to strike the whole or a part of any pleading [Code Civ. Proc. § 435(b) ]. A motion to strike may be used to (1) attack defects not apparent on the face of a pleading [White Lighting Co. v. Wolfson (1968) 68 C2d 336, 353, 66 CT 697]. A motion to strike is authorized in an unlawful detainer action [Saberi v. Bakhtiari (1985) 169 CA3d 509, 517, 215 CR 359]. B. The court may strike from any pleading any irrelevant, false, or improper matter [Code Civ. Proc. § 436(a) The court may also ]. strike all or any part of a pleading that is “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court” [Code Civ. Proc. § 436(b) The complaint ]. shall contain a statement of the facts constituting the cause of action in ordinary and concise language and a demand for judgment, stating the amount of damamges demanded [Code Civ. Proc. § 425.10(a) ]. Dated: April 5th, 2012 By: X James Alan Bush Defendant in pro per // // // // // // // PAGE 4 OF 4 1-12-CV-219272

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