1 2 3 4John Smith 4077 S. 20th st., Apt D Montebello, CA 90640 Defendant in Pro Per 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES GRACE HSU ) ) ) ) Plaintiff. ) ) vs. ) ) John Smith ) ) ) ) ____________________________________) Case No. 13U10138768 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT DATE OF HEARING: TIME OF HEARING: DEPT: TO PLAINTIFF AND HIS ATTORNEY OF RECORD HEREIN: PLEASE TAKE NOTICE THAT on ___________________________, 2013, at __________ in Department NO. _________________ at the above entitled court, Located at 111 N. Hill St., Rm 102, Los Angeles, CA 90012, DefendantsJohn Smith, Will and here by does move the Court for an order sustaining a general Demurrer to the unlawful detainer complaint 22 23 24 25 26 filed by Plaintiff without leave to amend. 1 the property manager Grace said “it’s in the attorney’s hands’ now”. 2013. the server Jeff claimed under penalty of perjury that he POSTED and MAILED the 3 day notice on August 12. On the Proof of Service Declaration. 2 . The Defendant had the funds available to pay the past due rent at the time of their correspondence with the manager. Sec. When the Defendant’s attempted to pay. the 5 6 7 8 9 10 11 12 memorandum of points of authorities. the attached demurrer. Defendant John Smith Generally Demurs to the unlawful detainer complaint filed 13 14 15 16 17 18 19 20 21 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 service declaration (Exhibit A). and upon such oral and documentary evidence as may be presented by Defendant upon the hearing of Demurrer. This demurrer is based upon this notice of demurrer.1 2 3 4 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. FIRST GROUND FOR DEMURRER 1. Defendant John Smith did however receive this notice by mail on August 17. 702(b) and thus is fatally defective and will not support an unlawful detainer action. 2013. The Defendant were within the stated Three Day Notice obligation to fulfill their past due rent as they did not 22 23 24 25 26 receive the 3 day notice until August 17. 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. 2013 (Exhibit A). 2. The Defendant attempted to contact the Manager Grace in order to resolve the past due rent notice. Mr. defendants never received the posting on their door. which 5 6 7 8 9 10 11 12 coensides with normal mail delivery time from the day it was postmarked. and claims he hand posted the 3 day notice on the door in the City of Montebello for no fee? 13 14 15 16 17 18 19 20 21 4. The postmark on the envelope which the notice was mailed in was postmarked August 15. The Defendant John Smith received the notice by mail on August 17. 3 . The Defendant never received this notice by posting as claimed in the proof of service declaration (Exhibit A).1 2 3 4 As stated above. 22 23 24 25 26 2. Exhibit B shows that he only mailed a copy of the Notice to Defendant John Smith. and will not support an unlawful detainer action. claims under penalty of perjury that he posted AND mailed a copy to the Defendant’s. which was THREE DAYS after the server claimed to have posted AND mailed the notice. Defendant John Smith never received a copy of the Notice either by posting nor by mail as required in Civil Code §1162 (a)(2). 3. Server Jeff . Thus the Three Day Notice is defective due to perjury on the part of the server Mr. claims to be based out of the City of Colton. However. 2013 (Exhibit B). 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. Proof of Service Declaration Mr. Code of Civil Procedure § 1162 SECOND GROUND FOR DEMURRER 1. Normal first class mail delivery does not take FIVE days from the city of San Bernardino to the city of Montebello. 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). 2. IN PRO PER ________________________________ John Smith DEFENDANT IN PRO PER 4 . THIRD GROUND FOR DEMMURRER 4 1. I declare under penalty of perjury under the laws of the State of California that the foregoing is 13 14 15 16 17 18 19 20 21 22 23 24 25 26 true and correct. this complaint is defective and must be dismissed without leave to amend.1 2 3 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). Because the Complaint in this action was filed on Defendant John Smith. 2013 _______________________________ John Smith DEFENDANT. and proper service was not done on Defendant John Smith under Civil Code §1162. Because the Complaint in this action was filed PRIOR to the allotted 3 days to pay rent or 5 6 7 8 9 10 11 12 pay on Defendant John Smith. this complaint is defective and must be dismissed without leave to amend. Dated: August 26. Demurrers must be noticed on at least 21 or 26 days’ notice.C. 2d 24 (1959). where the court held that a demurrer was proper where the incorporated 3-day notice was defective on its face. There is no proof of Service attached to the complaint and therefore it is 23 24 25 26 unknown to this court how and when this 3-day notice was served. Code of Civil Procedure § 1162 ”The notices required by Sections 1161 and 1161a may be served. See Hinman v. In the absence of anything with in the unlawful detainer statutes setting a shorter time. C. Thus it is Defective and will not support an unlawful detainer action. 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.3d.P.P. Delta did not overrule prior cases. such as C. 5 . Section 1177 incorporates the regular provisions of the Code of Civil 14 Procedure.App. California Rules of Court.C. 172 Cal. so C. Section 1005 requiring that motions be noticed on 21 day’s notice. 15 16 17 18 19 20 21 22 plus five days for mailing.P. The periods for noticing hearing on a demurrer are not stated in the unlawful detainer stautes. App.1033 (1983) suggests that a motion to quash is the remedy where a complaint fails to state a cause of action in unlawful detainer. either: 1. Wagnon. Although dicta in Delta Imports v 6 7 8 9 10 11 12 13 Municipal Court.1 2 3 4 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER DEFENDAMT’S DEMURRER IS PROPERLY BEFOR THE COURT a defendant in an unlawful detainer action may demur. By delivering a copy to the tenant personally. The Defendant never received this notice prior to its appearance in the unlawful detainer complaint. or. 146 Cal. specifies that demurrer shall be in accordance with section 1005.C. § 1170. The court sustained a dismissal following sustaining the demurer with out leave to amend. Rule 325(b). and also sending a copy through the mail addressed to the tenant at the place where the property is situated. by leaving a copy with some person of suitable age and discretion at either place. and from his or her usual place of business. and sending a copy through the mail addressed to the tenant at his or her place of residence. If such place of residence and business cannot be ascertained. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” 14 15 16 17 18 19 20 21 RELIEF REQUESTED WHEREFORE defendant prays judgment against plaintiff as follows: 1.00 to help pay for preparation fees and other expenses occurred during the process of this Demurrer. Service upon a subtenant may be made in the same manner. For statutory damages as permitted by law in the amount of $600. then by affixing a copy in a conspicuous place on the property. For such other and further relief as the Court deems just and proper. 6 .1 2 3 4 2. “On or before the day fixed for his appearance.” 4. if such person can be found. For the Costs of Suit incurred herein 3. This Demurrer is made pursuant to Code of Civil Procedure § 1170. and 22 23 24 25 26 4. and also delivering a copy to a person there residing. 5 6 7 8 9 10 11 12 13 3. That the Complaint be dismissed with prejudice and/or judgment entered in favor of defendant without leave to amend. or a person of suitable age or discretion there cannot be found. 2. the defendant may appear and answer or demur. If he or she is absent from his or her place of residence. or. California with postage thereon fully prepaid. 7 . my business/residence address is: On ______________. MEMORANDUM OF POINTS AND AUTHORITIES to the following parties: [ ] (By U.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 Dated: August 26. I served the foregoing document(s) described as: NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT. Mail) I deposited such envelope in the mail at Riverside.S. I am a resident of or employed in the county where the mailing occurred. Said transmission was reported complete and without error. [ ] (By Facsimile) I served a true and correct copy by facsimile during regular business hours to the number(s) listed above. 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. I am aware that on motion of the party served. 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. [ ] (By Personal Service) I caused such envelope to be delivered by hand via messenger service to the address above. 2013 _______________________________ John Smith DEFENDANT. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 2013. 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 DATED: ______________ _________________________________________ Print Name: 8 .