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John Smith

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4077 S. 20 th st., Apt D

Montebello, CA 90640

Defendant in Pro Per

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF LOS ANGELES

GRACE HSU

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Case No. 13U10138768

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NOTICE OF DEMURRER AND

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DEMURRER TO COMPLAINT

Plaintiff.

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MEMORANDUM OF POINTS

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AND AUTHORITIES IN SUPPORT

vs.

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OF DEMURRER TO COMPLAINT

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John Smith

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DATE OF HEARING:

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TIME OF HEARING:

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DEPT:

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TO PLAINTIFF AND HIS ATTORNEY OF RECORD HEREIN:

PLEASE TAKE NOTICE THAT on

in Department

, 2013, at

at the above entitled court, Located at 111

N. Hill St., Rm 102, Los Angeles, CA 90012, DefendantsJohn Smith, Will and here by does

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move the Court for an order sustaining a general Demurrer to the unlawful detainer complaint

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filed by Plaintiff without leave to amend.

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This Demurrer is made pursuant to Code of Civil Procedure § 1170 on the grounds that

the Three Day notice was issued to a bona fide tenant as described in S896, Sec. 702(b) and thus

is fatally defective and will not support an unlawful detainer action.

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This demurrer is based upon this notice of demurrer, the attached demurrer, the

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memorandum of points of authorities, and upon such oral and documentary evidence as may be

presented by Defendant upon the hearing of Demurrer.

DEMURRER TO PLAINTIFF’S COMPLAINT

Defendants John Smith”) hereby generally demurs to the unlawful detainer complaint

filed by Grace HSU (“Plaintiff”) on the following grounds;

FIRST GROUND FOR DEMURRER

1. Defendant John Smith Generally Demurs to the unlawful detainer complaint filed

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by Plaintiff on the grounds that the Three-day Notice alleged in the complaint was not

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properly served to the Defendant John Smith in accordance to Civil Code § 1162 (a)(2).

The Defendant never received this notice by posting as claimed in the proof of service

declaration (Exhibit A). Defendant John Smith

did however receive this notice by mail

on August 17, 2013.

The Defendant attempted to contact the Manager Grace in order to

resolve the past due rent notice. The Defendant had the funds available to pay the past

due rent at the time of their correspondence with the manager. The Defendant were

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within the stated Three Day Notice obligation to fulfill their past due rent as they did not

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receive the 3 day notice until August 17, 2013. When the Defendant’s attempted to pay,

the property manager Grace

said “it’s in the attorney’s hands’ now”.

2. On the Proof of Service Declaration, the server Jeff claimed under penalty of

perjury that he POSTED and MAILED the 3 day notice on August 12, 2013 (Exhibit A).

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As stated above, defendants never received the posting on their door. The postmark on

the envelope which the notice was mailed in was postmarked August 15, 2013 (Exhibit

B), which was THREE DAYS after the server claimed to have posted AND mailed the

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notice. The Defendant John Smith

received the notice by mail on August 17, which

coensides with normal mail delivery time from the day it was postmarked. Normal first

class mail delivery does not take FIVE days from the city of San Bernardino to the city of

Montebello.

3. Server Jeff , under penalty of perjury states on the Proof of Service Declaration that

he was not compensated for the service as Letter “D” for Fee of Service was left blank.

Mr. claims to be based out of the City of Colton, and claims he hand posted the 3 day

notice on the door in the City of Montebello for no fee?

4. Thus the Three Day Notice is defective due to perjury on the part of the server Mr.

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and will not support an unlawful detainer action, Code of Civil Procedure § 1162

SECOND GROUND FOR DEMURRER

1. Defendant John Smith Generally Demurs to the unlawful detainer complaint filed by

Plaintiff on the grounds that the Three-day Notice alleged in the complaint was not

properly served to the Defendant John Smith

in accordance to Civil Code § 1162

(a)(2). The Defendant never received this notice by posting as claimed in the proof of

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service declaration (Exhibit A).

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2. Proof of Service Declaration Mr. claims under penalty of perjury that he posted AND

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mailed a copy to the Defendant’s. However, Exhibit B shows that he only mailed a copy

of the Notice to Defendant John Smith. Defendant John Smith never received a copy

of the Notice either by posting nor by mail as required in Civil Code §1162 (a)(2).

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3. Thus the Three Day Notice is defective on Defendant John Smith due to improper/

Non-service as required by Civil Code §1162(a)(2).

THIRD GROUND FOR DEMMURRER

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1. Because the Complaint in this action was filed PRIOR to the allotted 3 days to pay rent or

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pay on Defendant John Smith, this complaint is defective and must be dismissed without

leave to amend.

2. Because the Complaint in this action was filed on Defendant John Smith, and proper

service was not done on Defendant John Smith

under Civil Code §1162, this complaint

is defective and must be dismissed without leave to amend.

I declare under penalty of perjury under the laws of the State of California that the foregoing is

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true and correct.

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Dated: August 26, 2013

John Smith

DEFENDANT, IN PRO PER

John Smith

DEFENDANT IN PRO PER

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

DEMURRER

DEFENDAMT’S DEMURRER IS PROPERLY BEFOR THE COURT a defendant in an

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unlawful detainer action may demur. C.C.P. § 1170. Although dicta in Delta Imports v

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Municipal Court, 146 Cal.App.3d.1033 (1983) suggests that a motion to quash is the remedy

where a complaint fails to state a cause of action in unlawful detainer, Delta did not overrule

prior cases. See Hinman v. Wagnon, 172 Cal. App. 2d 24 (1959), where the court held that a

demurrer was proper where the incorporated 3-day notice was defective on its face. The court

sustained a dismissal following sustaining the demurer with out leave to amend.

The periods for noticing hearing on a demurrer are not stated in the unlawful detainer

stautes, so C.C.P. Section 1177 incorporates the regular provisions of the Code of Civil

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Procedure, such as C.C.P. Section 1005 requiring that motions be noticed on 21 day’s notice,

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plus five days for mailing. Rule 325(b). California Rules of Court, specifies that demurrer shall

be in accordance with section 1005. In the absence of anything with in the unlawful detainer

statutes setting a shorter time. Demurrers must be noticed on at least 21 or 26 days’ notice.

Defendant Generally Demurs to the unlawful detainer complaint filed by Plaintiff on the

grounds that the Three-day Notice alleged in the complaint was not properly served to the

Defendant. The Defendant never received this notice prior to its appearance in the unlawful

detainer complaint. There is no proof of Service attached to the complaint and therefore it is

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unknown to this court how and when this 3-day notice was served. Thus it is Defective and will

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not support an unlawful detainer action. Code of Civil Procedure § 1162 ”The notices required

by Sections 1161 and 1161a may be served, either:

1. By delivering a copy to the tenant personally; or,

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2. If he or she is absent from his or her place of residence, and from his or her usual

place of business, by leaving a copy with some person of suitable age and discretion

at either place, and sending a copy through the mail addressed to the tenant at his or

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her place of residence; or,

3. If such place of residence and business cannot be ascertained, or a person of suitable

age or discretion there cannot be found, then by affixing a copy in a conspicuous

place on the property, and also delivering a copy to a person there residing, if such

person can be found; and also sending a copy through the mail addressed to the tenant

at the place where the property is situated. Service upon a subtenant may be made in

the same manner.”

4. This Demurrer is made pursuant to Code of Civil Procedure § 1170. On or before

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the day fixed for his appearance, the defendant may appear and answer or demur.”

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RELIEF REQUESTED

WHEREFORE defendant prays judgment against plaintiff as follows:

1. That the Complaint be dismissed with prejudice and/or judgment entered in favor

of defendant without leave to amend;

2. For the Costs of Suit incurred herein

3. For statutory damages as permitted by law in the amount of $600.00 to help pay for

preparation fees and other expenses occurred during the process of this Demurrer; and

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4. For such other and further relief as the Court deems just and proper.

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I declare under penalty of perjury under the laws of the State of California that the foregoing is

true and correct.

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Dated: August 26, 2013

John Smith

DEFENDANT, IN PRO PER

John Smith

DEFENDANT IN PRO PER

PROOF OF SERVICE

I am over the age of 18 and not a party to this action.

I am a resident of or employed in the county where the mailing occurred; my business/residence address is:

On

, 2013, I served the foregoing document(s) described as: NOTICE

OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES to the following parties:

[

] (By U.S. Mail) I deposited such envelope in the mail at Riverside, California with

postage thereon fully prepaid. I am aware that on motion of the party served,

service is presumed in valid in postal cancellation date or postage meter date is

more than one day after date of deposit for mailing in affidavit.

[

] (By Personal Service) I caused such envelope to be delivered by hand via messenger service to the address above;

[

] (By Facsimile) I served a true and correct copy by facsimile during regular business hours to the number(s) listed above. Said transmission was reported complete and

without error.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

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DATED:

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