Lack of cites regarding Cal CCP section 1166

[Learnin]

In the scenario of a homeowner being foreclosed on/evicted:

 

Plaintiff's sue in Unlawful Detainer court under Cal CCP section 1161a  (under the theory of 1161a(b )(3).

 

No rental or lease agreement is attached to the Complaint as required by Cal CCP 1166.

 

 

I can't be the only pro per defendant arguing that Cal CCP 1166 requires a rental/lease agreement to be attached to the Complaint.

 

But I can't find any case cites or references to 1166 in higher court opinions on scholar.google dot com. 

 

Which seems weird.  I guess I could be a really bad googler.....

 

 

Can someone please confirm or deny that they can find court cases/decisions/opinions on the topic?

[Seadragon]

In the scenario of a homeowner being foreclosed on/evicted:

 

Plaintiff's sue in Unlawful Detainer court under Cal CCP section 1161a  (under the theory of 1161a(b )(3).

 

No rental or lease agreement is attached to the Complaint as required by Cal CCP 1166.

 

 

I can't be the only pro per defendant arguing that Cal CCP 1166 requires a rental/lease agreement to be attached to the Complaint.

 

But I can't find any case cites or references to 1166 in higher court opinions on scholar.google dot com. 

 

Which seems weird.  I guess I could be a really bad googler.....

 

 

Can someone please confirm or deny that they can find court cases/decisions/opinions on the topic?

Look at this link:

http://lexisnexis.com/clients/CAcourts/

 

Then look under the 1166 in the terms search. look under terms unlawful detainer and focus term renter

It is appellants' further contention that under the facts presented the plaintiffs are estopped to claim that the note and mortgage are for less than the full amount. It is settled law in this state that "one about to take an assignment of a mortgage is bound in his own interest to inquire of the mortgagor as to the validity of the instrument and of the transaction on which it was founded and as to the amount due, and whether the mortgagor has any defenses or set-offs to interpose against it; if he neglects to do this he takes the mortgage subject to all infirmities or objections which could have been set up against it in the hands of the original mortgagee, being charged with knowledge of all facts which such an inquiry would have disclosed." ( Briggs v. Crawford, 162 Cal. 124, [121 Pac. 381].) This rule insures to the plaintiffs in this case the right, notwithstanding the assignment of the note and mortgage, to every defense which they might have made had Jones retained the mortgage. It goes without saying that if Jones had sought to foreclose the mortgage they could have defended against it to the extent of his default in the advancements, and that the only lien which he could have had under a decree of foreclosure would have been as to the actual amount of money advanced by him, which was the sum the court in this case decreed to be a lien in favor of Mrs. Fiske, the purchaser. Mrs. Fiske had knowledge and notice long before this suit was instituted of the actual condition of affairs. She knew that Jones had not advanced the amount of money requisite and that plaintiffs would claim a defense thereto because of such failure. Having such knowledge, she did not plead in her answer, nor did the bank, any facts by way of an estoppel. "That a party who has an opportunity to plead an estoppel, upon which his cause of action or defense depends, must do so, is the recognized rule in this state." ( Fritz v. Mills et al., 12 Cal. App. 113, [106 Pac. 725], and authorities there cited.) This rule suffers an exception only in instances where under our system of pleading no opportunity is afforded for a pleading wherein an estoppel may properly be pleaded. ( Ahlers v. Smiley, 11 Cal. App. 343, [104 Pac. 997].) The defendants having cognizance, then, of the character of the defense which plaintiffs claimed to the mortgage, it was their duty, had they desired to avail themselves of any facts constituting an estoppel, to have pleaded the same. The opportunity so to do was afforded and their neglect precludes them from the introduction of evidence tending to establish an estoppel, or from the court's consideration of evidence in that direction. This we say is the rule were it even assumed that the facts of the case are such as would have estopped the plaintiffs from asserting their claim of a failure of consideration in part. It will be observed that Mrs. Fiske did no act or thing based upon any promise made by Mentry to her agent. That such a promise should operate as an estoppel, it must be made to appear not only that she changed her position, but that relying upon such promise an injury resulted by reason thereof. There is no averment in the answer nor in fact is there any evidence in the record tending to show a reliance upon Mentry's promise, or that by reason of such reliance she was prevented from taking any steps necessary for her indemnification, or that any steps which she might have taken could have so resulted. There can be no inference from the facts that the appellants changed their position by reason of the neglect of Mentry to give the notice, or of any delay in instituting the action, unless it be assumed that such notice if given would have afforded them an opportunity to have recouped by an action against Jones, or the bank as a guarantor, the amount of the loss suffered. But, as we have said before, there was no plea of any estoppel, or of any facts supporting the same, and hence it was not proper for the court to consider them.

Mentry v. Broadway Bank & Trust Co., 20 Cal. App. 388 (Cal. App. 1912)

[Learnin]

Thanks Seadragon.

 

 

Out of 100 hits for '1166', only one was for Cal ccp 1166 (rest were penal code) and non-related.  No results for 'code of civil procedure 1166' or 'ccp 1166'.

 

There's lots of results for 'renter' and 'tenant' but no results for 'not a tenant', 'holding over', 'person who holds over' (which cal ccp 1161 and 1161a require) or 'not a person who holds over'.

 

 

Is there a way I can further search for/focus on 'cal ccp 1166' there in nexus?  Doesn't look like it (short of adding it in the search box, which brought back no results).

 

 

 

 

Also, I don't see that the case cite you added is relevant to the original ccp 1166 topic.  If you think it is, I'd love to hear how/why.