This motion was not even heard, and the trial proceeded, at which I lost. It would have been won, if the judge decided to hear it.Judge Barnum said it "must have been late." It was not. The clerk calendars ex parte motions hearings only when all the requisite paperwork is filed. And, they only calendar these things at the time of the hearing, so there's no date or time to miss. You simply walk into the clerk's office at 8:15, file the paperwork, and then go to the courtroom to have it heard.
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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 NOTICE PAGE 1 OF 2 1-12-CV-219272 NOTICE IS HEREBY GIVEN that, on April 9th, 2012, at 8:30 AM, or as soon thereafter as the matter can be heard, in Department 10 of the above-entitled court, located at 191 North First Street, in San Jose, Defendant, James Alan Bush, will, and hereby does, move, ex parte, 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), as required by Code Civ. Proc. § 430.10(b), and thus the complaint should be deemed invalid. James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 [email protected]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 EX PARTE MOTION TO STRIKE COMPLAINT FOR UNLAWFUL DETAINER Date: April 9th, 2012 8:30 AM Department: 10 Judge: Hon. Kenneth Barnum Action filed: February 24th, 2012 Trial Date: April 9th, 2012
Transcript
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NOTICE PAGE 1 OF 2 1-12-CV-219272
NOTICE IS HEREBY GIVEN that, on April 9th, 2012, at 8:30 AM, or as
soon thereafter as the matter can be heard, in Department 10 of the
above-entitled court, located at 191 North First Street, in San Jose,
Defendant, James Alan Bush, will, and hereby does, move, ex parte,
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), as required by Code
Civ. Proc. § 430.10(b), and thus the complaint should be deemed invalid.
James Alan Bush471 East Julian StreetSan Jose, California 95112(408) [email protected]
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 EX PARTE MOTION TO STRIKE COMPLAINT FOR UNLAWFUL DETAINER
Date: April 9th, 2012 8:30 AMDepartment: 10
Judge: Hon. Kenneth BarnumAction filed: February 24th, 2012
Trial Date: April 9th, 2012
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NOTICE PAGE 2 OF 2 1-12-CV-219272
This motion will also be made on the ground thjat the request 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
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DECLARATION PAGE 1 OF 2 1-12-CV-219272
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
James Alan Bush471 East Julian StreetSan Jose, California 95112(408) [email protected]
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
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DECLARATION PAGE 2 OF 2 1-12-CV-219272
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
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EXHIBIT A PAGE 1 OF 2 1-12-CV-219272
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.
James Alan Bush471 East Julian StreetSan Jose, California 95112(408) [email protected]
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
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EXHIBIT A PAGE 2 OF 2 1-12-CV-219272
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MEMORANDA PAGE 1 OF 4 1-12-CV-219272
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
James Alan Bush471 East Julian StreetSan Jose, California 95112(408) [email protected]
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 BarnumAction filed: February 24th, 2012
Trial Date: April 9th, 2012 9:15 a.m.
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MEMORANDA PAGE 2 OF 4 1-12-CV-219272
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
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MEMORANDA PAGE 3 OF 4 1-12-CV-219272
(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
