Saturday, September 1, 2012

#385 - JUSTICE | Transcripts show violations of law by judge coached by demon

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.
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)
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:
  • 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:

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.
2 - Unlawful Detainer Complaint


Following are the trial transcripts:


Judge
[inaudible] Are you related to Kim Phong Trang? [unintelligible]
Nguyen
No.
Judge
Okay, good to know. Who is that to you?
Nguyen


Judge
Talk very slowly because of your Asian accent.

Mr. Bush, good morning. What, er, why do you think, uh, you're here?
Bush
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.
Judge
Correct. The trial is moving forward today.
Bush
Uh, yeah. Did you know that Mr. Nguyen…?
Judge
There's a proof of service in here...
Bush
Okay.
Judge
...by a server.
Bush
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.
Judge
Okay, he says that he is the property owner.
Bush
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.
Judge
Okay. Where are you referring…?
Bush
Okay, I'm referring to the City of San Jose Compliance Order. Mr. Nguyen…Mr…. Well, first of all...
Judge
"To Theresa Ziemkowski…"
Bush
Theresa Ziemkowski is the owner.
Judge
"…and Khoa Nguyen."
Bush
Yeah.
Judge
So, he is listed as the owner.
Bush
He is not the owner, regardless of the incorrect…
Judge
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]
Bush
Okay. Yes.
Judge
Um…
Bush
Sure.
Judge
Now, I'll ask you a question about why do you think Mr. Nguyen is here today, and not the owner?
Bush
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.
Judge
Okay. [inaudible] to the exhibit.
Bush
The exhibit is in a…
Judge
Let me show this to my bailiff.
Bush
Okay. Sir? The Motion to Quash Service of Summons with the exhibit I'm referring to…
Judge
I have here, "Exhibit A - City of San Jose Department of Building, Planning and Code Enforcement Compliance Order, issued on March 13th, 2012..."
Bush
Attached to which motion? Attached to which motion?
Judge
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."
Bush
Okay. Sir, is that the exhibit that is attached to today's Motion for…
Judge
Yeah.
Bush
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…
Judge
Is that the one that Judge, uh, um, Manoukian [inaudible]…
Bush
That is the motion; but, the exhibit you are asking for…you are asking for proof that Khoa Nguyen is not the property owner…
Judge
Sure.
Bush
…and I am providing that to you. It is now in the file.
Judge
Did you bring a copy with you to court?
Bush
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.
Judge
You're going to have to spell that last name?
Bush
I'm sorry. Oh, Perasso? P-E-R-A-S-S-O. And, he's available.
Deputy or Clerk
[swears in parties]
Judge
Alright, let's deal with one thing at a time. Um, Mr. Khoa Duang Nguyen, are you the owner of the [property in question]?
Nguyen
Yes. [unintelligible]


[roar, twice]
Judge
She's not taking you down because you interrupted me. Are you the owner of the property...
Nguyen
Yes, sir.
Judge
...at 7—excuse me—at 471½ East Julian Street in San Jose?
Nguyen
[unintelligible] I bought it some 30 years ago. [unintelligible]
Judge
Would you...would you [like] a Vietnamese interpreter?
Nguyen
No.
Judge
But, she can't understand you.
Nguyen
[unintelligible]
Secretary
[inaudible] can't understand you.
Nguyen
Okay. I paid the mortgage. [unintelligible]
Judge
I understand that; I just asked you if you were the owner.
Nguyen
I am the owner.
Judge
Okay.
Nguyen
[unintelligible]
Judge
Do you have the deed-of-trust [unintelligible]?
Nguyen
...for two years—for two years. I transferred [it] to my daughter $40,000; I didn't pay my mortgage.
Bush
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.
Nguyen
I do pay [the] mortgage. [unintelligible] So, I paid; I'm the owner.
Judge
[to Bush] Do you have anything to say to, uh, contradict what he had to say?
Bush
The plaintiff just admitted that he does not have the deed-of-trust; he is not the owner of the home.
Judge
I don't think he admitted that.
Bush
He just said, “I transferred the title to my daughter. She now is on the deed-of-trust.
Judge
As well as he is.
Bush
No, he did not say that. You just added that.
Nguyen
Oh, [unintelligible] I pay the mortgage. I am the owner. I paid the mortgage.
Reporter
I'm sorry?
Nguyen
I own the home. I pay every month.
Judge
Okay.
Nguyen
[unintelligible]
Bush
And, and, Mr., uh, Todd Waltrip and/or Mr. Doug Perasso...
Clerk
Can I get you to spell that?
Bush
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.
Judge
I'll call them in. Are they outside?
Bush
Pardon?
Judge
Are they outside the courtroom here?
Bush
Down the street.
Judge
Well, then, it's too late.
Bush
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
Judge
I thank you very much.
Bush
You're welcome.
Judge
Be very careful. In the sixteen years that I have never...
Bush
Okay.
Judge
You're really, really close.
Bush
I apologize.
Judge
...in front of Judge Manley, right?
Bush
Yes.
Judge
Alright, you know what you have to do in court. [unintelligible] If you don't treat me with respect...
Bush
Yeah...
Judge
...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?
Bush
Sure.
Judge
I mean it.
Bush
Yes, your Honor, I understand.
Judge
In fact, that's only probably the second or third time somebody's been rude to me.
Bush
I apologize, your Honor.
Judge
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?
Bush
Yes, I do. The judge that made the ruling was later found to be biased...
Judge
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.
Bush
Okay.
Judge
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.
Bush
Error-of-law.
Judge
Pardon?
Bush
Error-of-law.
Judge
What was the error-of-law?
Bush
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...
Judge
It does say...
Bush
Excuse me?
Judge
...that you were served on February 2nd, 2012...
Bush
Right.
Judge
...by [inaudible]...
Bush
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.
Judge
Anything else?
Bush
Well, that's it for the Motion to Quash Service of Summons and Notice, yeah.
Judge
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.
Bush
Yes, there was a mistake in the clerk's office. I brought an extra copy...
Judge
...[inaudible]...
Bush
...okay...
Judge
Well, anyway, I read it again.
Bush
Okay.
Judge
The Motion to Quash Service of Summons.
Bush
Alright.
Judge
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.
Bush
The next motion is the Defendant's Demurrer to Complaint.
Judge
Alright. [inaudible] Can you elaborate on this?
Bush
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.
Judge
Slow down!
Bush
I'm sorry.
Judge
[inaudible]
Bush
Okay, is there anything I need to go back over? Slow down? Alright.
Court Reporter
Thank you.
Bush
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.
Judge
Okay, okay. Go ahead. It could be fixed.
Bush
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.
Judge
Okay.
Bush
If you look at page one of three of the the City of San Jose Compliance Order...
Judge
Right.
Bush
...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.
Judge
Where does it say that?
Bush
That is on the Notice of Tenant's Rights. I spoke Refugio Huizar at [The] Bay Area Legal Aid [Society]...
Judge
Spell that.
Bush
...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.
Judge
Right; [but,] that's something else. That's not our department.
Bush
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.
Judge
Well, the city has to order you to order him…
Bush
Regardless...
Judge
Well, it's not 'regardless.'
Bush
Okay...
Judge
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…
17:57 -   Bush
How many days would it be from now… If I were evicted today, how many days would I have to leave the apartment?
Judge
Mr. Nguyen?
Nguyen
Yeah?
Judge
How many days would he have?
Nguyen
[unintelligible]
Judge
If he were evicted today?
Nguyen
I want him out, after he come my home.
Judge
No, no; answer my question. If I evict Mr. Bush today, when does he have to be out?
Nguyen
[unintelligible]
Judge
[inaudible]
Bush
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.
Judge
[inaudible]
Bush
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?
Judge
[inaudible] Mr. Nguyen: be specific; you want him out because the city has told you to empty that unit, is that correct?
Nguyen
Yes.
Judge
Okay. When's the last time Mr. Bush paid rent?
Nguyen
[unintelligible] …kick him out right away. 
Judge
If he doesn't have the money right away.
Bush
I can answer…
Nguyen
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.
Judge
What money did he give to you?
Nguyen
[unintelligible] I call him on Tuesday night, "You don't pay me my money!" [unintelligible] June. April. March. February. January. [unintelligible] January.
Judge
January what?
Nguyen
January 5[th].
Reporter
January what?
Nguyen
January 12th.
Judge
[inaudible] January 12th.
Nguyen
Yes, sir.
Judge
And, how much did he pay you?
Nguyen
He pay me about $300.
Judge
$300?
Nguyen
$300.
Bush
Mm-mm.
Nguyen
[unintelligible] $400.
Bush
Does Mr. Nguyen have receipts for this?
Judge
If you interrupt… If you interrupt, I'll just say that that's what you have to say...
Bush
Okay.
Judge
…and, then I won't give you a chance.
Bush
Alright, thank you.
21:15

Judge
Did someone…fag... [unintelligible]
Bush
I can do that.
Judge
[unintelligible]
Bush
Yes, sir.
Judge
[unintelligible]
Bush
Oh! Alright.
Judge
[unintelligible]
Bush
Yes, yes.
Judge
[unintelligible]
Bush
Okay.
Judge
[unintelligible] Is this a [unintelligible] or what?
Bush
This is an overhead.
Judge
[unintelligible]
Bush
It's a garage, converted into a…
Judge
A garage...
Bush
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...
Judge
[inaudible]
Bush
Right. No! Well, there's a blue gate; the driveway continues on. There are usually—you know, I would say—two or three cars…
Judge
Okay.
Bush
…parked right there. Okay?
Judge
Got it.
Bush
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…
Judge
I don't want to see any pictures.
Bush
Okay; just wanted to give you a better idea. Uh, this is apartment number one, apartment number two—which is where I reside—and…
Judge
[unintelligible]
Nguyen
Three.
Judge
And, which one do you occupy?
Bush
Number two; the middle one.
Judge
How many square feet is that?
Bush
Uh, I don't know; it's tiny.
Judge
[inaudible]
Bush
Yes [unintelligible]. Yes, yes.
Judge
And that person, as well, has to be out by April 15th?
Bush
Yes, that's what I was told by the code enforcement inspector, yes.
Judge
Alright, now, the code enforcement officer told you that you should be out by a certain date.
Bush
He said by April 15th.
Judge
Okay.
Bush
And, he said that [unintelligible]…
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?
Bush
There is a —a non-working . It works half the time; I have to plunge it.
Judge
[unintelligible]
Bush
And, that would be the only appliance in the apartment.
Judge
Okay, you don't have a kitchen?
Bush
No.
Judge
Okay. [unintelligible] last paid on January 12?
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]
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?
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 


Rerun