Last Friday, a Superior Court judge in California denied my motion in the latest eviction proceedings against me, which sought an order requiring the landlord-plaintiff to issue a proper termination notice:
The basis of the denial was that a failure to follow statutory noticing requirements is an issue addressed at trial, and not a motions hearing.
This is incorrect for several reasons, which are fully explained in the memorandum of my motion:
Legalese aside, the crux of the argument is that there can be no trial until the defendant is properly noticed; and, in my case, that didn't happen. The declaration below provides the details:
In short, the declaration states the landlord agreed to extend my lease an extra month, and I remained in my apartment into the beginning of that month. The landlord then decided to rescind the agreement, and refused to accept rent; then, instead of providing the requisite 30-day notice, the landlord filed an unlawful detainer (or eviction) suit.
By the way, here's the rent money, just in case any of you were wondering if that was the issue:
A common tactic in Santa Clara County, which exists between judges and lawyers connected vis-a-vis the Voices Demons and the like, is for a lawyer to avoid in their answer to such motions the primary argument altogether, making the issue something entirely different. The judge then goes by the issue in the answer, and not the issue in the motion. Following is the answer to my motion, as filed by the attorney for the landlord:
Plaintiff's Response to Defendant's Motion to Quash Service of Summons
The statements made in this answer are not correct or imply that I don't know what I'm doing.
First, I don't dispute that I was served, of course, just that I was served improperly. The question of service of summons isn't whether I was served at all; but, whether I was served after having received proper notice, too. There are only two motions to file prior to answering a complaint for unlawful detainer (eviction): a motion to quash and a demurrer to the complaint. A motion to quash is where you question to the sufficiency of noticing and service compliance. It's just the law.
If you were served a lawsuit, but were not noticed prior to it (and you were supposed to be, as you would be in this case), then the service of summons is deemed insufficient. You raise that issue before trial because there can be no trial (i.e., the court has no jurisdiction over you) until you have been properly served.
Second, it is not a factual dispute that requires any introduction of witnesses and evidence that could not have been provided with and attached to the answer to the motion itself. You either have a copy of the notice with the proper date on it or you don't. There could not possibly be any witnesses required, if all the documentation is there.
In my case, I had a contract written by the landlord, explicitly extending the lease into March; the lawsuit was filed in March. That's not 30 days.
On Monday, I will prepare and file an ex parte motion to have this error-of-law reviewed.
[a copy of the order forthcoming]
The basis of the denial was that a failure to follow statutory noticing requirements is an issue addressed at trial, and not a motions hearing.
This is incorrect for several reasons, which are fully explained in the memorandum of my motion:
Legalese aside, the crux of the argument is that there can be no trial until the defendant is properly noticed; and, in my case, that didn't happen. The declaration below provides the details:
Declaration of James Alan Bush in Support of the Defendant's Motion to Quash Service of Summons by James Alan Bush
In short, the declaration states the landlord agreed to extend my lease an extra month, and I remained in my apartment into the beginning of that month. The landlord then decided to rescind the agreement, and refused to accept rent; then, instead of providing the requisite 30-day notice, the landlord filed an unlawful detainer (or eviction) suit.
By the way, here's the rent money, just in case any of you were wondering if that was the issue:
 |
| Knowing a maneuver of demonic proportions was on its way, I took a snapshot of March's rent at the time I saw it coming (not that it makes much difference now, of course; but, you know how people talk) |
Plaintiff's Response to Defendant's Motion to Quash Service of Summons
The statements made in this answer are not correct or imply that I don't know what I'm doing.
First, I don't dispute that I was served, of course, just that I was served improperly. The question of service of summons isn't whether I was served at all; but, whether I was served after having received proper notice, too. There are only two motions to file prior to answering a complaint for unlawful detainer (eviction): a motion to quash and a demurrer to the complaint. A motion to quash is where you question to the sufficiency of noticing and service compliance. It's just the law.
If you were served a lawsuit, but were not noticed prior to it (and you were supposed to be, as you would be in this case), then the service of summons is deemed insufficient. You raise that issue before trial because there can be no trial (i.e., the court has no jurisdiction over you) until you have been properly served.
Second, it is not a factual dispute that requires any introduction of witnesses and evidence that could not have been provided with and attached to the answer to the motion itself. You either have a copy of the notice with the proper date on it or you don't. There could not possibly be any witnesses required, if all the documentation is there.
In my case, I had a contract written by the landlord, explicitly extending the lease into March; the lawsuit was filed in March. That's not 30 days.
On Monday, I will prepare and file an ex parte motion to have this error-of-law reviewed.