Demurrer To Complaint Ud

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Your name / Attorneys name Address Phone Number

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In Pro Per

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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IN AND FOR THE COUNTY OF LOS ANGELES

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A.W.R.E. INC.,

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Case No.:

Plaintiff,

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vs.

NOTICE AND DEMURRER TO COMPLAINT, MEMORANDUM OF POINTS AND AUTHORITIES

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Defendants.

Reserved: Date: Time: Dept.

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NOTICE IS HEREBY GIVEN that on _________ __, 2009, at __:___ a.m. / p.m.

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in Department ____ of the Superior Court of California, County of Los Angeles located

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at: ______________, __________, California _______, Defendants ______________

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will demurrer to Plaintiff’s Complaint for Unlawful Detainer pursuant to

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1 of 9 _____________________________________________________________________________ NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER, MEMORANDUM OF POINTS AND AUTHORITIES

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Code of Civil Procedure sections 430.10 (b)(e) and (f) on the following grounds: The

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first cause of action for Unlawful Detainer fails under the following sections: (b) The

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person who filed the pleading does not have the legal capacity to sue. (e) The pleading

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does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and unintelligible. Additionally, Plaintiff did not attach a copy of the alleged Trustee’s Deed After Sale in order to lay a foundation for ownership of the property, which this Defendant denies. This Demurrer is based upon this Notice, the attached Memorandum of Points and Authorities, all other pleadings, papers, and records on file herein, and upon such

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further oral and documentary evidence as may be presented at the time of the hearing of the demurrer.

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Dated: ____________ ___, 2009

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Your Name

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Defendants In Pro Per

_____________

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2 of 9 _____________________________________________________________________________ NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER, MEMORANDUM OF POINTS AND AUTHORITIES

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Plaintiff’s Claim for Relief “UNLAWFUL DETAINER” The Claim for Relief for Unlawful Detainer, fails to state facts sufficient to

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constitute a cause of action, in addition the pleading is, "uncertain" “ambiguous” and “unintelligible”. C.C.P. § 430.10 (b) (e) and (f): According to the caption, plaintiff is acting as OWNER for parties unknown; 1.

It is unknown from the complaint why A.W.R.E. INC. would have the necessary

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standing to prosecute an action doing business under a fictitious business name

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(the name “AWRE” and “A.W.R.E.”), are unregistered DBA's ;

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2.

The requisite documents in order to establish a foundation for the ownership of

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the subject property were not attached by plaintiff; and Defendant can not determine whether AWRE, INC. is a proper party; The hearing on the demurrer will be based on Code of Civil Procedure §§430.10; and Business and Professional Code 17918. The accompanying Demurrer and notice; the following memorandum of points and authorities in support of the Demurrer; all of

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the pleadings, records, Judicial notices and files in this action; any matters which may

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be or are judicially noticed; such supplemental memoranda of points and authorities and

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documents as may be subsequently filed herein or lodged herein; and such oral and

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documentary evidence as may be presented at the hearing. Wherefore, Defendants again demurrer to the complaint pursuant to California Code of Civil Procedure section 430.10(b)(e) and (f). Business and Professional Code 17918 Dated: ____________ ___, 2009 __________________

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Your Name Defendants In Pro Per 3 of 9 _____________________________________________________________________________ NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER, MEMORANDUM OF POINTS AND AUTHORITIES

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4 of 9 _____________________________________________________________________________ NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER, MEMORANDUM OF POINTS AND AUTHORITIES

MEMORANDUM OF POINTS AND AUTHORITIES

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I.

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In this matter, it is impossible to determine who the proper plaintiff should be, and

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INTRODUCTION

whether the stated plaintiff has standing, and if the plaintiff is acting for the “benefit” of some unknown, unnamed third party, why this action is pending in the first instance. Defendants Robert Tapia, Karina Tapia contend that the Plaintiff or his assignee lack the capacity to sue for failure to comply with Fictitious Business Name Laws. II. IT APPEARS FOR THE PLEADING THAT THE WRONG PARTY FILED THE ACTION.

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The caption states that the Plaintiff is: “AWRE, Inc.” and Paragraph 1 of the

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Complaint states: AWRE, Inc. “is and at all times herein mentioned was, an individual

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AWRE, Inc. is the name under which Plaintiff has engaged in business.” The stated

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purpose of the action does not afford AWRE, Inc. as Owner standing to prosecute the

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instant action for the benefit of some third party. More particularly, a party that is not

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authorized to conduct business in the State of California under a fictitious business

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name until a fictitious business name statement (FBN) is filed with the Los Angeles

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Registrar-Recorder/County Clerk and submitted for publication in a local newspaper.

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From the facts set forth in the complaint, it is impossible to determine the legal relationship which exists between the owner who is unnamed and AWRE, Inc. who is unlicensed. Defendant cannot determine from the fact alleged whether AWRE, Inc.

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entered into an assignment to allow AWRE, Inc. to standing in its place, whether there

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is a fully executed sale agreement. The facts alleged in the complaint are vague,

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5 of 9 _____________________________________________________________________________ NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER, MEMORANDUM OF POINTS AND AUTHORITIES

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ambiguous and unintelligible and as such is subject to demurrer. To be certain, AWRE,

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Inc. does allege that it is the owner and Manager of the property. Defendants are left to

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wonder, who might be the actual owner of the property.

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III.

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THE COURT IS EMPOWERED TO SUSTAIN A DEMURRER, WITHOUT LEAVE TO AMEND, WHERE AS HERE, THE PLAINTIFF

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LACKS STANDING AND JURISDICTION.

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California Code of Civil Procedure § 430.10 states in relevant part a “party” against who

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a complaint or cross-complaint has been filed may object, by demurrer to the pleading

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on any one or more of the following grounds: (a) the court lacks jurisdiction of the

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subject cause of action alleged in the pleading; and (b) the person who filed the

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pleading does not have the legal capacity to sue. In the Complaint, all of the

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aforementioned sections are applicable in part or in whole, necessitating that the

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demurrer be sustained without leave to amend. California courts rule that demurrer is

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proper where a complaint fails to state a cause of actions or where as here it discloses

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a defense that would bar recovery. Johnson v. Superior Court, (1994) 25 Cal. App.4th

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1564, 1567 as modified, rehearing denied. In addition, while it is true that a demurrer

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admits all material facts that are poorly plead, California courts have consistently held

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that “conclusions of law or fact alleged are not considered in judging its sufficiency.” C & H Food Co. v. Hartford Ins. Co., (1984) 163 Cal. App.3d 1055, 1062; see also Meggeff v. Donald, (1981) 123 Cal. App.3d 251, 258.

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IV.

ESSENTIAL FACTS HAVE NOT BEEN ALLEGED.

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A. The Complaint "provides no factual basis to support its “conclusions of facts”

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6 of 9 _____________________________________________________________________________ NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER, MEMORANDUM OF POINTS AND AUTHORITIES

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In ruling on a Demurrer: The Court does not, assume the truth of contentions,

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deductions, or conclusions of fact or law. Set out in any complaint (Daar v. Yellow Cab

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Co., (1967) 67 Cal.2d 695, 713, 63 Cal. Rptr. 724, 433 P.2d 732.) (Emphasis added.)

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The purpose of a demurrer is to test the legal sufficiency of the complaint, … Therefore, an appellate court employs two separate standards of review on appeal. [Citations.] First, the complaint is reviewed de novo to determine whether it contains

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sufficient facts to state a cause of action. [Citation.] In doing so, the court will accept as

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true the properly pleaded material factual allegations of the complaint,… (Hernandez v.

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City of Pomona (1996) 49 Cal. App.4th 1492, 1497.) (Emphasis added.)

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In Ankeny v. Lockheed Missiles & Space Co., (1979) 88 Cal. App.3d 531,

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Division

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The First District Court of Appeal stated:

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"Plaintiff's complaint is also uncertain. In the civil complaint, he alleges conclusions of Landlord Responsibility such as “performed all conditions of the rental

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agreement” It is settled law that a pleading must allege facts and not conclusions, and

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that material facts must be alleged directly and not by way of recital. [Citation.] Also, in

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pleading, the essential facts upon which a determination of the controversy depends

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should be stated with clearness and precision so that nothing is left to surmise. [Citation.] Those recitals, references to, or allegations of material facts which are left to surmise are subject to special demurrer for uncertainty. [Citation.] Such conclusory

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allegations as are noted above, without facts to support them, are ambiguous." (Id. at p.

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537.) (Emphasis added.)

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7 of 9 _____________________________________________________________________________ NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER, MEMORANDUM OF POINTS AND AUTHORITIES

B. Plaintiffs Claim for relief For Unlawful Detainer fails to State a Cause of Action.

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Plaintiff’s Claim for Relief is merely a conclusion of alleged facts not stated in their

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complaint, or established by the appropriate exhibits, for example the complaint alleges

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that they have ownership to the property but fail to explain by facts how they obtained the property, what proof they had or have and that a copy thereof is attached and the originals of these documents are in their possession and will be introduced into

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evidence at the trial. The proof necessary to support a valid claim under CCP 1161a is

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the original Note, (not a Copy) the original of the chain of endorsements, from the back

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side of the Note (not a copy) and proof that they paid a valid consideration for the Note

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and deed of trust and held this note at the time of the foreclosure all of which are a

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required prerequisite to any UD based on CCP 1161a, as 1161a is based on Plaintiff

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having good and clear title duly perfected in accordance with California law. Since

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Plaintiff has not made the appropriate allegations to support its entitlement to

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possession based on a valid and duly perfected sale, it has failed to set forth a claim for

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relief. In addition Plaintiff is informed and does business as AWRE, Inc. a fictitious business name unregistered with the Los Angeles Registrar-Recorder/County Clerk. Furthermore, Barred by Business and Professional Code 17918 which specifies "No person transacting business under a fictitious business name contrary to the provisions of this chapter, or his assignee, may maintain any action upon or on account of any contract made, or transaction had, in the fictitious business name in any court of this

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8 of 9 _____________________________________________________________________________ NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER, MEMORANDUM OF POINTS AND AUTHORITIES

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state until the fictitious business name statement has been executed, filed, and published as required by this chapter.

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CONCLUSION Defendants ___________________ respectfully request that the court sustain the demurrer without leave to amend due to lack of subject matter jurisdiction over the property, the lack of standing of the Plaintiff to bring the instant action, and for the failure

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to allege facts sufficient to state the causes of action alleged.

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Respectfully submitted,

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Dated: ____________ ___, 2009

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Your Name

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Defendants In Pro Per

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(not included)

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If this demurrer is denied we will file a writ of mandamus.

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9 of 9 _____________________________________________________________________________ NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER, MEMORANDUM OF POINTS AND AUTHORITIES