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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-CVEX PARTE MOTION FOR STAY OF EXECUTION; DECLARATION IN SUPPORT THEREOF; POINTS AND AUTHORITIES; ORDER DEPT: JUDGE: DATE: ______________________________ ______________________________ ______________________________

TO THE PLAINTIFFS AND THEIR ATTORNEY OF RECORD: Defendant, James Alan Bush, respectfully applies for an order of this court, directed to Plaintiffs, to the Sheriffs Ofce of Santa Clara County, and to any other person acting on behalf of, or in concert with tbe plaintiffs, staying execution of the judgment entered on April 4th, 2011, on the grounds that (1) the judgment may be set aside in accordance with the Motion for Reconsideration of Motion to Quash and with the Motion for a New Trial (or to Vacate the Judgment), which were led prior to this application and are now pending before this court; (2) extreme hardship, in that the defendant would suffer if the judgment were to be executed at this time; and, (3) the notice EX PARTE MOTION PAGE 1 OF 7

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that a writ of execution was issued was not received until April 8th, 2013. This application is based on all pleadings, records, and papers on le in this action; the attached supporting memorandum and declaration; and, on the motions led concurrently with this application and attached hereto. DECLARATION IN SUPPORT OF MOTION I, James Alan Bush, declare: 1. I am the defendant in the above-referenced matter, and this declaration is in support of my/our application for a stay of execution of the judgment entered on April 4th, 2013, in the matter here. 2. At the time of the ling of this action, I had lived at the subject premises for only two months. My present source of income is county assistance, which totals $147 in cash and $200 in food stamps per month. Until the time of my eviction, my rent was paid by family members. 3. Although the basis for the eviction was not related to unpaid rent, there are two factors which limit my ability to relocate within the time allotted: a. Subsequent to the eviction, my family has not yet provided any funds for a new apartment and a security deposit, which is due, in part, to the premature ling of the complaint, which is explained more fully in the attached motion. b. I have not had an opportunity to secure alternative housing as of this date. I do not have friends or relatives in the area with whom I can stay while I continue my search for alternate housing (my family lives in Indiana). 4. The writ of execution was purportedly posted by the sheriff on or about April 5th, 2013; however, a guest staying at my apartment removed the writ before I arrived home from my front door, and placed it in a location where I did not see it until April 8th, 2013. Since I have not found other housing as yet and do not have friends or relatives with whom I can reside, I will EX PARTE MOTION PAGE 2 OF 7

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have no place to go if I am evicted on April 11th, 2013. I must have time to relocate and make arrangements to move my personal property. 5. In order to avoid irreparable harm to me and to allow additional time to relocate, I request that the judgment entered in this case on April 4th, 2013, be stayed until the pending motions can be heard. 6. Because I do not have the resources to nd immediate temporary housing, it would work a severe hardship to be evicted because as I am required by law and as a condition of my probation to maintain a residence address, and failing to meet this requirement will result in my incarceration, and, likely, the total loss of all of my personal property. For these reasons, I submit that in order to avoid extreme hardship; this Court should grant a stay of execution until May 1st, 2013, or on any other date the court deems proper. 8. I tried, but was unable to work out an agreement with the plaintiff/ plaintiffs attorney. I notied the plaintiff/plaintiffs attorney of this Ex Parte Motion for Stay of Execution by telephone on April 8th, 2013, at 8:30 a.m., and advised of my intent to request a hearing. 9. The plaintiff/plaintiffs attorneys ofce responded by saying: The judges dont like you; the town doesnt like you. They want you on the streets. You wont get anything out of this. Otherwise, he did not indicate any opposition to this motion. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: April 8th, 2013 Respectfully submitted,

James Alan Bush Defendant in pro per EX PARTE MOTION PAGE 3 OF 7

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MEMORANDUM OF POINTS AND AUTHORITIES 1. The court may stay the execution of a judgment or order. Code of Civil Procedure Section 918 (a). 2. In situations where justice requires a stay of execution, the Court may do without the consent of the adverse party for a period of up to 40 days. Code of Civil Procedure Section 918 (b). This 40-day gure is derived from the provision that the court may stay execution for a period which extends for 10 days beyond the last date on which a notice of appeal could be led. Code of Civil Procedure Section 918 (b). The last date on which a notice of appeal can be led is 30 days after the notice of entry of judgment is mailed by the clerk or opposite party, or 90 days after the entry of judgment, whichever earlier. California Rules of Court, Rule 122 (a). Therefore the judge can stay the execution of an unlawful detainer judgment for 40 days after the notice of entry of judgment served. 3. In Industrial Indemnity Co. v. Levine (1975) Cal. App. 3d 698, 700, 122 Cal Rptr. 712, the Court remarked, The stay of execution granted under Code of Civil Procedure Section 681 (a) (now code of Civil (Procedure Section 918 (a) ), is used to allow the judgment debtor time to gather his resources so that the judgment may be satised without unnecessary hardship. 4. If there is a pending hearing on a posttrial motion, the court has the inherent power to stay execution of judgment pending determination of posttrial motions. CCP 918, 1176. Section 918(b) provides that, if the judgment is one that would be stayed on appeal only by the giving of an undertaking, then the length of the stay is limited; it must not extend beyond the date that is 10 days after the last date on which a notice of appeal could be led. Because no undertaking is required in an appeal from an unlawful detainer action, it would appear that the limitations on the length of the stay under 918(b) do not apply to unlawful detainer actions. EX PARTE MOTION PAGE 4 OF 7

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For purposes of the stay under 918, it is irrelevant whether an appeal will, in fact, be brought. CCP 918(c). In Medford v. Superior Court (1983) 140 CA3d 236-240, 189 CR 227, the court stated in dicta that the possibility of loss of back rent or accrued damages is not a consequence of granting such relief to the tenant. The landlord gains sufcient protection from the deposit of the contract rent as it becomes due. 5. The trial court has discretionary authority under CCP 918(a) to stay execution of any judgment or order [see Colby v. Colby (1954) 127 CA2d 602, 274 P2d 417; Buffandeau v. Edmondson (1861) 17 C 436]. Although CCP 918 does not expressly so provide, the usual grounds for a request by a tenant for a stay under this statute are the following: Hardship or other good cause; To allow time to give notice and be heard on the tenants application for relief from forfeiture and restoration of the tenancy, under CCP 1179; and, To allow a full hearing before execution of judgment on posttrial procedures such as noticed motions for a new trial, for judgment notwithstanding the verdict, and to vacate the judgment. Dated: April 8th, 2013

Respectfully submitted,

James Alan Bush Defendant in pro per // // // EX PARTE MOTION PAGE 5 OF 7

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PROOF OF PERSONAL SERVICE I declare that I am a citizen of the United States of America and a resident of Santa Clara County, California. I am over the age of eighteen years and not a party to the within entitled action. My residence address is: 1211 EAST SANTA CLARA AVENUE #4 SAN JOSE, CALIFORNIA 95116 I personally served the within: EX PARTE MOTION OF STAY OF EXECUTION; DECLARATION IN SUPPORT THEREOF; and, MEMORANDUM OF POINTS AND AUTHORITIES on the parties in said action, by personally delivering to and leaving with the following persons in the County of Santa Clara County, State of California, on April 8th, 2013, a true copy thereof to Todd Rothbard, Attorney. I declare under penalty of perjury that the foregoing is true and correct. Executed on April 8th, 2013, at San Jose, California.

Long Thang Cao Declarant

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EX PARTE MOTION Good cause appearing:

ORDER

IT IS ORDERED the Ex Parte Motion for Stay of Execution is hereby GRANTED / DENIED. There shall be no further action taken by plaintiff or by anyone acting for or with plaintiff, including the Ofce of the Sheriff for the County of Santa Clara, to enforce or execute the judgment herein entered against the defendant in the above-entitled action until May 1st, 2013. Dated: April 9th, 2013

Judge of the Superior Court // // // // // // // // // // // // // // // // PAGE 7 OF 7