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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Mar-06-2014 03:31 pm
Case Number: CUD-13-645401
Filing Date: Mar-06-2014 03:30 pm
Filed by: WESLEY G. RAMIREZ
Juke Box: 001 Image: 04402447
REPLY
SBERLO, YOEL, TRUSTEE FOR SBERLO FAMILY TRUST VS. YARNG
ALTAWAL et al
001004402447
Instructions:
Please place this sheet on top of the document to be scanned.27
28
©
Mark Hooshmand (SBN 194878)
Tan Hansen (SBN 255449)
Hooshmand Law Group
22 Battery St, Ste. 610
San Francisco, CA 94111
Tel: (415) 318-5709
Fax: (415) 376-5897
Attorney for Defendant Altawal Yarng
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
YOEL SBERLO, TRUSTEE FOR SBERLO_ )
FAMILY TRUST )
)
)
Plaintiff, )
)
) VERDICT
vs. )
YARNG ALTAWAL, et al. ) Date:
) Dept:
) Time:
Defendants. ) Judge:
)
)
)
CASE: CUD-13-645401
REPLY MEMORANDUM OF DEFENDANT
YARNG ALTAWAL FOR A COMPLETE,
OR IN THE ALTERNATIVE PARTIAL,
JUDGMENT NOTWITHSTANDING THE
30
FIT
an Francisco
MAR 0 2014
CLE
on RE THE courr|
uty Clerk]
WwI4
March 13,2613
624
9:00 a.m.
Hon. Jerome Benson
REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR
IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT
REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE
PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 1© 3°
Defendant Yarng Altawal replies in support of his motion for a judgment
notwithstanding the verdict where the Plaintiff did not identify any actual evidence in
support of their untimely opposition. For these reasons the judgment must be set aside
and a judgment entered ‘in favor of Defendant Yarng Altawal. Plaintiff's opposition was
very untimely as it was supposed to be filed pursuant to code on February 28, 2014 and
instead it was not received until late on March 4, 2014 and not received by mail until
March 6, 2014. The Defendant was prejudiced by this delay given the complicated
issues and the Defendant is attempting to file this initial reply followed by a
supplemental reply. Plaintiff's opposition should be stricken as a result of the late filing.
Also, Plaintiff's opposition is unsupported by any declaration or actual evidence and it
should be disregarded for this reason as well.
In addition, it is important to note that the Plaintiff has put forth facts and law that
are not true. For example, either Section 6.15A or Section 12.20 must apply this case
given the prohibition on subletting and the claim that the Plaintiff is evicting based on
House Rules. Therefore, where there was no evidence at all that Mr. Altawal signed
anything which would allow the House Rules to apply and no proof that the prior
landlord ever explained subletting to him, Mr. Altawal cannot be evictedf or subletting.
In addition, the Three Day Notice for Subletting does not include the required language
of lease forfeiture. Therefore, Mr. Altawal could not be evicted for subletting. Plaintiff
intentionally misconstrues the law in an attempt to avoid the legal requirements in this
situation and such actions cannot be condoned.
I. ADDITIONAL LEGAL ARGUMENT IN SUPPORT OF MOTION
A. WHERE THE SECOND THREE DAY NOTICE DID NOT DEMAND
POSSESSION, TERMINATE THE LEASE OR DECLARE A FORFEITURE IT
CANNOT SERVE AS THE BASIS FOR EVICTION AND THE LEASE CONTINUES
“{T]he judgment shall also declare the forfeiture of that lease or agreement if the
notice required by Section 1161 states the election of the landlord to declare the forfeiture
thereof, but if that notice does not so state that election, the lease or agreement shall not be
REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE
PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 227
28
© °
forfeited.” CCP 1174. Here the Second Three Day Notice did not include an election by
the landlord to declare the forfeiture of the lease. Therefore, the lease cannot be forfeited
and it still remains in effect entitling Mr. Altawal to possession.
B. WHERE PLAINTIFF ADMITS THAT IT RELIED ON HOUSE RULES
AND_ THEN OFFERS NO EVIDENCE THAT MR. ALTAWAL EVER SIGNED
ANYTHING THE PLAINTIFF HAS ADMITTED IT COULD NOT EVICT FOR
SUBLETTING
Plaintiff clearly did not and could not comply with Section 6.15A and Plaintiff put
forth no evidence that (1) the prohibition against sublet or assignment is set forth in
enlarged or boldface type in the lease or rental agreement and is separately initialed by
the tenant; or (2) the landlord has provided the tenant with a written explanation of the
meaning of the absolute prohibition, either as part of the written lease or rental
agreement, or in a separate writing.
Plaintiff then argues both that it did and did not rely on the House Rules.
However, Plaintiff did not even attempt to comply with Section 12.20 requiring the
tenant to sign the House Rules before they can be effective. Plaintiff argues that they do
not like the House Rules but the House Rules are the law. So either way the Plaintiff
was prevented from evicting based on subletting.
In addition, since Plaintiff admits that it relied on the House Rules in the eviction,
the judgment must be set aside because Plaintiff has not pointed to any evidence that Mr.
Altawal was bound by the House Rules. Section 12.20 prohibits an eviction based on
House Rules unless signed by Mr. Altawal and clearly Mr. Altawal never signed the
House Rules. Plaintiff specifically stated that they evicted for Mr. Altawal not seeking
consent to sublet and therefore that is a term as imposed by the House Rules.
Remarkably Plaintiff argues that Civil Code 827 applies but they know that is completely
false. Plaintiff states “Plaintiff's House Rulses changed and modified Defendant's rental
agreement upon 30 days notice per Civil Code 827 ...”.. MPA Opposition 8:23-24.
Plaintiff states that the jury was allowed to consider this issue but clearly there was no
REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE
PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 3© 3
evidence allowing the jury to consider this issue and Plaintiff certaintly points to no
actual evidence in support of their opposition. Then later Plaintiff states that “Plaintiff
maintains that he did not evict Defendant based on the House Rules.” 9:13. This
statement is remarkable as just on the previous page Plaintiff states that the House Rules
were at issue.
Also remarkable Plaintiff states’ The complaint refers to a written (Susan
Altawal's) written lease. Therefore Defendant ALTAWAL was being evicted for
breaching his written rental contract and violating state law, not solely _for violating
House Rules that he did not agree sign off on. MPA Opposition 11:17-19. Therefore,
Plaintiff actually admits that Mr. Altawal never agreed to the House Rules. If Plainitff
has not decided whether it relied on the House Rules or not at this point, clearly there
was no evidence that Mr. Altawal had agreed to the House Rules. For these reasons, the
judgment must be set aside.
C. PLAINTIFF_CANNOT_ ARGUE THAT SUBLETTING IS INCURABLE
WHERE SUBLETTING IS SPECIFICALLY MENTIONED IN THE RENT
ORDINANCE AND CCP 1161.3 AS A CURABLE BREACH
Plaintiff did not address the San Francisco Rent Ordinance requiring the option of
cure in all circumstances despite this isseu being raised. Therefore, Plaintiff has
conceded that the Defendant was entitlted to the chance to cure. In addition, Plaintiff did
not even address CCP 1161.3 which mentions subletting and curable breaches.
Defendant cited the difference between the two sections where CCP 1161.4 may apply
only when the tenant is listed on the lease. Since CCP 1161.3 actually identifies
subletting as well and requires that the tenant be given the chance to cure, the Three Day
Notice was defective as Mr. Altawal did not have the chance to cure.
D. PLAINTIFF OFFERS NO LEGAL ARGUMENT TO COUNTER THE
CLEAR STATE OF THE LAW THAT DEFENDANT'S RENT OBLIGATION WAS
DISCHARGED AT THE TIME IT WAS PAID AND ACCEPTED BY THE
PLAINTIFF
Defendant cited Civil Code § 1473 and Civil Code 1511 which both indicate that
performance by the tenant satisfies his legal obligation. The Plaintiff cites no legal
REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE
PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 4© 38
authority to the contrary. The Plaintiff chose not to deposit Defendant's rent checks but
that does not change the operation of law as it applies to the present situation. Therefore,
according to the law, Defendant discharged his rent obligations by payment and the
Three Day Notice for Rent is invalid. Furthermore, Plainitff keeps stating that the
Defendant's attorney knew they were being held but that was three months after the
Plaintiff had started holding the rent checks. Plaintiff has no explanation or response for
the January through March 2013 time frame when the checks were being delivered and
accepted.
Plaintiff admits never returning the checks despite not knowing whether they
could have been redeposited. So the Defendant was left very concerned and confused due
to the Plaintiff's actions and the Plaintiff should not take advantage of their actions. Ata
minimum, before issuing a Three Day Notice, the Plaintiff should have contacted Mr.
Altawal to discuss and remedy the situation. The Plaintiff did not discuss the issue
because they had already decided to terminate the tenancy and they wanted to see if they
could obtain additional monies prior to eviction for subletting. These actions should not
be accepted in a civilized society and the proper step would have been to discuss the
situation with Mr. Altawal and to remedy the situation. Mr. Altawal immediately went
to his bank and remedied the situation. The fact that the Plaintiff chose to complicate the
situation cannot be used as a basis to evict. For these reasons the First Three Day Notice
is invalid and cannot serve as the basis for eviction.
E. PLAINTIFF OFFERS NO AUTHORITY TO COUNTER THE LEGAL
REALITY OF CREDIT FOR THE PAYMENT MADE IN MAY 2013
Plaintiff offers no legal explanation for how the May 2013 payment should be
treated. It was a payment that was deposited after the Three Day Notice thereby reducing
the monies owed on Mr. Altawal's account prior to the filing of the unlawful detainer
lawsuit. Therefore, at the time the unlawful detainer lawsuit was filed the amount sought
was incorrect as it overstated the amount due since Defendant was entitled to a credit by
REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE
PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 527
28
© °
his May 2013 payment. In fact, Defendant's account was credited for the payment.
Therefore, the First Three Day Notice cannot serve as the basis for eviction.
F. WAIVER OCCURRED BECAUSE THE PLAINTIFF NEVER REJECTED
THE RENT
To prevent waiver, the Plaintiff had to have rejected the rent. Here the Plaintiff
kept the rent. Also the lease did not have an anti-waiver provision. Therefore, there is
no authority that holding rent checks prevents waiver. The only letter sent was after
termination and therefore that cannot serve to prevent the waiver of earlier breaches
before termination that occurred before rent checks were accepted without any notice to
the Defendant as to why they were being held.
G. THE FIRST THREE DAY NOTICE WAS INVALIDATED BY THE
SECOND THREE DAY NOTICE BECAUSE THE SECOND THREE DAY NOTICE
SQUGHT COMPLIANCE WITH THE LEASE THEREBY CONFIRMING A LEASE
EXISTED AT THE TIME
Plaintiff cites no authority to counter the fact that if a lease expires due to non-
payment of rent, and the Plaintiff then serves a new notice demading compliance with
the lease, then the second notice revives the lease. The Plaintiff could have chosen to
move to evict based on the notice to pay rent but instead chose to serve a new notice that
it had intended to serve as the basis for the eviction. Therefore the second notice
invalidated the first because it revived the lease and gave Mr. Altawal the opportunity to
take certain steps.
H._ PLAINTIFF DOES NOT RESPOND TO THE ARGUMENT THAT THE
PLAINTIFF _EVICTED FOR HAVING GUESTS WITHOUT ANY NOTICE OR
CHANCE TO CURE THEREBY CONFIRMING THAT A CHANCE TO CURE WAS
REQUIRED
Plaintiff admits it evicted for having guests but does not dispute the fact that the
Plaintiff gave no notice that Mr. Altawal was violating any guest provision and also that
Mr. Altawal was never given the opportunity to cure any guest violation. Plaintiff
makes many conflicting statements but does not address the inclusion of a curable breach
in anon-curable notice. The only case Plaintiff cites Richard v. Degen & Brody has been
REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE
PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 6© °
overruled as it applies to subletting and has been heavily criticized since three day
notices must be true and correct in all aspects. Kendall v. Pestana (1985) 40 Cal.3d 488.
Just as where a Three Day Notice that seeks a dollar too much in rent is invalid, a three
day notice that includes items for which notice was required seeks relief to which the
landlord is not entitled and therefore invalidates the notice. Nourafchan v. Miner (1985)
169 Cal.App.3d 746.
II.CONCLUSION
Defendant Yarng Altawal respectfully requests that the Court grant Mr. Altawal's
Motion for a Judgment Notwithstanding the Verdict where there is no conflicting
evidence as to the issues raised in this motion. The Plaintiff offered no evidence of
compliance with Section 6.15A or Section 12.20 and therefore there could be no eviction
for subletting. The Plaintiff provided no legal authority to counter the Civil Code
sections requiring that Mr. Altawal be credited for his timely rent payments and the
invalidation of the first notice by the service of the second notice. Plaintiff provided no
legal authority to address the failure to include the required language of the forfeiture of
the lease in the Second Three Day Notice and as a result the lease remains. For these
reasons, Defendant's motion should be granted and Judgment should be entered in favor
of Yarng Altawal.
Date: March 6, 2014 Respectfully submitted,
HOOSHMAND LAW GROUP
ek |
Mark Hooshmand, Esq.
Attorney for Defendant
REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE
PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 7© 3°
DECLARATION OF MARK HOOSHMAND IN SUPPORT OF MOTION
I, MARK HOOSHMAND, declare the following:
1. I am the attorney for Defendant Yarng Altawal.
2. The facts stated within this declaration are based upon my personal knowledge,
except for those which are based on information and belief, and I am competent to
testify as to these facts.
3. Plaintiff's opposition was due to be filed and served pursuant to Code by February
28, 2014 and it was not received by fax until the afternoon of March 4, 2014. This
late opposition directly prejudiced my ability to respond to the opposition and it
should be stricken.
4. I have reviewed Plaintiff's opposition and I cannot where Plaintiff identified any
actual evidence that would entitle the Plaintiff to evict where both Sections 6.15A
and Section 12.20 prevent an eviction under these circumstances.
5. There was absolutely no evidence that the prior landlord ever complied with
Section 6.15A and Mr. Altawal and Mrs. Altawal never agreed to the House Rules
in writing as required to evict under Section 12.20. The Plaintiff was always free
to ask Mr. Altawal to sign a lease and they never did.
6. This case was particularly difficult because the Plaintiff kept changing what law
they were relying on and even now they are attempting to argue different ultimate
facts as to whether they relied on the lease or the House Rules to evict. This
change in position makes it impossible to address their arguments on such a short
time frame and prevents the use of the unlawful detainer process which requires
strict pleading and compliance.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Date: March 6, 2014 Nor I)
Mark Hooshmand, Esq.
REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE
PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 8© °
PROOF OF SERVICE
I, Diana Luong, certify that I am over the age of 18 and not a party to this action. My
business address is 22 Battery Street, Suite 610, San Francisco, CA 94111. On the said date
below, I served a copy of the attached:
REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR
IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT
XXX by placing a true copy of the document (s) listed above for collection and mailing
following the firm's ordinary business practice in a sealed envelope with postage prepaid for
deposit in the United States mail at San Francisco, California, pursuant to CCP §§1013a(3),
addressed as set forth below.
Karen Uchiyama
Law Offices of Karen Uchiyama
1441 Baker Street
San Francisco, CA 94115
XXX by facsimile transmission at or about 3:10 PM, on March 6, 2014. This document was
transmitted by using a facsimile machine that complies with California Code of Civil
Procedure section 1013 (a), facsimile number (415) 376-5897. The transmission was reported
as complete and without error. A copy of the transmissort, properly issued by the transmitting
machine, is attached. The names and facsimile numbers of the person(s) served are as set forth
below.
Karen Uchiyama
Law Offices of Karen Y. Uchiyama
1441 Baker Street
San Francisco, CA 94115
Facsmile: (415) 563-9304
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 the said date below, at San
Francisco, California.
Date: March 6, 2014 Ch.
Diana Luong \
PROOF OF SERVICE
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Mar-06-2014 03:31 pm Case Number: CUD-13-645401 Filing Date: Mar-06-2014 03:30 pm Filed by: WESLEY G. RAMIREZ Juke Box: 001 Image: 04402447 REPLY SBERLO, YOEL, TRUSTEE FOR SBERLO FAMILY TRUST VS. YARNG ALTAWAL et al 001004402447 Instructions: Please place this sheet on top of the document to be scanned.27 28 © Mark Hooshmand (SBN 194878) Tan Hansen (SBN 255449) Hooshmand Law Group 22 Battery St, Ste. 610 San Francisco, CA 94111 Tel: (415) 318-5709 Fax: (415) 376-5897 Attorney for Defendant Altawal Yarng SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO YOEL SBERLO, TRUSTEE FOR SBERLO_ ) FAMILY TRUST ) ) ) Plaintiff, ) ) ) VERDICT vs. ) YARNG ALTAWAL, et al. ) Date: ) Dept: ) Time: Defendants. ) Judge: ) ) ) CASE: CUD-13-645401 REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE 30 FIT an Francisco MAR 0 2014 CLE on RE THE courr| uty Clerk] WwI4 March 13,2613 624 9:00 a.m. Hon. Jerome Benson REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 1© 3° Defendant Yarng Altawal replies in support of his motion for a judgment notwithstanding the verdict where the Plaintiff did not identify any actual evidence in support of their untimely opposition. For these reasons the judgment must be set aside and a judgment entered ‘in favor of Defendant Yarng Altawal. Plaintiff's opposition was very untimely as it was supposed to be filed pursuant to code on February 28, 2014 and instead it was not received until late on March 4, 2014 and not received by mail until March 6, 2014. The Defendant was prejudiced by this delay given the complicated issues and the Defendant is attempting to file this initial reply followed by a supplemental reply. Plaintiff's opposition should be stricken as a result of the late filing. Also, Plaintiff's opposition is unsupported by any declaration or actual evidence and it should be disregarded for this reason as well. In addition, it is important to note that the Plaintiff has put forth facts and law that are not true. For example, either Section 6.15A or Section 12.20 must apply this case given the prohibition on subletting and the claim that the Plaintiff is evicting based on House Rules. Therefore, where there was no evidence at all that Mr. Altawal signed anything which would allow the House Rules to apply and no proof that the prior landlord ever explained subletting to him, Mr. Altawal cannot be evictedf or subletting. In addition, the Three Day Notice for Subletting does not include the required language of lease forfeiture. Therefore, Mr. Altawal could not be evicted for subletting. Plaintiff intentionally misconstrues the law in an attempt to avoid the legal requirements in this situation and such actions cannot be condoned. I. ADDITIONAL LEGAL ARGUMENT IN SUPPORT OF MOTION A. WHERE THE SECOND THREE DAY NOTICE DID NOT DEMAND POSSESSION, TERMINATE THE LEASE OR DECLARE A FORFEITURE IT CANNOT SERVE AS THE BASIS FOR EVICTION AND THE LEASE CONTINUES “{T]he judgment shall also declare the forfeiture of that lease or agreement if the notice required by Section 1161 states the election of the landlord to declare the forfeiture thereof, but if that notice does not so state that election, the lease or agreement shall not be REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 227 28 © ° forfeited.” CCP 1174. Here the Second Three Day Notice did not include an election by the landlord to declare the forfeiture of the lease. Therefore, the lease cannot be forfeited and it still remains in effect entitling Mr. Altawal to possession. B. WHERE PLAINTIFF ADMITS THAT IT RELIED ON HOUSE RULES AND_ THEN OFFERS NO EVIDENCE THAT MR. ALTAWAL EVER SIGNED ANYTHING THE PLAINTIFF HAS ADMITTED IT COULD NOT EVICT FOR SUBLETTING Plaintiff clearly did not and could not comply with Section 6.15A and Plaintiff put forth no evidence that (1) the prohibition against sublet or assignment is set forth in enlarged or boldface type in the lease or rental agreement and is separately initialed by the tenant; or (2) the landlord has provided the tenant with a written explanation of the meaning of the absolute prohibition, either as part of the written lease or rental agreement, or in a separate writing. Plaintiff then argues both that it did and did not rely on the House Rules. However, Plaintiff did not even attempt to comply with Section 12.20 requiring the tenant to sign the House Rules before they can be effective. Plaintiff argues that they do not like the House Rules but the House Rules are the law. So either way the Plaintiff was prevented from evicting based on subletting. In addition, since Plaintiff admits that it relied on the House Rules in the eviction, the judgment must be set aside because Plaintiff has not pointed to any evidence that Mr. Altawal was bound by the House Rules. Section 12.20 prohibits an eviction based on House Rules unless signed by Mr. Altawal and clearly Mr. Altawal never signed the House Rules. Plaintiff specifically stated that they evicted for Mr. Altawal not seeking consent to sublet and therefore that is a term as imposed by the House Rules. Remarkably Plaintiff argues that Civil Code 827 applies but they know that is completely false. Plaintiff states “Plaintiff's House Rulses changed and modified Defendant's rental agreement upon 30 days notice per Civil Code 827 ...”.. MPA Opposition 8:23-24. Plaintiff states that the jury was allowed to consider this issue but clearly there was no REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 3© 3 evidence allowing the jury to consider this issue and Plaintiff certaintly points to no actual evidence in support of their opposition. Then later Plaintiff states that “Plaintiff maintains that he did not evict Defendant based on the House Rules.” 9:13. This statement is remarkable as just on the previous page Plaintiff states that the House Rules were at issue. Also remarkable Plaintiff states’ The complaint refers to a written (Susan Altawal's) written lease. Therefore Defendant ALTAWAL was being evicted for breaching his written rental contract and violating state law, not solely _for violating House Rules that he did not agree sign off on. MPA Opposition 11:17-19. Therefore, Plaintiff actually admits that Mr. Altawal never agreed to the House Rules. If Plainitff has not decided whether it relied on the House Rules or not at this point, clearly there was no evidence that Mr. Altawal had agreed to the House Rules. For these reasons, the judgment must be set aside. C. PLAINTIFF_CANNOT_ ARGUE THAT SUBLETTING IS INCURABLE WHERE SUBLETTING IS SPECIFICALLY MENTIONED IN THE RENT ORDINANCE AND CCP 1161.3 AS A CURABLE BREACH Plaintiff did not address the San Francisco Rent Ordinance requiring the option of cure in all circumstances despite this isseu being raised. Therefore, Plaintiff has conceded that the Defendant was entitlted to the chance to cure. In addition, Plaintiff did not even address CCP 1161.3 which mentions subletting and curable breaches. Defendant cited the difference between the two sections where CCP 1161.4 may apply only when the tenant is listed on the lease. Since CCP 1161.3 actually identifies subletting as well and requires that the tenant be given the chance to cure, the Three Day Notice was defective as Mr. Altawal did not have the chance to cure. D. PLAINTIFF OFFERS NO LEGAL ARGUMENT TO COUNTER THE CLEAR STATE OF THE LAW THAT DEFENDANT'S RENT OBLIGATION WAS DISCHARGED AT THE TIME IT WAS PAID AND ACCEPTED BY THE PLAINTIFF Defendant cited Civil Code § 1473 and Civil Code 1511 which both indicate that performance by the tenant satisfies his legal obligation. The Plaintiff cites no legal REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 4© 38 authority to the contrary. The Plaintiff chose not to deposit Defendant's rent checks but that does not change the operation of law as it applies to the present situation. Therefore, according to the law, Defendant discharged his rent obligations by payment and the Three Day Notice for Rent is invalid. Furthermore, Plainitff keeps stating that the Defendant's attorney knew they were being held but that was three months after the Plaintiff had started holding the rent checks. Plaintiff has no explanation or response for the January through March 2013 time frame when the checks were being delivered and accepted. Plaintiff admits never returning the checks despite not knowing whether they could have been redeposited. So the Defendant was left very concerned and confused due to the Plaintiff's actions and the Plaintiff should not take advantage of their actions. Ata minimum, before issuing a Three Day Notice, the Plaintiff should have contacted Mr. Altawal to discuss and remedy the situation. The Plaintiff did not discuss the issue because they had already decided to terminate the tenancy and they wanted to see if they could obtain additional monies prior to eviction for subletting. These actions should not be accepted in a civilized society and the proper step would have been to discuss the situation with Mr. Altawal and to remedy the situation. Mr. Altawal immediately went to his bank and remedied the situation. The fact that the Plaintiff chose to complicate the situation cannot be used as a basis to evict. For these reasons the First Three Day Notice is invalid and cannot serve as the basis for eviction. E. PLAINTIFF OFFERS NO AUTHORITY TO COUNTER THE LEGAL REALITY OF CREDIT FOR THE PAYMENT MADE IN MAY 2013 Plaintiff offers no legal explanation for how the May 2013 payment should be treated. It was a payment that was deposited after the Three Day Notice thereby reducing the monies owed on Mr. Altawal's account prior to the filing of the unlawful detainer lawsuit. Therefore, at the time the unlawful detainer lawsuit was filed the amount sought was incorrect as it overstated the amount due since Defendant was entitled to a credit by REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 527 28 © ° his May 2013 payment. In fact, Defendant's account was credited for the payment. Therefore, the First Three Day Notice cannot serve as the basis for eviction. F. WAIVER OCCURRED BECAUSE THE PLAINTIFF NEVER REJECTED THE RENT To prevent waiver, the Plaintiff had to have rejected the rent. Here the Plaintiff kept the rent. Also the lease did not have an anti-waiver provision. Therefore, there is no authority that holding rent checks prevents waiver. The only letter sent was after termination and therefore that cannot serve to prevent the waiver of earlier breaches before termination that occurred before rent checks were accepted without any notice to the Defendant as to why they were being held. G. THE FIRST THREE DAY NOTICE WAS INVALIDATED BY THE SECOND THREE DAY NOTICE BECAUSE THE SECOND THREE DAY NOTICE SQUGHT COMPLIANCE WITH THE LEASE THEREBY CONFIRMING A LEASE EXISTED AT THE TIME Plaintiff cites no authority to counter the fact that if a lease expires due to non- payment of rent, and the Plaintiff then serves a new notice demading compliance with the lease, then the second notice revives the lease. The Plaintiff could have chosen to move to evict based on the notice to pay rent but instead chose to serve a new notice that it had intended to serve as the basis for the eviction. Therefore the second notice invalidated the first because it revived the lease and gave Mr. Altawal the opportunity to take certain steps. H._ PLAINTIFF DOES NOT RESPOND TO THE ARGUMENT THAT THE PLAINTIFF _EVICTED FOR HAVING GUESTS WITHOUT ANY NOTICE OR CHANCE TO CURE THEREBY CONFIRMING THAT A CHANCE TO CURE WAS REQUIRED Plaintiff admits it evicted for having guests but does not dispute the fact that the Plaintiff gave no notice that Mr. Altawal was violating any guest provision and also that Mr. Altawal was never given the opportunity to cure any guest violation. Plaintiff makes many conflicting statements but does not address the inclusion of a curable breach in anon-curable notice. The only case Plaintiff cites Richard v. Degen & Brody has been REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 6© ° overruled as it applies to subletting and has been heavily criticized since three day notices must be true and correct in all aspects. Kendall v. Pestana (1985) 40 Cal.3d 488. Just as where a Three Day Notice that seeks a dollar too much in rent is invalid, a three day notice that includes items for which notice was required seeks relief to which the landlord is not entitled and therefore invalidates the notice. Nourafchan v. Miner (1985) 169 Cal.App.3d 746. II.CONCLUSION Defendant Yarng Altawal respectfully requests that the Court grant Mr. Altawal's Motion for a Judgment Notwithstanding the Verdict where there is no conflicting evidence as to the issues raised in this motion. The Plaintiff offered no evidence of compliance with Section 6.15A or Section 12.20 and therefore there could be no eviction for subletting. The Plaintiff provided no legal authority to counter the Civil Code sections requiring that Mr. Altawal be credited for his timely rent payments and the invalidation of the first notice by the service of the second notice. Plaintiff provided no legal authority to address the failure to include the required language of the forfeiture of the lease in the Second Three Day Notice and as a result the lease remains. For these reasons, Defendant's motion should be granted and Judgment should be entered in favor of Yarng Altawal. Date: March 6, 2014 Respectfully submitted, HOOSHMAND LAW GROUP ek | Mark Hooshmand, Esq. Attorney for Defendant REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 7© 3° DECLARATION OF MARK HOOSHMAND IN SUPPORT OF MOTION I, MARK HOOSHMAND, declare the following: 1. I am the attorney for Defendant Yarng Altawal. 2. The facts stated within this declaration are based upon my personal knowledge, except for those which are based on information and belief, and I am competent to testify as to these facts. 3. Plaintiff's opposition was due to be filed and served pursuant to Code by February 28, 2014 and it was not received by fax until the afternoon of March 4, 2014. This late opposition directly prejudiced my ability to respond to the opposition and it should be stricken. 4. I have reviewed Plaintiff's opposition and I cannot where Plaintiff identified any actual evidence that would entitle the Plaintiff to evict where both Sections 6.15A and Section 12.20 prevent an eviction under these circumstances. 5. There was absolutely no evidence that the prior landlord ever complied with Section 6.15A and Mr. Altawal and Mrs. Altawal never agreed to the House Rules in writing as required to evict under Section 12.20. The Plaintiff was always free to ask Mr. Altawal to sign a lease and they never did. 6. This case was particularly difficult because the Plaintiff kept changing what law they were relying on and even now they are attempting to argue different ultimate facts as to whether they relied on the lease or the House Rules to evict. This change in position makes it impossible to address their arguments on such a short time frame and prevents the use of the unlawful detainer process which requires strict pleading and compliance. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: March 6, 2014 Nor I) Mark Hooshmand, Esq. REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT 8© ° PROOF OF SERVICE I, Diana Luong, certify that I am over the age of 18 and not a party to this action. My business address is 22 Battery Street, Suite 610, San Francisco, CA 94111. On the said date below, I served a copy of the attached: REPLY MEMORANDUM OF DEFENDANT YARNG ALTAWAL FOR A COMPLETE, OR IN THE ALTERNATIVE PARTIAL, JUDGMENT NOTWITHSTANDING THE VERDICT XXX by placing a true copy of the document (s) listed above for collection and mailing following the firm's ordinary business practice in a sealed envelope with postage prepaid for deposit in the United States mail at San Francisco, California, pursuant to CCP §§1013a(3), addressed as set forth below. Karen Uchiyama Law Offices of Karen Uchiyama 1441 Baker Street San Francisco, CA 94115 XXX by facsimile transmission at or about 3:10 PM, on March 6, 2014. This document was transmitted by using a facsimile machine that complies with California Code of Civil Procedure section 1013 (a), facsimile number (415) 376-5897. The transmission was reported as complete and without error. A copy of the transmissort, properly issued by the transmitting machine, is attached. The names and facsimile numbers of the person(s) served are as set forth below. Karen Uchiyama Law Offices of Karen Y. Uchiyama 1441 Baker Street San Francisco, CA 94115 Facsmile: (415) 563-9304 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 the said date below, at San Francisco, California. Date: March 6, 2014 Ch. Diana Luong \ PROOF OF SERVICE