This post is currently in development, as the transcripts of the trial are still being prepared. Until a notice is posted in the usual places saying it's done, it's not fit to read. In the meantime, enjoy...
The Devil made him do it. Literally.
In the trial for my eviction from the nexus of hyperdimensional portals at 471 Julian Street in San Jose, a cloaked centurion demon stood over the right shoulder of Judge Kenneth Barnum and told him how to rule—and which laws to break—in order to win an eviction case in which the demon sided with Khoa Nguyen.
The laws broken in order to effect my eviction were each and every one.
First, Judge Barnum allowed a man who is not the landlord or owner of the property to bring the eviction case, and that is against the law, specifically:
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
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.
2 - Unlawful Detainer Complaint
The Devil made him do it. Literally.
In the trial for my eviction from the nexus of hyperdimensional portals at 471 Julian Street in San Jose, a cloaked centurion demon stood over the right shoulder of Judge Kenneth Barnum and told him how to rule—and which laws to break—in order to win an eviction case in which the demon sided with Khoa Nguyen.
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| A still frame showing a cloaked demon (left) standing in a doorway at 650 South Fifth Street in San Jose, which is similar to the cloaked centurion demon who guided Judge Barnum's decisions in my eviction trial (sepia color mode with Curves filter adjustments) |
- Per California Code of Civil Procedure § 430.10(b), any person bringing a complaint for unlawful detainer (eviction case) must be the legal owner of the property being leased, or at least an agent authorized to enter into a lease with tenants.
- 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). The plaintiff must attach documents establishing ownership of the subject property to the complaint to prove that he is the legal owner of the property, and has the right to possession; otherwise, he is not the real-party-in-interest. The complaint, which can be viewed online, did not attach any such documents, and did not allege that the plaintiff was the true owner of the premises.
This document from the Santa Clara County Recorder's Office shows that Khoa Nguyen, the person who brought the eviction suit, is not the current owner:
Transfer of Deed of Trust from Khoa Nguyen to Theresa Ziemkowski
In fact, it shows that Theresa Ziemkowski is the legal owner of the premises; therefore, Khoa Nguyen does not have the legal capacity to sue, as required by Code of Civil Procedure §§ 430.10(b) , 1165.
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 premise to the unlawful detainer action as the real-party-in-interest.
The facts as compared to the law
Khoa Nguyen, who brought the eviction case against me, is not the legal owner, as shown by the transfer of the deed of trust for 471 East Julian Street, San Jose, California, which is the property in question:
Khoa Nguyen, who brought the eviction case against me, is not the legal owner, as shown by the transfer of the deed of trust for 471 East Julian Street, San Jose, California, which is the property in question:
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 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.
Following are the trial transcripts:
Judge
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[inaudible] Are you related to Kim Phong Trang? [unintelligible]
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Nguyen
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No.
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Judge
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Okay, good to know. Who is that to you?
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Nguyen
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Judge
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Talk very slowly because of your Asian accent.
Mr. Bush, good morning. What, er, why do you think, uh, you're here?
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Bush
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Um, today, I scheduled two hearings: a motion for reconsideration based on the, uh…reconsideration of the denial of the motion to quash service of summons, which was denied by a judge that has subsequently been disqualified; uh, the second reason would be the…the, um, hearing on the demurrer. Now, my understanding from the clerk this morning—much to my surprise—was that the trial has been set for today; but, I never received any notice of that.
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Judge
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Correct. The trial is moving forward today.
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Bush
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Uh, yeah. Did you know that Mr. Nguyen…?
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Judge
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There's a proof of service in here...
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Bush
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Okay.
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Judge
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...by a server.
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Bush
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Okay. You do know that Mr. Nguyen is not the real-party-in-interest, right? He's not the property owner; he cannot bring this suit without [first] joining the property owner.
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Judge
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Okay, he says that he is the property owner.
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Bush
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He is not the property owner, and that is a fact that's stated in the compliance order from the City of San Jose. Theresa Ziemkowski is the property owner. Any ruling against me today would be challenged on that basis alone, in that this suit is not properly brought by the real-party-in-interest. I don't think we need to proceed today.
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Judge
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Okay. Where are you referring…?
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Bush
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Okay, I'm referring to the City of San Jose Compliance Order. Mr. Nguyen…Mr…. Well, first of all...
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Judge
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"To Theresa Ziemkowski…"
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Bush
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Theresa Ziemkowski is the owner.
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Judge
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"…and Khoa Nguyen."
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Bush
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Yeah.
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Judge
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So, he is listed as the owner.
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Bush
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He is not the owner, regardless of the incorrect…
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Judge
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Remember, if you talk over me, she's (the clerk) not going to get anything down. That means that, all the things you're saying, no one will be able to look [inaudible] and be able to see it, if you talk at the same time I do. So, if you'll remember that, then everything you say will [inaudible] trash can. You'll have to wait until I finish. [inaudible]
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Bush
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Okay. Yes.
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Judge
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Um…
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Bush
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Sure.
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Judge
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Now, I'll ask you a question about why do you think Mr. Nguyen is here today, and not the owner?
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Bush
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Mr. Todd Waltrip, who is a code enforcer for the City of San Jose, stated that to me, and he put that in a document, which is attached to the Motion to Quash Service of Summons. I ask the court to take judicial…judicial notice of that motion and that exhibit.
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Judge
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Okay. [inaudible] to the exhibit.
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Bush
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The exhibit is in a…
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Judge
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Let me show this to my bailiff.
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Bush
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Okay. Sir? The Motion to Quash Service of Summons with the exhibit I'm referring to…
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Judge
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I have here, "Exhibit A - City of San Jose Department of Building, Planning and Code Enforcement Compliance Order, issued on March 13th, 2012..."
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Bush
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Attached to which motion? Attached to which motion?
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Judge
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Okay, and on the first page, I have City of San Jose Compliance Order, and right under that I have, "Principal Owner(s): Theresa Ziemkowski," Z-I-E-M-K-O-W-S-K-I, "ampersand—that is to say, 'and,' Khoa Duang Nguyen."
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Bush
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Okay. Sir, is that the exhibit that is attached to today's Motion for…
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Judge
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Yeah.
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Bush
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Okay. The motion…the exhibit I am referring to is attached to the Motion to Quash Service of Summons, which is on-file, I am asking the court to take judicial notice of that exhibit; that means it will have to be pulled from the file…
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Judge
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Is that the one that Judge, uh, um, Manoukian [inaudible]…
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Bush
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That is the motion; but, the exhibit you are asking for…you are asking for proof that Khoa Nguyen is not the property owner…
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Judge
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Sure.
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Bush
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…and I am providing that to you. It is now in the file.
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Judge
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Did you bring a copy with you to court?
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Bush
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It's on my laptop, sir. Had I known we were going to have a trial today, I would had it in hand. But, I am asking the court to take judicial notice of it. It's in the file. Also, we can call Mr. Waltrip or any city code inspector, or city code enforcement inspector right now , including Doug Perasso. He can verify that for us that Mr. Nguyen is not the property owner.
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Judge
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You're going to have to spell that last name?
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Bush
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I'm sorry. Oh, Perasso? P-E-R-A-S-S-O. And, he's available.
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Deputy or Clerk
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[swears in parties]
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Judge
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Alright, let's deal with one thing at a time. Um, Mr. Khoa Duang Nguyen, are you the owner of the [property in question]?
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Nguyen
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Yes. [unintelligible]
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[roar, twice]
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Judge
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She's not taking you down because you interrupted me. Are you the owner of the property...
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Nguyen
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Yes, sir.
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Judge
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...at 7—excuse me—at 471½ East Julian Street in San Jose?
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Nguyen
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[unintelligible] I bought it some 30 years ago. [unintelligible]
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Judge
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Would you...would you [like] a Vietnamese interpreter?
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Nguyen
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No.
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Judge
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But, she can't understand you.
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Nguyen
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[unintelligible]
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Secretary
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[inaudible] can't understand you.
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Nguyen
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Okay. I paid the mortgage. [unintelligible]
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Judge
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I understand that; I just asked you if you were the owner.
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Nguyen
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I am the owner.
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Judge
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Okay.
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Nguyen
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[unintelligible]
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Judge
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Do you have the deed-of-trust [unintelligible]?
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Nguyen
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...for two years—for two years. I transferred [it] to my daughter $40,000; I didn't pay my mortgage.
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Bush
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So, basically, what he's...uh, I can understand him clearly; so, I'll translate: he's, basically, saying that he could not pay the mortgage, and [that] he transferred the deed—to avoid foreclosure—to his daughter, Theresa Ziemkowski. Now, she's the legal owner, and not him. He originally had bought the house, probably; but, he does not own [and] the deed of trust is not in his name.
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Nguyen
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I do pay [the] mortgage. [unintelligible] So, I paid; I'm the owner.
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Judge
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[to Bush] Do you have anything to say to, uh, contradict what he had to say?
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Bush
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The plaintiff just admitted that he does not have the deed-of-trust; he is not the owner of the home.
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Judge
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I don't think he admitted that.
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Bush
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He just said, “I transferred the title to my daughter. She now is on the deed-of-trust.
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Judge
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As well as he is.
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Bush
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No, he did not say that. You just added that.
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Nguyen
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Oh, [unintelligible] I pay the mortgage. I am the owner. I paid the mortgage.
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Reporter
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I'm sorry?
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Nguyen
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I own the home. I pay every month.
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Judge
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Okay.
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Nguyen
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[unintelligible]
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Bush
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And, and, Mr., uh, Todd Waltrip and/or Mr. Doug Perasso...
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Clerk
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Can I get you to spell that?
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Bush
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Uh, Waltrip...W-A-L-T-R-I-P and/or Mr. Perasso, both with the city code enforcement unit, will verify for you right now—we can call them right now; and, you know, it's very, you know, much in our interest to do so.
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Judge
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I'll call them in. Are they outside?
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Bush
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Pardon?
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Judge
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Are they outside the courtroom here?
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Bush
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Down the street.
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Judge
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Well, then, it's too late.
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Bush
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Well, regardless, he's not on the deed-of-trust, and if the court issues an order of eviction based on the fact that he is the real-party-in-interest, I, you know, will simply show the documents showing the real-party-in-interest, and the fact that they are not on this suit, and that it cannot lawfully be brought. I'll have it overturned. We either do justice correctly today, or we can do it correctly in another courtroom
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Judge
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I thank you very much.
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Bush
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You're welcome.
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Judge
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Be very careful. In the sixteen years that I have never...
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Bush
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Okay.
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Judge
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You're really, really close.
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Bush
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I apologize.
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Judge
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...in front of Judge Manley, right?
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Bush
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Yes.
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Judge
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Alright, you know what you have to do in court. [unintelligible] If you don't treat me with respect...
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Bush
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Yeah...
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Judge
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...for the first time in sixteen—almost seventeen—years, I will hold you in contempt. It may take all day long [because] I don't how to hold someone in contempt because I've never done it. I'd have to go look it up. Now, believe me, if I hold you in contempt, you won't be staying at 471 Julian tonight. So, you do what you wanna do. You can be nice and polite, and then, if you don't like what I”m gonna do, and appeal it, [unintelligible]. But, if you threaten me here in court, I'm not going to take it very lightly. Understand that?
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Bush
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Sure.
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Judge
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I mean it.
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Bush
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Yes, your Honor, I understand.
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Judge
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In fact, that's only probably the second or third time somebody's been rude to me.
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Bush
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I apologize, your Honor.
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Judge
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Okay, so, the first thing is your Motion for Reconsideration of [Motion] to Quash Service of Summons. Do you have any reason that I should reconsider that?
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Bush
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Yes, I do. The judge that made the ruling was later found to be biased...
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Judge
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No, you made that bias. You made that. It'a a [section] 179.6 of the Code of Civil Procedure, … to tell that judge the judge is biased against you.
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Bush
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Okay.
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Judge
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You did it after the judge had ruled on it. So, I”m going to take that into consideration. Do you have any other reason why I should revisit the Motion for Reconsideration.
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Bush
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Error-of-law.
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Judge
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Pardon?
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Bush
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Error-of-law.
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Judge
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What was the error-of-law?
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Bush
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Uh, the noticing requirements and, uh, service requirements are strictly enforced in cases of unlawful detainer; they were not followed in these respects: no notice was issued by Mr. Nguyen, and he does not claim that it was. There was no 30-day—there was no 3-day—notice to quit. He does not...
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Judge
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It does say...
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Bush
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Excuse me?
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Judge
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...that you were served on February 2nd, 2012...
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Bush
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Right.
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Judge
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...by [inaudible]...
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Bush
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Right. In the memoranda for the Motion to Quash Service of Summons, it describes the law, [which] case law that says that specifically says, “This is how noticing works, it is strictly enforced, [and] any error whatsoever is grounds for granting the Motion to Quash Service of Summons. The other thing... Go ahead.
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Judge
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Anything else?
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Bush
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Well, that's it for the Motion to Quash Service of Summons and Notice, yeah.
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Judge
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I have read and reviewed your, uh, Motion to Quash Service of Summons that was [already] ruled on. I didn't see any Notice of Motion for Reconsideration, unless that's an error.
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Bush
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Yes, there was a mistake in the clerk's office. I brought an extra copy...
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Judge
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...[inaudible]...
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Bush
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...okay...
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Judge
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Well, anyway, I read it again.
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Bush
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Okay.
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Judge
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The Motion to Quash Service of Summons.
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Bush
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Alright.
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Judge
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I read it again, and in reviewing the file, and I find no … in his decision.Your Motion for Reconsideration of the Motion to Quash Service of Summons is denied. Bring the next motion.
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Bush
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The next motion is the Defendant's Demurrer to Complaint.
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Judge
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Alright. [inaudible] Can you elaborate on this?
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Bush
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Alright, so the primary arguments would be that, of course, the plaintiff does not legally own the property; he admits that. He admits that, although he makes the payments, he is not the real-party-in-interest. He simply has to join Ms. Ziemkowski to this suit to make it, uh, to make it a lawful suit. That's the remedy for him. That right there [alone] just shows that he does not have the legal capacity to bring this case. In the memoranda, it underscores the importance of, or...uh, the relevance [of this] to the case.
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Judge
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Slow down!
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Bush
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I'm sorry.
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Judge
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[inaudible]
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Bush
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Okay, is there anything I need to go back over? Slow down? Alright.
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Court Reporter
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Thank you.
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Bush
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Okay. We talked about the noticing already. Uh, the... A lease cannot technically exist between me and the property owner, whether he is the property owner or not (although that question has been answered, I feel)…um, the argument is, basically, this: if you look at, uh, Exhibit “A”, The Compliance Order, [neither] Mr. Nguyen nor Ms. Ziemkowski obtained the requisite certificate of occupancy for this structure, therefore they are not apartments, in the legal sense, [and] the contract between us is not a lease, in the legal sense; and, moreover, the building has been condemned and ordered destroyed.
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Judge
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Okay, okay. Go ahead. It could be fixed.
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Bush
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I'm just going by what I was told; but, sure. You know, it'd…it'd…it'd…it'd have to be vacated as ordered; it was declared substandard housing.
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Judge
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Okay.
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Bush
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If you look at page one of three of the the City of San Jose Compliance Order...
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Judge
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Right.
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Bush
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...it says, 'substandard housing' and 'improper occupancy' and 'it is unsafe for people to live there,” if you look at page, um...at the last page, “Notice of Tenant's Rights,” it…basically, it says that, uh, you know, 'tenants have to vacate' because 'the substandard conditions endanger the health and safety of the tenant.' That Mr. Nguyen or Ms. Ziemkowski owe the defendant three months fair market value rent.
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Judge
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Where does it say that?
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Bush
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That is on the Notice of Tenant's Rights. I spoke Refugio Huizar at [The] Bay Area Legal Aid [Society]...
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Judge
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Spell that.
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Bush
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...Refugio is R-E-F-U-G-I-O; Huizar is H-U-I-Z-A-R—at The Bay Area Legal Aid [Society]; he wrote a letter of demand [clears throat] to Mr. Nguyen for this money. Mr. Nguyen not only owes this money per state, uh, by not only City of San Jose Municipal Code, but by state and federal law.
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Judge
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Right; [but,] that's something else. That's not our department.
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Bush
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My point is that it's substandard housing—it is not a…an apartment [and] it is not a lease—it is not an enforceable contract that can be enforced in this court as an unlawful detainer action. While Mr. Nguyen can [legally] remove me from the property, he may not—under law—claim damages, if the house has been, uh, if the apartments have been condemned and shut down by the city. Uh, that is a well-established law. Therefore, he cannot claim damages today. Uh, an Order to Vacate has already been issued by the city. I am to be out of the apartment—as well as [are] all tenants—by April 15th—in less than two weeks. An order of eviction is not necessary. I will have to leave the apartment, regardless.
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Judge
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Well, the city has to order you to order him…
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Bush
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Regardless...
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Judge
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Well, it's not 'regardless.'
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Bush
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Okay...
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Judge
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He has to take some action; or, the city will go after him for not taking action. So, they asked you to be out by the 15th…
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17:57 - Bush
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How many days would it be from now… If I were evicted today, how many days would I have to leave the apartment?
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Judge
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Mr. Nguyen?
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Nguyen
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Yeah?
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Judge
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How many days would he have?
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Nguyen
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[unintelligible]
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Judge
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If he were evicted today?
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Nguyen
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I want him out, after he come my home.
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Judge
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No, no; answer my question. If I evict Mr. Bush today, when does he have to be out?
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Nguyen
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[unintelligible]
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Judge
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[inaudible]
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Bush
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Yes. Plaintiff breached the covenant to provide habitable premises, and in its compliance order, the City of San Jose declared the apartment units substandard housing.
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Judge
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[inaudible]
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Bush
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The Demurrer to Complaint points out… Okay, so which one are we going over? The demurrer only? That's not a demurrer issue at all?
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Judge
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[inaudible] Mr. Nguyen: be specific; you want him out because the city has told you to empty that unit, is that correct?
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Nguyen
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Yes.
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Judge
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Okay. When's the last time Mr. Bush paid rent?
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Nguyen
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[unintelligible] …kick him out right away.
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Judge
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If he doesn't have the money right away.
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Bush
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I can answer…
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Nguyen
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I don't want money; I don't want his money anymore. I gave to him his money, and took everything out. I want him out right now.
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Judge
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What money did he give to you?
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Nguyen
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[unintelligible] I call him on Tuesday night, "You don't pay me my money!" [unintelligible] June. April. March. February. January. [unintelligible] January.
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Judge
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January what?
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Nguyen
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January 5[th].
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Reporter
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January what?
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Nguyen
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January 12th.
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Judge
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[inaudible] January 12th.
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Nguyen
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Yes, sir.
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Judge
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And, how much did he pay you?
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Nguyen
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He pay me about $300.
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Judge
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$300?
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Nguyen
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$300.
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Bush
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Mm-mm.
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Nguyen
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[unintelligible] $400.
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Bush
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Does Mr. Nguyen have receipts for this?
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Judge
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If you interrupt… If you interrupt, I'll just say that that's what you have to say...
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Bush
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Okay.
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Judge
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…and, then I won't give you a chance.
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Bush
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Alright, thank you.
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21:15
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Judge
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Did someone…fag... [unintelligible]
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Bush
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I can do that.
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Judge
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[unintelligible]
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Bush
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Yes, sir.
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Judge
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[unintelligible]
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Bush
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Oh! Alright.
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Judge
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[unintelligible]
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Bush
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Yes, yes.
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Judge
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[unintelligible]
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Bush
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Okay.
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Judge
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[unintelligible] Is this a [unintelligible] or what?
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Bush
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This is an overhead.
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Judge
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[unintelligible]
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Bush
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It's a garage, converted into a…
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Judge
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A garage...
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Bush
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Yeah… Alright, this is 620…this is Julian Street, okay? This is the driveway to 471; this is the business-residence that, um, Mr. Nguyen resides at. Um, to get to the converted garage...
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Judge
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[inaudible]
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Bush
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Right. No! Well, there's a blue gate; the driveway continues on. There are usually—you know, I would say—two or three cars…
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Judge
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Okay.
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Bush
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…parked right there. Okay?
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Judge
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Got it.
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Bush
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You can walk—as long as he unlatches the gate—you can walk [inaudible] you can walk over here, and come into a courtyard area, uh, some of which is pictured, I believe…
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Judge
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I don't want to see any pictures.
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Bush
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Okay; just wanted to give you a better idea. Uh, this is apartment number one, apartment number two—which is where I reside—and…
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Judge
|
[unintelligible]
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Nguyen
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Three.
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Judge
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And, which one do you occupy?
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Bush
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Number two; the middle one.
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Judge
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How many square feet is that?
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Bush
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Uh, I don't know; it's tiny.
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Judge
|
[inaudible]
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Bush
|
Yes [unintelligible]. Yes, yes.
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Judge
|
And that person, as well, has to be out by April 15th?
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Bush
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Yes, that's what I was told by the code enforcement inspector, yes.
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Judge
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Alright, now, the code enforcement officer told you that you should be out by a certain date.
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Bush
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He said by April 15th.
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Judge
|
Okay.
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Bush
|
And, he said that [unintelligible]…
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Judge
|
Alright, so, you open the door, and you walk into the unit [unintelligible]. It's a garage, divided in three? Is there…is there a in there?
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Bush
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There is a —a non-working . It works half the time; I have to plunge it.
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Judge
|
[unintelligible]
|
Bush
|
And, that would be the only appliance in the apartment.
|
Judge
|
Okay, you don't have a kitchen?
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Bush
|
No.
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Judge
|
Okay. [unintelligible] last paid on January 12?
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Bush
|
That's not the time I last paid. I offered Mr. Nguyen rent every month since the time he filed [for] the eviction, and he has refused it each time.
|
Judge
|
[inaudible]
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Bush
|
Huh? He filed it on February 24th, two weeks, uh, uh…three weeks after giving me notice to leave, he gave me an eviction paper.
|
Judge
|
Okay, so, so, on January 12th, he gave you [unintelligible], is that correct?
|
Bush
|
[In] January, I paid rent—not on January 12th, but on January 1st, I paid $400 rent.
|
Judge
|
Okay, did you pay rent on February 1st?
|
Bush
|
February 1st.
|
Judge
|
Did you get it?
|
Nguyen
|
[unintelligible]
|
Bush
|
He refused it.
|
Nguyen
|
[unintelligible]
|
Judge
|
[unintelligible]
|
Bush
|
And, that is correct, Your Honor. I think he said that [for] two months I didn't pay him—in April and in March—and that would be correct; but, that's because he wouldn't take it.
|
Nguyen
|
[unintelligible]
|
Judge
|
Do you have a cancelled check or anything?
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Bush
|
He doesn't accept anything but cash; and, the reason why he doesn't accept anything but cash is because he doesn't report the income...
|
Judge
|
Does he give receipts?
|
Bush
|
He doesn't give receipts?
|
Judge
|
[unintelligible]
|
Bush
|
I can; but, it didn't do me any good when I did it.
|
Judge
|
Why?
|
Bush
|
Ugh! I don't know...ask him! Do you issue receipts for paid rent? Do you have receipts for other people you've rented to?
|
Judge
|
You mean, you can't write on a piece of paper, “I gave Mr. Nguyen $400 rent on February 1st.” [unintelligible]
|
Bush
|
Alright.
|
Nguyen
|
[unintelligible]
|
Judge
|
She can't understand you.
|
Nguyen
|
[unintelligible]
|
Bush
|
I can translate... Alright.
|
Nguyen
|
[unintelligible]
|
Judge
|
You said you offered [rent] to him, and that he refused.
|
Bush
|
Had I known... Yes, had I known...
|
Judge
|
Well, weren't you a little shocked that he refused?
|
Bush
|
No, he's not supposed to accept rent when there's a pending eviction. I checked this out with Bay Area Legal Aid. Everything I've...
|
Judge
|
There was a pending eviction?
|
Bush
|
Yes, in March, the eviction was pending.
|
Judge
|
And, when did he give you notice of that?
|
Bush
|
On February 24th.
|
Judge
|
Okay, and what was the reason for the eviction?
|
Bush
|
In his notice, he said that, uh, “due to repairs.” He needed repairs or something.
|
Judge
|
Okay, now you're being evicted... He has two causes of action...
|
Bush
|
Right.
|
Judge
|
...because of unpaid rent and because of the City of San Jose demanded that he vacate that garage because [unintelligible]. Is that correct?
|
Bush
|
Uh, yeah. Had I known, Your Honor, that you'd require proof of non-payment, er, payment...of course, I know that you'd request that—that's a logical request. I didn't know today was the trial date; otherwise, I would have had my witness—the friend [Mr. Nguyen] referred to—come in and say, “I have Mr. Nguyen $400 on this date and this date and this...” And, you would find that we are in agreement as to what was paid and wasn't. And, that is sufficient to show
|