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James Alan Bush 2967 Sherbrooke Way San Jose, California 95127 (408) 569-1634 Defendant in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA SAN JOSE DIVISION

Yvonne Ly, et al., Plaintiffs, v. James Alan Bush, Defendant.

Case No. NOTICE OF MOTION TO RECONSIDER DEFENDANTS MOTION TO QUASH SERVICE OF SUMMONS DEPT: JUDGE: DATE: 4 Hon. Derek Woodhouse May 1st, 2013 9:15 a.m.

TO THE PLAINTIFFS AND THEIR ATTORNEY OF RECORD: PLEASE TAKE NOTICE THAT on May 1st, 2013 at 9:15 a.m., or soon thereafter as a matter can heard, in Department 4 of the above court, located at 191 North First Street, in San Jose, Defendant, James Alan Bush, will move for an order revoking the order of this court made on March 29th, 2013, which denied Defendants Motion to Quash Service of Summons on the erroneous grounds that such a motion is not the proper remedy to raise the issue of the sufciency of the termination notice. // // NOTICE PAGE 1 OF 3

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GROUNDS FOR MOTION This motion is made on the grounds that the court erred in its determination that a motion to quash is not the proper method to test compliance with the noticing requirements of an unlawful detainer action, and erred further by stating that this issue is more properly raised at trial; rather, in Parsons v. Superior Court, 149 CA4th Supp 1 (2008), 58 CR3d 48, the court established that a motion to quash is the only method to test whether the complaint states a cause of action for unlawful detainer when the pleading defect affects personal jurisdiction. The court cannot exercise jurisdiction over the defendant where there is a lack of compliance with jurisdictional prerequisites, and strict compliance with the specically prescribed noticing conditions is a condition precedent to bringing an unlawful detainer. Any adverse judgment against the defendant will be rendered void if it is later determined that proper notice of the termination of tenancy was not given. The motion to be reconsidered was made on the ground that proper service of a notice of termination of tenancy had not been achieved on the defendant, and, therefore, the court lacks jurisdiction over him. RELIEF REQUESTED Defendant respectfully requests that the court grant his motion because the issue of whether an improper notice of termination was used is properly brought in a motion to quash, and not at trial, which is precluded by this fatal defect in the complaint. SUPPORTING PAPERS This motion is based on this notice; all pleadings, papers, and records on le in this action; matters of which the court takes judicial notice; the accompanying supporting memorandum and declaration of the defendant; and, on such evidence as may be presented at the hearing. NOTICE PAGE 2 OF 3

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Dated: April 4th, 2013

Respectfully submitted,

James Alan Bush Defendant in pro per // // // // // // // // // // // // // // // // // // // // // // NOTICE PAGE 3 OF 3

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James Alan Bush 2967 Sherbrooke Way San Jose, California 95127 (408) 569-1634 Defendant in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA SAN JOSE DIVISION

Yvonne Ly, et al., Plaintiffs, v. James Alan Bush, Defendant.

Case No. 1-13-CV-242652 DECLARATION OF JAMES ALAN BUSH IN SUPPORT OF MOTION TO RECONSIDER DEPT: JUDGE: DATE: ACTION FILED: TRIAL DATE: 4 Hon. Derek Woodhouse May 1st, 2013 9:15 am March 12th, 2013 Not set

I, James Alan Bush, hereby declare: 1. I am named as a defendant in this matter and reside at 2967 Sherbrooke Way, in San Jose, which premises is the subject of this action. This declaration provides the facts and circumstances that make determinative the issue of personal jurisdiction, and whether this issue is properly raised in a motion to quash. 2. Plaintiffs served a notice of termination of tenancy for the month of February, 2013. 3. Subsequent to the service of the termination notice, the plaintiffs and I mutually agreed upon an extension through the month of March, 2013. DECLARATION PAGE 1 OF 2

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Plaintiffs prepared a written contract stating the aforementioned terms, and presented it to plaintiff. Plaintiffs also agreed to accept rent for the aforestated month. I made available $600, the amount of one months rent from March 1st, 2013, and until March 5th, 2013, the time period allotted for payment of rent; however, on or after March 6th, 2013, the plaintiffs refused to accept the rent, and otherwise complicated by excuses as to why rent could not be given to them at any given time when I was available to pay it [a copy of the text messages showing these excuses, as well as the plaintiffs obvious attempt to avoid payment of rent without appearing to have rescinded our mutual agreement that it would be accepted, to be presented at the hearing]. Even subsequent to their refusal to accept rent, I remained available to pay rent for the month of March 2013, as was agreed upon between the parties; however, the plaintiffs then served the defendant with a summons and complaint for unlawful detainer. I was never served with a notice of termination of tenancy for the period of March, 2013; moreover, the plaintiffs served the summons and complaint for unlawful detainer prior to the expiration of the agreed upon extension. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on April 4th, 2013, in San Jose, California. Dated: April 4th, 2013

Respectfully submitted,

James Alan Bush Defendant in pro per DECLARATION PAGE 2 OF 2

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James Alan Bush 2967 Sherbrooke Way San Jose, California 95127 (408) 569-1634 Defendant in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA SAN JOSE DIVISION

Yvonne Ly, et al., Plaintiffs, v. James Alan Bush, Defendant.

Case No. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO RECONSIDER DEPT: JUDGE: DATE: ______________________________ ______________________________ ______________________________

REQUIREMENTS OF A MOTION TO RECONSIDER When the party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, makes an application within 10 days after service upon the party of written notice of entry of the order and based on new or different facts, circumstances, or law, to reconsider the matter and modify, amend, or revoke the prior order, it shall be shown by afdavit what application was made before, when and to what judge, what order or decisions were made thereon, and what new or different facts, circumstances, or law are claimed to be shown [Code Civ. Proc. 1008(a)]. // MEMORANDUM PAGE 1 OF 3

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A MOTION TO QUASH IS AUTHORIZED WHEN A DEFENDANT HAS NOT BEEN PROPERLY SERVED WITH A NOTICE OF TERMINATION OF TENANCY Because strict compliance with the specically prescribed notice conditions is a condition precedent to bringing an unlawful detainer, lack of compliance with the jurisdictional prerequisites is properly tested by a motion to quash. JURISDICTION IS REQUIRED FOR AN ENFORCEABLE JUDGMENT A judgment entered without jurisdiction over the party subject to that

judgment is void [Sternbeck v. Buck (1957) 148 CA2d 829, 307 P2d 970]. Service of summons is a jurisdictional requirement, without which the court has no jurisdiction in the action [Chaplin v. Superior Court (1927) 81 CA 367, 253 P 954; CCP 1917]. In an unlawful detainer action, it is of particular importance that proper service of summons be achieved [Greene v. Municipal Court (1975) 51 CA3d D446, 124 CR 139]. Defective service of summons is not service and confers no jurisdiction over the party [Smith v. Jones (1917) 174 C 513, 163 P 890; Sternbeck v. Buck (1957)148 CA2d 829, 307 P2d 970]. Mere knowledge of the action, absent voluntary appearance by the party, is not sufcient for the court to assert its jurisdiction over the party [Coulston v. Cooper (1966) 245 CA2d 866, 54 CR 302; Varra v. Superior Court (1960) 181 CA2d 12, 4 CR 920; see CCP 415.10-415.50]. California CCP 415.10-415.50 govern the methods by which a summons and complaint may be served on a defendant in an unlawful detainer action, and states, in relevant part, that a summons and complaint may be served only after proper notice of termination of tenancy was given. PROPER SERVICE IN THIS MATTER HAS NOT BEEN ACHIEVED As more fully explained in the declaration of the defendant, attached to this motion, proper service of a notice of termination of tenancy has not been achieved on the defendant. A landlord is required by law to terminate a periodic tenancy by serving a termination notice on the tenant that gives a MEMORANDUM PAGE 2 OF 3

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notice period that is at least as long as the term of the lease, i.e., 30 days [CCP 1946]. Civil Code 1946 provides that a tenancy for an unspecied term (usually month-to-month) is deemed to be renewed automatically as provided for in Civil Code 1946.1, which states that tenancy is deemed to be renewed each month unless one of the parties gives written notice to the other of his intention to terminate same. Although the plaintiffs gave a termination notice to the defendant for February, 2013, by accepting a subsequent agreement to extend the tenancy into March, 2013, the plaintiffs waived their right to terminate the tenancy under that notice. Because the termination notice was rescinded by the agreement, both implicitly and explicitly, and because the plaintiffs agreed to accept rent for March, 2013, the defendant detrimentally relied on the extension. If an improper termination notice was used or it appears on the face of the complaint that the notice was improperly served, the defect is fatal, the complaint cannot be amended, and the plaintiffs must start over. PRAYER FOR RELIEF WHEREFORE, AND FOR ALL OF THE ABOVE REASONS, Defendant prays that the court grant this motion and revoke the order denying the motion to quash service of summons, and order that a hearing be held for its reconsideration. Dated: April 4th, 2013

Respectfully submitted,

James Alan Bush Defendant in pro per // MEMORANDUM PAGE 3 OF 3