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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,

MOTION AND NOTICE OF MOTION TO STRIKE COMPLAINT FOR UNLAWFUL DETAINER

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v.

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James Alan Bush,

Date: April 9th, 2012 9:15 AM Department: 19 Judge: Hon. Kenneth Barnum

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Defendant.

Action filed: February 24th, 2012

Trial Date: April 9th, 2012

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NOTICE IS HEREBY GIVEN that, on April 9th, 2012, at 9:15 AM, or as soon

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thereafter as the matter can be heard, in Department 19 of the above-

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entitled court, located at 191 North First Street, in San Jose, Defendant,

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James Alan Bush, will, and hereby does, move, in limine, pursuant to

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Code Civ. Proc. §§ 435 and 436 for an order striking the complaint on file

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herein. The motion will be made on the ground that the complaint does

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not truthfully allege that Plaintiff, Khoa Nguyen, has the legal capacity

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to sue (i.e., as owner of the premises), in violation of Code Civ. Proc.

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§ 430.10(b). This motion will also be made on the ground thjat the request

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for back rent is improper, as is more fully explained in the attached

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memorandum of points and authorities.

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The motion will be based on this notice of motion, on the declaration

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of the plaintiff and the supporting memorandum served and filed herewith,

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on the records and files herein, and on such evidence as may be presented

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at the hearing on the motion, which includes, but may not be limited to,

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a certified document showing that ownership of the premises belongs to

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Theresa Ziemkowski, and not the defendant.

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Dated: April 5th, 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,

DECLARATION OF DEFENDANT IN SUPPORT

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v.

OF MOTION TO STRIKE COMPLAINT FOR UNLAWFUL DETAINER

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James Alan Bush,

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Defendant.

 

Judge Kenneth Barnumn

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I, James Alan Bush, hereby declare:

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  • 1. I am the defendant in the above-captioned matter. I have personal

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knowledge of the facts stated in this declaration, and if called to

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testify, I could and would testify competently to the truth of the

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facts as stated herein.

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  • 2. On February 2nd, 2012, the plaintiff hand-delivered a notice stating

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that the apartment must be vacated for repairs and renovation. This

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notice, which preceded any such order of eviction and repairs by the

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City of San Jose, did not state that back rent was due, nor did it

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specify any amount of rent due. It was neither preceded by nor followed

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by any other notice to quit, including the requisite 30-day or 3-day

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notices. Moreover, the unlawful detainer complaint was filed 23 days

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later.

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  • 3. The defendant admits to above-stated facts both in his complaint and

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in his testimony proferred on April 4th, 2012, in this court.

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  • 4. As to the matter of true ownership of the premises, on April 6th,

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2012, I obtained from the Recorder’s Office of the County of Santa

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Clara a certified copy of the deed of trust, attached hereto as Exhibit

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“A”, which shows that the plaintiff has transfered ownership of the

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premises to Theresa Ziemkowski.

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  • 5. Consequently, the plaintiff is neither entitled to back rent, nor can

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he lawfully bring a suit for unlawful detainer.

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  • 6. Therefore, it is the request of this court that this case be dismissed

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against the defendant, and that the plaintiff take nothing by way of

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his complaint.

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I declare under penalty of perjury under the laws of the State

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of California that the foregoing is true and correct, and that this

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declaration was executed on April 4th, 2012, at San Jose, California.

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Dated: April 4th, 2012

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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

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,

EXHIBIT “A”

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v.

TRANSFER OF DEED TO SUBJECT PREMISES

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James Alan Bush,

BY PLAINTIFF TO REAL-PARTY-IN-INTEREST AND PROPERTY OWNER, THERESA ZIEMKOWSKI

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Defendant.

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EXHIBIT “A”

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In support of the attached Motion to Strike Plaintiff’s Complaint for

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Unlawful Detainer, the defendant hereby incorporates as Exhibit “A” a copy

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of the deed transfer, in which the plaintiff reassigned ownership of the

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subject premises to Theresa Ziemkowski, thereby relinquishing ownership of

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the property the defendant leases.

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As is more fully shown in the attached memorandum of points and

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authorities, case law and state statute establish that only the owner of

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the property being leased can bring an unlawful detainer action.

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1

James Alan Bush 471 East Julian Street

 

2

San Jose, California 95112 (408) 791-4866

3

theoknock@yahoo.com

4

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,

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE

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v.

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James Alan Bush,

Hearing: April 9th, 2012 9:15 a.m. Department: 10 Judge: Hon. Kenneth Barnum

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Defendant.

Action filed: February 24th, 2012

 

Trial Date: April 9th, 2012 9:15 a.m.

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SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES

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I.

PLAINTIFF FAILS TO ALLEGE 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 motion

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to strike under Code Civ. Proc. § 430.10(b), (f). In this case, the

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plaintiff failed to attach the requisite documents establishing

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ownership of the subject property to the complaint because, in

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fact, Theresa Ziemkowski is the legal owner of the premises at

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issue, and not the plaintiff [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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II. PLAINTIFF FAILS TO ALLEGE A BASIS FOR RECOVERY OF UNPAID RENT

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A. Code of Civil Procedure § 1174 allows damages to a successful

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plaintiff only when they are “occasioned” by an unlawful detainer

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[see Roberts v. Redlich (1952) 111 CA2d 566, 569, 244 P2d 933]. To

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avail itself of the summary proceedings, the landlord must state

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a complaint squarely within the terms of the statute and pray

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only for such damages as are allowed under it [Markham v. Fralick

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(1934) 23 CA2d

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

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an unlawful detainer complaint must be based on allegations of

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service of the statutorily required 3-day notice pay rent or quit

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[Code Civ. Proc. § 1161(2); Baugh v. Consumers Assocs. (1966) 241

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CA2d 672, 675, 50 CR 822].

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  • B. No rent at all can be recovered in an unlawful detainer action

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unless both the notice to quit and the complaint are based on a

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default in the payment of rent [Code Civ. Proc. § 1174(b); Harris v.

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Bissell (1921) 54 CSA 307, 313, 202 P 453]. A tenant is not guilty

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of unlawful detainer for nonpayment of rent unless a 3-day notice,

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stating the precise amount of rent, has been properly served [Code

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Civ. Proc. § 1161(1)]. An unlawful detainer complaint praying for

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rent dfoes not state a cause of action unless service of a 3day

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notice is alleged [Samuels v. Singer (1934) 1 CA2ds 545, 549, 36

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P2d 1098]. Therefore, when only a 30-day notice is alleged, no rent

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at all can ber recovered [Castle Park No. 5 v. Katherine (1979) 91

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CA3d Supp 6, 11, 154 CR 498; Glouberman v. Coffery (1955) 138 CA2d

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Supp 906, 292 P2d 681].

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  • C. In the present complaint, the plaintiff has not prayed for any

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specific amount of past due rent, but for damages in the amount

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of $600. In spite of this, on April 4th, 2012, in the trial, the

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court presumed that the amount of past due rent is $600, even

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though the monthly rent is $400, and therefore damages can only

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be in multiples of $400. Regardless, of its error in determining

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the correct amount of back rent due, there is no allegation of

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service of a 3-day notice. Because the complaint is based only on

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a defective 14-day notice, no rent can be awarded in this action.

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The demand for rent should be stricken.

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III. AUTHORITY FOR MOTION TO STRIKE IN UNLAWFUL DETAINER ACTIONS

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  • A. A party may move to strike the whole or a part of any pleading

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[Code Civ. Proc. § 435(b)(1)]. A motion to strike may be used to

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attack defects not apparent on the face of a pleading [White

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Lighting Co. v. Wolfson (1968) 68 C2d 336, 353, 66 CT 697]. A motion

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to strike is authorized in an unlawful detainer action [Saberi v.

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Bakhtiari (1985) 169 CA3d 509, 517, 215 CR 359].

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  • B. The court may strike from any pleading any irrelevant, false,

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or improper matter [Code Civ. Proc. § 436(a)]. The court may also

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strike all or any part of a pleading that is “not drawn or filed

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in conformity with the laws of this state, a court rule, or an

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order of the court” [Code Civ. Proc. § 436(b)]. The complaint

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shall contain a statement of the facts constituting the cause

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of action in ordinary and concise language and a demand for

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judgment, stating the amount of damamges demanded [Code Civ. Proc.

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§ 425.10(a)].

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Dated: April 5th, 2012

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By: X

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James Alan Bush Defendant in pro per

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