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James Alan Bush 471 East Julian Street

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San Jose, California 95112 (408) 791-4866

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theoknock@yahoo.com

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Defendant in pro per

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SUPERIOR COURT OF CALIFORNIA

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COUNTY OF SANTA CLARA

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CIVIL DIVISION

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Khoa Nguyen,

 

Case No. 1-12-CV-219272

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Plaintiff,

NOTICE OF HEARING ON DEFENDANT’S DEMURRER TO COMPLAINT

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v.

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James Alan Bush,

Hearing: April 4th, 2012 9:15 AM Department: 19 Judge: Hon. Socrates Manoukian Action filed: February 24th, 2012 Trial Date: Not set

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Defendant.

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NOTICE OF HEARING ON DEFENDANT’S DEMURRER TO COMPLAINT

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NOTICE IS HEREBY GIVEN that the demurrer to the complaint made by

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Defendant, James Alan Bush, a copy of which is served herewith, has been

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set for hearing on April 4th, 2012, at 9:15 AM, or as soon thereafter as

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the matter can be heard, in Department 19 of the above-entitled court,

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located at 191 North First Street, in San Jose.

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Dated: March 1st, 2012

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By: X

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James Alan Bush Defendant in pro per

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James Alan Bush 471 East Julian Street

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San Jose, California 95112 (408) 791-4866

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theoknock@yahoo.com

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Defendant in pro per

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SUPERIOR COURT OF CALIFORNIA

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COUNTY OF SANTA CLARA

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CIVIL DIVISION

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Khoa Nguyen,

Case No. 1-12-CV-219272

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Plaintiff,

DEMURRER TO COMPLAINT

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v.

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James Alan Bush,

Hearing: April 4th, 2012 9:15 AM Department: 19 Judge: Hon. Socrates Manoukian Action filed: February 24th, 2012 Trial Date: not set

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Defendant.

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DEMURRER TO COMPLAINT

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Defendant, James Alan Bush, hereby demurs to the complaint of

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Plaintiff, Khoa Nguyen, on each of the following grounds:

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1. Plaintiff lacks legal capacity to sue [Code Civ. Proc. § 430.10(b)];

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2. Failure to allege existence of lease [Code Civ. Proc. § 430.10(e), (g)];

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3. Inadequate description of premises [Code Civ. Proc. § 430.10(e)];

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4. Failure to allege service of 3-day or 60-day notice [Code Civ.

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Proc. § 430.10(e)];

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5. Plaintiff breached convenant to provide habitable premises [Code Civ.

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Proc. § 1174.2]; and,

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6. An order to vacate has been issued by the City of San Jose, obviating

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the need for an order of eviction.

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Dated: March 20th, 2012

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By: X

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James Alan Bush Defendant in pro per

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1

James Alan Bush 471 East Julian Street

 

2

San Jose, California 95112 (408) 791-4866

 

3

theoknock@yahoo.com

 

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Defendant in pro per

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SUPERIOR COURT OF CALIFORNIA

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COUNTY OF SANTA CLARA

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CIVIL DIVISION

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Khoa Nguyen,

 

Case No. 1-12-CV-219272

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Plaintiff,

MEMORANDA IN SUPPORT OF DEFENDANT’S DEMURRER TO COMPLAINT

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v.

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James Alan Bush,

 

Hearing: March 5th, 2012 8:30 a.m. Department: 19 Judge: Hon. Socrates Manoukian Action filed: February 24th, 2012 Trial Date: not set

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Defendant.

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SUPPORTING MEMORANDUM

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I.

AUTHORITY FOR DEMURRER

 

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A.

California Code Civ. Proc. § 430.10(e) permits a party to object to

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a

pleading, by demurrer, if “[t]he pleading does not state facts

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sufficient to constitute a cause of action.”

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B.

A

party may also object to a pleading by demurrer if “[t]

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he pleading is uncertain.” “Uncertain” includes ambiguous and

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unintelligible [Code Civ. Proc. § 430.10(f)].

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II. PLAINTIFF LACKS LEGAL CAPACITY TO SUE [CCP §430.10(b)]

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A. Plaintiff is not the legal owner of the property, and does not

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otherwise have the right to possession; therefore, he is not the

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real-party-in-interest. Any unlawful detainer complaint that fails

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to state the true capacity of the landlord is subject to demurrer

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under Code Civ. Proc. § 430.10(b), (f). Plaintiff failed to attach

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the requisite documents establishing ownership of the subject

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property to the complaint because, in fact, Theresa Ziemkowski is

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the legal owner of the premises at issue, and not the plaintiff

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[see Exhibit “A”].

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Under the general provisions of the Code of Civil Procedure

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relating to proper parties in unlawful detainer actions

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[Code Civ. Proc. § 1165], the landlord must have the legal capacity

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to sue [see Code Civ. Proc. § 430.10(b)]. When the lease is between

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the tenant and a resident manager who is not entitled to possession

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of the premises, as is the lease between the defendant and the

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plaintiff, the issue of capacity to sue will be based on whether

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the landlord is entitled to possession of the property. In Cheney

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v. Trautzettle (1937) 9 C2d 158, 69 P2d 832, it was established that

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it is not the title that is determinative of whether the landlord

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can lawfully bring an unlawful detainer action, but the right to

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possession alone. If a manager entered into the lease as an agent

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for the owner, but does not have the right to possession, then

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the owner must be joined as a plaintiff in the unlawful detainer

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action.

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Therefore, because the plaintiff does not have legal capacity

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to sue the defendant, he must join the true owner of the premises

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to the unlawful detainer action as the real-party-in-interest.

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III. PLAINTIFF FAILED TO ALLEGE EXISTENCE OF LEASE [CCP §430.10(e),(g)]

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A. The City of San Jose Code Enforcement Unit has deemed that the use

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of the premises as housing is a violation of local ordinances and

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state housing statutes [see Exhibit “A”], declaring it an illegally

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occupied, uninhabitable detached garage conversion that endangers

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the health and safety of the defendant, in violation of Municipal

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Code § 17.20.920 A and Uniform Housing Code § 1001.1. Consequently,

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the lease made between the parties constitutes a contract for an

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illegal purpose and no enforceable duties or rights arise under it

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[Shepard v. Lerner (1960) 182 Cal. App. 2d 746, 748-751, 6 Cal. Rptr.

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433].

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IV.

PLAINTIFF FAILED TO ALLEGE SERVICE OF 30-DAY AND 3-DAY NOTICE, AND

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TERMINATED THE ALLEGED TENANCY WITHOUT HAVING PROVIDED EITHER [CCP

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§430.10(e)]

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A. Plaintiff did not serve the requisite 30-day and three-day notices

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on the defendant. Therefore, the tenancy was not terminated [see

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Roberts v. Redlich (1952) 111 CA2d 566, 568, 2444 P2d 933; Kriz

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v. Taylor (1979) 92 CA3d 302, 313, 154 CR 824 (“The expiration of

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a notice to quit is the act that terminates the tenancy for the

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purposes of rent”)]; moreover, in his complaint, the plaintiff

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fails to allege that the required notices were served on the

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tenant and had expired [see Zucco v. Farullo (1918) 37 CA 562,

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568, 174 P 929]. When an unlawful detainer action is based on the

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termination of a month-to-month tenancy, the complaint must allege

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(a) that written notice was served on the tenant declaring the

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tenancy terminated in 30 or 60 days, and (b) that 30 or 60 days

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has passed since service of the notice [Civ. Code §§ 1946, 1946.1;

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Code Civ. Proc. §§ 1161(1), 1166(a)(2)].

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Furthermore, per Code Civ. Proc. § 1166(a)(2), when the

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proceeding is based on the tenant’s nonpayment of rent, the

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complaint must allege (a) the fact of default and the amount of

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unpaid rent, (b) that a written notice was served on the tenant

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after the rental due date, stating the fact of default, and

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(c) that the notice stated the precise amount of rent due and

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demanded that the tenant pay the rent or quit the premises within

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3 days [Baugh Consumers Assocs. (1966) 241 CA2d 672, 674, 50 CR 822;

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Code Civ. Proc. §1161(2), 1166(a)(4)].

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As to the notice itself, it must also state the name, telephone

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number, and address of the person to whom the rent payment shall

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be made, and either the usual days and hours that person will be

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available to receive it or the number of an account in a financial

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institution into which the payment may be made and the name and

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street address of the institution (which must be within five miles of

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the rental property) [Code Civ. Proc. § 1161(2)]. “Strict compliance

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with this provision of the unlawful detainer statutes is mandatory”

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[Baugh v. Consumers Assocs., supra; Code Civ. Proc. § 1161(2)]; and,

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for a multi-unit residential property, the lease must identify

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the property owner or agent authorized to manage the premises and

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receive process, all notices, and demands on behalf of the owner

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[Civ. Code §§ 1961-1962.7].

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B. The termination notice requirements must be strictly following in

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unlawful detainer actions. The statutory situations in which the

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remedy of unlawful detainer is available are exclusive, and the

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statutory procedure must be strictly followed [Greene v Municipal

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Court (1975) 51 CA3d 446, 450, 124 CR 139 (Citation)]. Among other

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statutory situations, a tenant is guilty of unlawful detainer for

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continuing in possession, without permission of the landlord,

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after default in payment of rent required by the lease or rental

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agreement.

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V.

PREMATURE FILING OF COMPLAINT [CCP §430.10(e)]

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A.

An unlawful detainer cause of action arises on expiration of the

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period required to be specified in the termination notice [CCP

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§1161(2)-(5)]. A 30-day notice terminating a tenancy presumably

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requires the tenant to vacate within the 30 days. Plaintiff filed

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the complaint without having first issued any of the requisite

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notices for termination of tenancy, and within a week and half of

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issuing the aforedescribed two-week notice to quit.

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VI. INADEQUATE DESCRIPTION OF PREMISES [CCP §430.10(e)]

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A.

The complaint must describe the premises sufficiently to permit the

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sheriff or marshal to serve a writ of possession and physically

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evict the defendant [CCP §§455, 1166(a)(3)]. Although alleging the

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street address is usually sufficient [see Olcovich v Deremberg

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(1915) 27 CA 194, 149 P 375], if the designation of the street is

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not indicated or is incorrect, i.e., “avenue” instead of “street,”

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or, in this case, where the property in question is actually an

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unlawful conversion of a detached garage in violation of Municipal

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Code § 17.20.050, and lacks the requisite certificate of occupancy

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in violation of San Jose Municipal Code §§ 17.20.900 M and 1001.14

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UHC. Without an actual address, the marshal or sheriff may decline

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to enforce a writ of possession, if issued.

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VII. PLAINTIFF BREACHED CONVENANT TO PROVIDE HABITABLE PREMISES

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[CCP §1174.2]

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A.

In its compliance order issued on March 13th, 2012 [see

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Exhibit “A”], the City of San Jose Department of Planning,

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Building and Code Enforcement declared the property in question

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to be “substandard housing,” in violation of Municipal Code §

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17.20.920 A and Uniform Housing Code § 1001.1.

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VIII. THE ALLEGATIONS MADE IN THE COMPLAINT ARE UNCLEAR [CCP §430.10(f)]

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A.

Defendant cannot ascertain whether the plaintiff has filed a claim

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for unpaid rent or just for damages to the property, even though

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this point is moot because no monetary damages are not awarded

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in an unlawful detainer action when a lease is unenforceable

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[Cf. Espinosa v. Calva (2008) 169 Cal. App. 4th 1393, 1400, 87 Cal.

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Rptr. 3d 492 (trial court erred in awarding judgment for landlord

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for past-due rent when premises lacked certificate of occupancy);

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Gruzen v. Henry (1978) 84 Cal. App. 3d 515, 517-519, 148 Cal. Rptr.

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573 (landlord’s failure to comply with ordinance rendered money

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judgment for rent improper, even though landlord was entitled

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to order of eviction)]. Although the amount requested by the

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plaintiff suggests that it is both, Item 17c of the complaint (for

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past-due rent) is not checked. As a consequence, the defendant

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does not know for certain which defenses to apply, and what

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discovery to conduct.

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IX. AN ORDER TO VACATE HAS ALREADY BEEN ISSUED, OBVIATING A NEED FOR AN

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ORDER OF EVICTION [CCP § 430.10(c)]

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A.

Per the aforementioned compliance order [Exhibit “A”], all

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tenants, including the defendant, must vacate the premises on or

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before April 15th, 2012. Therefore, an order of eviction would be

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duplicative, and the Court should abate the eviction until that

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time to allow compliance with the order to vacate.

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Dated: March 20th, 2012

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By: X

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James Alan Bush Defendant in pro per

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1

James Alan Bush 471 East Julian Street

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San Jose, California 95112 (408) 791-4866

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theoknock@yahoo.com

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Defendant in pro per

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SUPERIOR COURT OF CALIFORNIA

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COUNTY OF SANTA CLARA

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CIVIL DIVISION

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Khoa Nguyen,

Case No. 1-12-CV-219272

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Plaintiff,

EXHIBIT “A”

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v.

CITY OF SAN JOSE DEPARTMENT OF BUILDING, PLANNING AND CODE ENFORCEMENT COMPLIANCE ORDER, ISSUED TO DEFENDANT ON MARCH 13TH, 2012

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James Alan Bush,

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Defendant.

 

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EXHIBIT “A”

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In support of the attached Demurrer to Complaint, the defendant hereby

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incorporates as Exhibit “A” a copy of the compliance order issued to the

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plaintiff by the City of San Jose Department of Building, Planning and

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Code Enforcement on March 13th, 2012, declaring the use of the property

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in question as housing a violation of local ordinances and state housing

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statutes, and further declaring that the illegally occupied property is

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and uninhabitable, and poses a danger to the health and safety of the

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defendant.

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