Demurrer Points Authorities Unlawful Detainer Defendant California Memorandum - PDF

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Demurrer Points Authorities Unlawful Detainer Defendant California Memorandum - PDF Powered By Docstoc
					 1   ___________________________
     East Bay Community Law Center
 2   2921 Adeline Street
     Berkeley, CA 94703
 3   (510) 548-4040
 4   Attorney for Claimants/Defendants
 5
 6
 7                  SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA

 8                                 RENE C. DAVIDSON COURTHOUSE
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10   LA SALLE NAT’L ASSOCIATION,                       Case No.
     TRUSTEE FOR OWNIT MORTGAGE
11   LOAN TRUST,                                       NOTICE OF DEMURRER AND
                                                       DEMURRER
12                   Plaintiff,
13                                                     Date:
     v.                                                Time:
14                                                     Dept.:
     ____________; and DOES 1 through 100              Res. No.:
15   inclusive,
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                     Defendants.
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18   TO PLAINTIFF THROUGH ITS ATTORNEY OF RECORD, _____________________:
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               PLEASE TAKE NOTICE that on ________________________ at 9:00 a.m. or as soon
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     thereafter as the matter may be heard in Department 31 of the Court located at 201 13th St.
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22   Oakland, CA, Defendant will and hereby does demur to the Complaint, pursuant to Code of Civil

23   Procedure (CCP) § 430.10, on the grounds that it fails to state a cause of action in unlawful
24   detainer. This Demurrer is based on this Notice, the attached Memorandum of Points and
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     Authorities, on such matters as the court must or may judicially notice, on the papers and
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     pleadings on file in this action, and on such argument as may be advanced at hearing on this
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28   matter.

29   Notice of Demurrer and Demurrer to Complaint

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     Date:                                          ____________________________
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29   Notice of Demurrer and Demurrer to Complaint

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 1   ____________________________
     East Bay Community Law Center
 2   2921 Adeline Street
     Berkeley, CA 94703
 3   (510) 548-4040
 4   Attorney for Claimants/Defendants
 5                 SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
 6
                                  RENE C. DAVIDSON COURTHOUSE
 7
 8   LA SALLE NAT’L ASSOCIATION,                       Case No.
 9   TRUSTEE FOR OWNIT MORTGAGE
     LOAN TRUST,                                       MEMORANDUM OF POINTS AND
10                                                     AUTHORITIES IN SUPPORT OF
                    Plaintiff,                         CLAIMANTS’ DEMURRER TO
11                                                     COMPLAINT
12   v.
                                                       Date:
13   ______________________; and DOES 1                Time:
     through 100 inclusive,                            Dept.:
14                                                     Res. No.:
                    Defendants.
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     I.     STATEMENT OF FACTS
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            This is an action for unlawful detainer based on a Three/Thirty-day “NOTICE TO
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     OCCUPANTS TO VACATE PREMISES AFTER FORECLOSURE” (hereinafter “Notice”)
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20   which is addressed to ______________ and “All occupants in Care of named Tenant” of the

21   premises located at ________________________, Oakland, CA 94606. See Notice, a copy of
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     which is attached to Plaintiff’s Complaint as Exhibit 2. Plaintiff incorporates all unnamed
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     persons in possession into the Complaint as Does 1 through 100. Plaintiff’s Complaint ¶2.
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            Claimants __________________________ are two of the Doe-occupants and tenants at
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26   the subject premises. See Prejudgment Claim of Right to Possession filed on or about

27   ________________________________. Because this tenancy is in Oakland, the Notice must
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30   Memorandum of Points and Authorities in Support of Demurrer to Complaint

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     comply with or allege exemption from Oakland’s Just Cause for Eviction Ordinance (hereinafter
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 2   “Ordinance,”). See Oakland Municipal Code (OMC) 8.22.300 et seq. Because the Notice fails to

 3   comply with the Ordinance or allege exemption from the Ordinance, Plaintiff has failed to allege
 4   facts sufficient to state a cause of action.
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     II.     DEMURRER IS PROPER IN THIS CASE BECAUSE PLAINTIFF HAS FAILED
 6           TO STATE A CAUSE OF ACTION.
 7           Code of Civil Procedure (CCP) § 430.10 provides, in pertinent part:
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           The party against whom a complaint or cross-complaint has been filed may object by
 9   demurrer . . . on any of the following grounds:
10           (e) The pleading does not state facts sufficient to constitute a cause of action.
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             Here, Plaintiff’s Complaint fails to state facts sufficient to constitute a cause of action. As
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     such, demurrer is proper.
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14   III.    NOTICE REQUIREMENTS IN UNLAWFUL DETAINERS ARE STRICTLY
             CONSTRUED. THERE IS NO CAUSE OF ACTION FOR UNLAWFUL
15           DETAINER WITHOUT PROPER NOTICE.
16           The rule of liberal construction of pleadings provided by CCP §452 is inapplicable in
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     unlawful detainer actions. Because unlawful detainer is an action seeking forfeiture and is a
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     summary proceeding in which the defendant’s normal procedural rights are limited, the courts
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20   strictly construe the statutory procedures that regulate unlawful detainers and require strict

21   compliance with all statutory notice requirements. California Civil Code §1442; see also Kwok

22   v. Bergren (1982) 130 Cal.App.3d 596, 599; Briggs v. Electronic Memories & Magnetic (1975)
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     53 Cal. App.3d 900, 905; Liebovich v. Shahrokhkany (1997) 56 Cal.App.4th 511, 513. Proper
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     service of a valid notice is a prerequisite to an action in unlawful detainer. CCP §1161; see also
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     Kwok at 599. There is no cause of action for unlawful detainer if statutory notice procedures are
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27   not strictly complied with. Kwok at 599.

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30   Memorandum of Points and Authorities in Support of Demurrer to Complaint

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     IV.    PLAINTIFF’S NOTICE IS DEFECTIVE BECAUSE IT DOES NOT COMPLY
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            WITH THE REQUIREMENTS OF OAKLAND’S JUST CAUSE FOR EVICTION
 2          ORDINANCE.

 3          A.      FORECLOSURE DOES NOT EXEMPT PLAINTIFF FROM THE
                    REQUIREMENTS OF OAKLAND’S JUST CAUSE FOR EVICTION
 4                  ORDINANCE.
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            California courts have acknowledged that tenancies subject to local rent and eviction
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     control ordinances remain subject to those ordinances even where the property is sold in
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 8   foreclosure. Gross v. Superior Court (1985) 171 Cal. App. 3d 265. “’[T]he statutory remedies

 9   for recovery of possession and of unpaid rent do not preclude a defense based on municipal rent
10   control legislation enacted pursuant to the police power imposing rent ceilings and limiting the
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     grounds for eviction for the purpose of enforcing those rent ceilings.’” Gross quoting Birkenfeld
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     v. City of Berkeley (1976) 17 Cal. 3d 129, 149. As such, in a jurisdiction where landlords are
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14   generally required by local law to have good cause to evict tenants, a foreclosing entity also must

15   have good cause to evict tenants. Id.
16          Therefore, because the subject premises are located in Oakland (Plaintiff’s Complaint at
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     ¶2), Plaintiff must comply with the requirements of the Ordinance.
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            B.      PLAINTIFF MUST ALLEGE COVERAGE BY OR EXEMPTION FROM
19                  THE ORDINANCE.
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            If a local rent control ordinance provides that facts showing good cause to evict must
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     appear in the notice of termination, failure to allege facts showing that such a notice was given
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     may subject the complaint to a demurrer for failure to state a cause of action. Staudigl v. Harper
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24   (1946) 76 CA2d 439, 443; Bauer v. Neuzil (1944) 66 CA2d Supp 1020, 1025; Lester v. Isaac

25   (1944) 63 CA2d Supp 851, 852. If the landlord is exempt from the provisions of the ordinance,
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     then facts showing that exemption must be alleged in the complaint. Wheeler v. Bainbridge
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     (1948) 84 Cal.App.2d Supp 849, 850.
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30   Memorandum of Points and Authorities in Support of Demurrer to Complaint

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            This requirement is set forth in the Ordinance, itself: “A notice terminating tenancy
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 2   must... include the following: A statement setting forth the basis for eviction, as described in

 3   Subsections 6(A)(a) [8.22.360 A. 1] through 6(A)(11) [8.22.360A.11].” OMC
 4   §8.22.360(B)(6)(a). Any failure to include such a statement in the notice is a defense to any
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     unlawful detainer action. OMC §8.22.360(B)(6)(e). In the alternative, “[i]f landlord claims the
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     unit is exempt from this Ordinance, the landlord must allege and prove that the unit is covered by
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 8   one of the exemptions enumerated in Section 5 [8.22.350] of this Ordinance. Such allegations

 9   must appear both in the notice of termination of tenancy or notice to quit and in the complaint to
10   recover possession. Failure to make such allegations in the notice shall be a defense to any
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     unlawful detainer action.” OMC §8.22.360(D)(2) (Emphasis Added).
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            Here, the Notice attached to the Complaint contains no mention whatsoever of either a
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14   good cause for the eviction or any grounds for exemption from the Ordinance. Therefore,

15   because the Notice is defective, Plaintiff cannot avail itself of this unlawful detainer action and
16   this demurrer must be sustained without leave to amend.
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     V.     CONCLUSION
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            Plaintiff’s Complaint fails to state a cause of action due to Plaintiff’s failure to comply
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20   with the requirements of Oakland Just Cause for Eviction Ordinance. Because the defect is in the

21   notice, Plaintiff cannot amend the Complaint to state a cause of action. As such, Claimants Jean

22   Hunter and Ahmad Dickson respectfully request that this Demurrer be sustained pursuant to
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     California Code of Civil Procedure §430.10 without leave to amend.
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25   DATED:                                                ___________________________
                                                           Attorney for Claimants
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30   Memorandum of Points and Authorities in Support of Demurrer to Complaint

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 1   _____________________________
     East Bay Community Law Center
 2   2921 Adeline Street
     Berkeley, CA 94703
 3   (510) 548-4040
 4   Attorney for Claimants/Defendants
 5
 6
 7                SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA

 8                               RENE C. DAVIDSON COURTHOUSE
 9
10   LA SALLE NAT’L ASSOCIATION,                  Case No.
     TRUSTEE FOR OWNIT MORTGAGE
11   LOAN TRUST,                                  [PROPOSED] ORDER
12                 Plaintiff,
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     v.
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     _________________; and DOES 1 through
15   100 inclusive,
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                   Defendants.
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     IT IS HEREBY ORDERED:
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     [ ] Defendant’s Demurrer to the Complaint is SUSTAINED without leave to amend.
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     Dated:                                                  ____________________________
23                                                           Judge of the Superior Court
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29   [PROPOSED] ORDER

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