1 James Alan Bush

2967 Sherbrooke Way

2 San Jose, California 95127
(408) 569-1634
3

4 Defendant in pro per

8 SUPERIOR COURT OF CALIFORNIA

9 COUNTY OF SANTA CLARA

10 SAN JOSE DIVISION

11

12

13 Yvonne Ly, et al., Case No. 1-13-CV-242652

14 Plaintiffs, MEMORANDA IN SUPPORT OF DEMURRER TO

COMPLAINT
15 v.

16 James Alan Bush,

17 Defendant.

18

19 I. AUTHORITY FOR DEMURRER

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

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

22 sufficient to constitute a cause of action.”

23 II. PLAINTIFF FAILED TO ALLEGE SERVICE OF 30-DAY NOTICE, AND TERMINATED THE

24 ALLEGED TENANCY WITHOUT HAVING PROVIDED NOTICE [CODE CIV. PROC. § 430.10(e)]

25 A. Plaintiff did not serve the requisite 30-day notice on the defendant.

26 Therefore, the tenancy was not terminated [see Roberts v. Redlich

27 (1952) 111 CA2d 566, 568, 2444 P2d 933; Kriz v. Taylor (1979) 92 CA3d

28 302, 313, 154 CR 824 (“The expiration of a notice to quit is the act

MEMORANDA PAGE 1 OF 4
 1 that terminates the tenancy for the purposes of rent”)]; moreover, in

2 his complaint, the plaintiff fails to allege that the required notice

3 was served on the tenant and had expired [see Zucco v. Farullo (1918)

4 37 CA 562, 568, 174 P 929]. When an unlawful detainer action is based

5 on the termination of a month-to-month tenancy, the complaint must

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

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

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

9 Civ. Proc. §§ 1161(1), 1166(a)(2)].

10 B. The termination notice requirements must be strictly following in

11 unlawful detainer actions. The statutory situations in which the

12 remedy of unlawful detainer is available are exclusive, and the

13 statutory procedure must be strictly followed [Greene v. Municipal

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

15 As more fully explained in the declaration of the defendant,

16 attached to this motion, proper service of a notice of termination

17 of tenancy has not been achieved on the defendant. A landlord

18 is required by law to terminate a periodic tenancy by serving a

19 termination notice on the tenant that gives a notice period that is

20 at least as long as the term of the lease, i.e., 30 days [CCP § 1946].

21 Civil Code § 1946 provides that a tenancy for an unspecified

22 term (usually month-to-month) is deemed to be renewed automatically

23 as provided for in Civil Code § 1946.1, which states that tenancy

24 is deemed to be renewed each month unless one of the parties gives

25 written notice to the other of his intention to terminate same.

26 Although the plaintiffs gave a termination notice to the

27 defendant for February, 2013, by accepting a subsequent agreement to

28 extend the tenancy into March, 2013, the plaintiffs waived their right
MEMORANDA PAGE 2 OF 4
 1 to terminate the tenancy under that notice.

2 Because the termination notice was rescinded by the agreement,

3 both implicitly and explicitly, and because the plaintiffs agreed to

4 accept rent for March, 2013, the defendant detrimentally relied on the

5 extension.

6 C. A judgment entered without jurisdiction over the party subject to

7 that judgment is void [Sternbeck v. Buck (1957) 148 CA2d 829, 307 P2d

8 970]. Service of summons is a jurisdictional requirement, without

9 which the court has no jurisdiction in the action [Chaplin v. Superior

10 Court (1927) 81 CA 367, 253 P 954; CCP § 1917]. In an unlawful detainer

11 action, it is of particular importance that proper service of summons

12 be achieved [Greene v. Municipal Court (1975) 51 CA3d D446, 124 CR

13 139].

14 Defective service of summons is not service and confers no

15 jurisdiction over the party [Smith v. Jones (1917) 174 C 513, 163 P

16 890; Sternbeck v. Buck (1957)148 CA2d 829, 307 P2d 970]. Mere knowledge

17 of the action, absent voluntary appearance by the party, is not

18 sufficient for the court to assert its jurisdiction over the party

19 [Coulston v. Cooper (1966) 245 CA2d 866, 54 CR 302; Varra v. Superior

20 Court (1960) 181 CA2d 12, 4 CR 920; see CCP §§ 415.10-415.50].

21 California CCP §§ 415.10-415.50 govern the methods by which a

22 summons and complaint may be served on a defendant in an unlawful

23 detainer action, and states, in relevant part, that a summons and

24 complaint may be served only after proper notice of termination of

25 tenancy was given.

26 III. PREMATURE FILING OF COMPLAINT [CODE CIV. PROC. § 430.10(e)]

27 A. An unlawful detainer cause of action arises on expiration of the

28 period required to be specified in the termination notice [Code Civ.

MEMORANDA PAGE 3 OF 4
 1 Proc. § 1161(2)-(5)]. A 30-day notice terminating a tenancy presumably

2 requires the tenant to vacate within the 30 days. Plaintiff, having

3 agreed in February, 2013, to an extension of the lease up to and

4 including March, 2013, filed the complaint on March 13th, 2013, without

5 having first issued the requisite notice for termination of tenancy.

6 PRAYER FOR RELIEF

7 WHEREFORE, AND FOR ALL OF THE ABOVE REASONS, Defendant prays that this demurrer

8 be sustained without leave to amend, and that Plaintiffs take nothing by reason of

9 their complaint.

10 Dated: April 4th, 2013

11

12 Respectfully submitted,

13

14 James Alan Bush

Defendant in pro per
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