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ALMA DELGADO
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2039 West 29th Street
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Los Angeles,
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323-219-9591
CA
90018
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Defendant in Pro Per
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SUPERIOR COURT, STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
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LOS ANGELES JUDICIAL DISTRICT
10 LUXD OT , LLC 11 12 13 14 15 16
) ) ) ) Plai ntif f. ) ) vs. ) ) AL M A D E L G A D O ) ) Defe ndan t s Do e s 1 t o 1 0 ) ) ____________________________________)
C as e No . 1 0U040 67 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
D at e o f He aring : Time of Hearing: Dept.:
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TO ALL PARTIES :
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PLEASE TAKE NOTICE THAT on ___________________________, 2010, at
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__________ in Department NO. _________________ at the above entitled
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court, Located at 110 NORTH GRAND AVENUE , LOS ANGELES, CA 90012,
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Defendant, ALMA DELGADO, Will and here by does move the Court for an
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order sustaining a general Demurrer to the unlawful detainer complaint
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filed by Plaintiff with out leave to amend.
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26 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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This Demurrer is made pursuant to Code of Civil Procedure § 1170
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on the grounds that the three-day Notice served on Defendant is
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Defective as it does not contain the information required by CCP §
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1161(2) and further that the Three Day notice was issued to a bona fide
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tenant as described in S896, Sec. 702(b) and thus is fatally defective
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and will not support an unlawful detainer action.
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This demurrer is based upon this notice of demurrer, the attached demurrer, the memorandum of points of authorities, and upon such oral
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and documentary evidence as may be presented by Defendant upon the
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hearing of Demurrer.
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Dated: ________________________
_______________________________
15 ALMA DELGADO 16 DEFENDANT, IN PRO PER 17 18 19 20 21 22 23 24 25 26 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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DEMURRER TO PLAINTIFF’S COMPLAINT
3 Defendant, ALMA DELGADO (“Defendant”) hereby generally demurs to the 4 unlawful detainer complaint filed by LUXDOT, LLc (“Plaintiff”) on the 5 following grounds; 6 FIRST GROUND FOR DEMURRER
7 1. Defendant generally demurs to the unlawful detainer complaint filed 8 by plaintiff on the grounds that the three day notice alleged in the 9 complaint was issued to a bona fide tenant (post foreclosure) as 10 described in S896, Sec. 702(b) to which a 90 day notice is required, 11 Thus it is Defective and will not support an unlawful detainer action. 12 SECOND GROUND FOR DEMURRER
13 2: Defendant Generally Demurs to the unlawful detainer complaint filed 14 by Plaintiff on the grounds that the Three-day Notice alleged in the 15 complaint was not properly served to the Defendant. The Defendant never 16 received this notice prior to its appearance in the unlawful detainer 17 complaint. Thus it is Defective and will not support an unlawful 18 detainer action. Code of Civil Procedure § 1162 19 20 21 Dated: ________________________
_______________________________
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ALMA DELGADO
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DEFENDANT, IN PRO PER
25 26 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
1 2 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
4 DEFENDAMT’S DEMURRER IS PROPERLY BEFOR THE COURT a defendant in an 5 unlawful detainer action may demur. C.C.P. § 1170. Although dicta in 6 Delta Imports v Municipal Court, 146 Cal.App.3d.1033 (1983) suggests 7 that a motion to quash is the remedy where a complaint fails to state a 8 cause of action in unlawful detainer, Delta did not overrule prior 9 cases. See Hinman v. Wagnon, 172 Cal. App. 2d 24 (1959), where the 10 court held that a demurrer was proper where the incorporated 3-day 11 notice was defective on its face. The court sustained a dismissal 12 following sustaining the demurer with out leave to amend. 13 The periods for noticing hearing on a demurrer are not stated in 14 the unlawful detainer stautes, so C.C.P. Section 1177 incorporates the 15 regular provisions of the Code of Civil Procedure, such as C.C.P. 16 Section 1005 requiring that motions be noticed on 21 day’s notice, plus 17 five days for mailing. Rule 325(b). California Rules of Court, 18 specifies that demurrer shall be in accordance with section 1005. In 19 the absence of anything with in the unlawful detainer statutes setting 20 a shorter time. Demurrers must be noticed on at least 21 or 26 days’ 21 notice. 22 1. Defendant Generally Demurs to the unlawful detainer complaint filed 23 by plaintiff on the Grounds that the Three-day Notice alleged in the 24 complaint fails to include specific contact information in the form 25 of a mailing address as required by Code of Civil Procedure § 1161 26 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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Thus complaint Fails to state cause of action in unlawful detainer
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based on a properly formatted and executed Three-day Notice, or any
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NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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other cause of action in unlawful Detainer.
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number, and address of the person…” Code of Civil Procedure § 1161(2)
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2.
“…the name, telephone
Defendant generally demurs to the unlawful detainer complaint filed
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by plaintiff on the grounds that the three day notice alleged in the
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complaint was issued to a bona fide tenant (post foreclosure) as
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described in S896, Sec. 702(b) to which a 90 day notice is required,
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Thus it is Defective and will not support an unlawful detainer
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action. S896, Sec 702(b) “(b) Bona Fide Lease or Tenancy for the
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purposes of this section, a lease or tenant shall be considered bona
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fide only if, (1) the mortgagor or the child, spouse, or parent of
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the mortgagor under the contract is not the tenant;(2) the lease or
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tenancy is the result of an arms-length transaction and (3) the
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lease or tenancy requires the receipt for rent that is not
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substantially less than fair market rent for the property or the
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unit’s rent is reduced or subsidized due to a Federal, State, or
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local subsidy”
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3. Defendant Generally Demurs to the unlawful detainer complaint filed
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by Plaintiff on the grounds that the Three-day Notice alleged in the
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complaint was not properly served to the Defendant. The Defendant
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never received this notice prior to its appearance in the unlawful
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detainer complaint. Thus it is Defective and will not support an
26 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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unlawful detainer action. Code of Civil Procedure § 1162 ”The
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notices required by Sections 1161 and 1161a may be served, either:
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1. By delivering a copy to the tenant personally; or, 2. If he or
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she is absent from his or her place of residence, and from his or
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her usual place of business, by leaving a copy with some person of
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suitable age and discretion at either place, and sending a copy
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through the mail addressed to the tenant at his or her place of
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residence; or, 3. If such place of residence and business cannot be
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ascertained, or a person of suitable age or discretion there cannot
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be found, then by affixing a copy in a conspicuous place on the
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property, and also delivering a copy to a person there residing, if
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such person can be found; and also sending a copy through the mail
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addressed to the tenant at the place where the property is situated.
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Service upon a subtenant may be made in the same manner.”
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4: This Demurrer is made pursuant to Code of Civil Procedure § 1170
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“1170.
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may appear and answer or demur.”
On or before the day fixed for his appearance, the defendant
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Dated: ________________________
_______________________________
23 ALMA DELGADO 24 DEFENDANT, IN PRO PER 25 26 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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