DEFENDANTS NOTICE OF DEMURRER

COUNTY OF XXX- SOUTH CENTRAL DISTRICT

TO THE COURT, PLAINTIFF, AND PLAINTIFF’S ATTORNEY[S] OF RECORD:

            PLEASE TAKE NOTICE that on XXX at XXX or as soon thereafter as the matter may be heard in Department B of the above-entitled court, located at XXX Defendant will demur to Plaintiff’s First Amended Complaint, filed on or about XXXX, on the grounds stated in the accompanying Demurrer to Complaint.

This Demurrer is based on this Notice, the accompanying Demurrer, the Memorandum of Points and Authorities, the Declaration of Defendant, and any other supporting documents attached hereto and/or filed concurrently herewith, as well as on all the papers, pleadings, and records on file in this action.

Respectfully submitted,

DEMURRER

Defendant hereby demurs to Plaintiff’s First Amended Complaint on the following grounds:

DEMURRER TO THE FIRST CAUSE OF ACTION

(Quiet Title)

1. The First Cause of Action for Quiet Title does not state facts sufficient to constitute a cause of action against this answering defendant. (Code Civ. Proc., § 430.10(e).)

DEMURRER TO THE SECOND CAUSE OF ACTION

(Constructive Trust)

2. The Second Cause of Action for Constructive Trust does not state facts sufficient to constitute a cause of action against this answering defendant. (Code Civ. Proc., § 430.10(e).)

DEMURRER TO THE THIRD CAUSE OF ACTION

(Resulting Trust)

3. The Third Cause of Action for Resulting Trust does not state facts sufficient to constitute a cause of action against this answering defendant. (Code Civ. Proc., § 430.10(e).)

DEMURRER TO THE FOURTH CAUSE OF ACTION

(Declaratory Relief)

4. The Fourth Cause of Action for Declaratory Relief does not state facts sufficient to constitute a cause of action against this answering defendant. (Code Civ. Proc., § 430.10(e).)

DEMURRER TO THE FIFTH CAUSE OF ACTION

(Declaratory Relief)

5. The Fifth Cause of Action for Declaratory Relief does not state facts sufficient to constitute a cause of action against this answering defendant. (Code Civ. Proc., § 430.10(e).)

DEMURRER TO THE SIXTH CAUSE OF ACTION

(Fraudulent Concealment)

6. The Sixth Cause of Action for Fraudulent Concealment does not state facts sufficient to constitute a cause of action against this answering defendant. (Code Civ. Proc., § 430.10(e).)

MEMORANDUM OF POINTS AND AUTHORITIES

I

INTRODUCTION

1. Defendant is the co-owner and former resident of XXX N Parmelee Avenue, Compton, CA 90222. Since the property was purchased, it was a mutual agreement that Defendant would inherit said property as the sole child of the Plaintiff that was confirmed via a written contract under the most recent refinance. Additionally, throughout the time in question, Defendant paid $800 month in rent toward the mortgage, the water bill in full balance owed, the electricity bill in full balance owed, all groceries, and prepared daily meals for the plaintiff.
2. Plaintiff has a history of financial and emotional abuse against Defendant. In the past, she has used Defendant’s name to register utilities and obtain credit. Unbeknownst to Defendant, Plaintiff received and redeemed a check of approximately $20,000 that was named to both Defendant and her as recipients (Exhibit-E). She has used the proceeds to purchase a new vehicle and renovate the property in question. It is Defendant’s belief that she and other relatives co-conspired to take such actions.
3. While recovering from a medical ailment, Plaintiff said that she wished to retire. Having recently broken up with her then estranged boyfriend and reaching old age, Plaintiff and Defendant agreed that Defendant would continue to assist with the mortgage, all utilities, and meal preparation until the parties decide if Plaintiff would use proceeds from the sale to build up family property in Mississippi. Plaintiff independently interviewed several banking institutions and independently selected Ladera Lending, of which Defendant was never an employee or contractor (Exhibit- B).
4. It was only after the loan was finalized when Defendant began to question Plaintiff’s spending habits and her complaints of debt, despite the refinance having cleared those obligation and despite Defendant’s financial contributions to the household to assist in alleviating Plaintiff of such responsibilities, she began defaming Defendant’s character and creating false accusations of abuse when it was, in fact, Plaintiff inflicting verbal and financial abuse on Defendant and Defendant’s minor son. Plaintiff worked in tandem with Defendant’s estranged ex-husband to call authorities while Defendant was seeking to change custody outside in efforts to subvert Defendant’s parental rights; worked with estranged relatives to pull titles and/or other mortgage related inquiries in effort to apply for an equity loan. These adverse actions created unlivable and inhabitable conditions in the home–engaging in verbal assaults that lead to my family’s homelessness.
5. It is Defendant’s contention that the initial complaint and all subsequent amended complaints are in retaliation for disassociating with her and are in effort to manipulate and control Defendant in her professional career while defaming her character and integrity based on tort theories.

II

LEGAL STANDARDS APPLICABLE TO DEMURRER

6. A complaint must contain a statement of the facts constituting the cause of action, in ordinary and concise language. See Code Civ. Proc., §425.10(a). A demurrer will lie where a complaint “does not state facts sufficient to constitute a cause of action.” See Code Civ. Proc., § 430.10(e). A general demurrer “searches the complaint” for a failure to state a cause of action as a matter of law. Stanton Road Assoc. v. Pacific Employees Ins. Co. (1995) 36 Cal.App.4th 333, 340. On demurrer, courts do “not assume the truth of contentions, deductions, or conclusions of fact or law.” Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125; see also Moore v. Conliffe (1994) 7 Cal.4th 634, 638; Adelman v. Associated International Ins. Co. (2001) 90 Cal.App.4th 352, 359. When a court reviews the sufficiency of a complaint against a general demurrer, the court will “‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’” Kurtz, Richards, Wilson & Co., Inc. v. Insurance Communicators Marketing Corp. (1993) 12 Cal.App.4th 1249, 1256 (quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [citations omitted]). The Court must determine “whether there is a reasonable possibility that the defect [in the pleading] can be cured by amendment. … The burden of proving such reasonable possibility is squarely on the plaintiff.” Blank, supra, 39 Cal.3d at p. 318 (citations omitted).

III

THE AMENDED COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR QUIET TITLE

7. Plaintiff has failed to state factors that are sufficient to constitute a cause of action. Where the complaint seeks to enforce an agreement required to be in writing under the statute of frauds, but nonetheless alleges the agreement was oral, or does not state how the agreement was derived, a general demurrer lies. See Parker v. Solomon, 171 Cal.App.2d 125, 340 P.2d 353 (Cal. Ct. App. 1959).
8. Furthermore, Rossberg v. Bank of America, N.A., 219 Cal.App.4th 1481, 162 Cal. Rptr. 3d 525 (Cal. Ct. App. 2013) asserts that failure to allege written contract signed is legally issued and properly decided is grounds for demurrer. Plaintiff omitted that she legally signed and mutually agreed for the refinance that gifts Defendant the property.
9. Plaintiff claims that she is the true owner of the property. She states that she was first aware that Defendant co-owns the property when she saw records on title after refinancing. She also claims that Defendant has never paid any utilities or mortgage, and that she has asked that Defendant comes off title prior to file the suit.
10. It is notable that during Defendant’s time at the residence, Plaintiff was in her full mental and physical capacity and worked full-time as an Eligibility Worker for the Los Angeles County Department of Social Services until she was forcibly removed from said position through retirement due to her interference with my then open cases as well as the case of Defendant’s estranged ex-husband. During Defendant’s time as a tenant, she worked intermittently as a Medicare Specialist and tutor, of which Plaintiff was aware of, which debunks Plaintiff’s narrative of Defendant being her Loan Officer.
11. Defendant made contributions to the upkeep and maintenance of the home. Prior to accepting the terms of the loan, Plaintiff sought the advice of other relatives and signed the loan with a notary public, of which Defendant had no prior affiliation or association (Exhibit- C). At the time of signing and afterward, she was of her own recognizance and within her full mental capacity to conduct such a transaction.
12. Defendant asserts that Plaintiff admittedly cashed a check that bore two names but collected all proceeds from that check. The title in question was notarized with her signature and filed. Also, Plaintiff provides no specific date or times within which her findings came to be. The claims are ambiguous and inconsistent which begs a question of status. See Esparza v. Kaweah Delta Dist. Hosp., 3 Cal.App.5th 547, 207 Cal. Rptr. 3d 651 (Cal. Ct. App. 2016).
13. Based on these purported deficiencies of dates in relationship to refinanced loan and the course of actions taken, Defendant contends that Plaintiff failed to allege facts showing a disposition of her claim that would authorize her to file a complaint.
14. Further, Plaintiff’s Amended Complaint is also deficient since it does not meet the standard set forth in Code of Civil Procedure 761.020. According to said law, a complaint for quiet title must state: a description of the property that is the subject of the action, the title of the plaintiff as to which a determination under this chapter is sought and the basis of the title, the adverse claims to the title of the plaintiff against which a determination is sought, and the date as of which the determination is sought. Defendant asserts that the Plaintiff still fails to allege sufficient facts to establish the basis for her title. Plaintiff has also not filed a notice of pendency as required under Code of Civil Procedure 761.010(b).

IV

THE AMENDED COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR CONSTRUCTIVE TRUST

15. The principal circumstances where constructive trusts are imposed are set forth in Civil Code sections 2223 and 2224. Section 2223 provides that “[o]ne who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner.” Section 2224 states that “[o]ne who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.” Under these statutes and the case law applying them, a constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it.” See Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.
16. Defendant asserts that Plaintiff and her have equal interest in the property. The property was gifted as a form of inheritance and right. Defendant has no cause to willfully give it up, especially given that Plaintiff has abused her rights as a co-owner by willfully admitting to misusing funds that Defendant provided to her for the home.
17. Defendant further states that it was not apparent that the refinance was an issue during and after refinance or while in possession of property. Accordingly, Defendant is under no obligation to grant back property that she is entitled to without recourse.

V

THE AMENDED COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR RESULTING TRUST

18. “A resulting trust arises when the legal estate is transferred under such circumstances that the intent appears, or is inferred, that the beneficial interest should not be enjoyed with the legal title.” See 49 Cal.Jur.2d, Trusts, § 347, p. 186; see also Fulton v. Jansen, 99 Cal. 587 [34 P. 331].
19. “A resulting trust arises whenever a purchase of real property is made with the money of the beneficiary and the deed to the property is not taken in his name.” See 23 Cal.Jur.2d, Frauds, Statute of, § 57, p. 292; see also Sandfoss v. Jones, 35 Cal. 481; Civ. Code, § 853. Civil Code section 853 provides: “When a transfer of real property is made to one person, and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made.”
20. The plaintiff is claiming that a breach of trust has occurred yet omits the existence of a contract. Furthermore, the plaintiff has breached the contract and has raised false claims of fraud, defamation, committing perjury on a verifiable document, and committing financial abuses that compromise the property, such as renovation the property without consulting the co-own and recover profit from proceeds meant for both owners.
21. Defendant asserts that Plaintiff had a medical condition. At which time, Defendant sold her then property and used the proceeds to maintain the home and assist the Plaintiff in restoring her health.
22. Further, Plaintiff has made inconsistent and contradictory allegations in previous pleadings with the court. According to Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674 (6th Cir. 1988), the courts stated that a case should not move forward without a clear and concise claim. The plaintiff has had sufficient time to conduct due diligence and allege the appropriate name, bank lender, and parties in which to seek relief yet she did not. Besides, the plaintiff has a history of financial and emotional abuse against Defendant. The plaintiff clearly has the resources to file suit against a bank for which she claims she was defrauded yet chooses to file suit against a relative and co-owner of the property. It is apparent that the suit is a family squabble under the guise of a complaint.

VI

THE AMENDED COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR DECLARATORY RELIEF

23. “The fundamental basis for declaratory relief is the existence of an actual, present controversy over a proper subject.” City of Cotati v. Cashman, 2 Cal. 4^th 69, 7 (2002). The object “is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.” See Cal. Ins. Guar. Ass’n v. Superior Court, 231 Cal. App. 3d 1617, 162 (1991).
24. Declaratory relief has two elements a part must satisfy: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party’s] rights or obligations.” See Jolley v. Chase Home Finance, LLC, 213 Cal. App. 4^th 872, 909 (2013). “One test of the right to institute proceedings for declaratory judgment is the necessity to present adjudication as a guide for plaintiff’s future conduct in order to preserve his legal rights.” Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC, 191 Cal. App. 4^th 357, 364-365.
25. Defendant asserts that there is no actual controversy as alleged in Plaintiff’s Amended Complaint. Further, by this claim, Plaintiff uses this cause of action to seek a determination of identical issues already raised in Plaintiff’s other causes of action. As Lingsch v. Savage, 213 Cal.App.2d 729, 29 Cal. Rptr. 201 (Cal. Ct. App. 1963) asserts, “An examination of the pleading under attack persuades us that the only kind of fraud or deceit which it purports to assert is one based on concealment or nondisclosure. We find no allegations which can reasonably be construed as asserting fraud predicated upon intentional and affirmative misrepresentations, negligent misrepresentations or false promises. See Civil Code, 1572, subds. 1, 2 and 4; 1710, subds. 1, 2 and 4.) The Court further stated

“[w]e should further point out that the concealment which is here the essence of the alleged deceit does not involve, in the light of the allegations before us, any affirmative acts on the part of the defendants in hiding, concealing, or covering up the matters complained of. Nor do any allegations purport to set forth a confidential relationship subsisting between the plaintiffs on the one hand and all or any of the defendants on the other. We are therefore presented with an instance of mere nondisclosure, rather than active concealment, occurring between parties not in a confidential relationship.”

26. Accordingly, Defendant asserts that ambiguous and unintelligible claims that lack legal sufficiency of facts should be dismissed without grounds for amendment. Notably, Plaintiff has a history of financial and emotional abuse against Defendant. Plaintiff clearly has the resources to file suit against a bank for which she claims she was defrauded and state that she is not able to renovate her home while doing just that yet chooses to file suit against a relative and not show what she has done with the proceeds of the funds that both Plaintiff and Defendant were to receive. It is apparent that these claims are contradictory, unfounded and inconsistent.
27. Defendant further asserts that Plaintiff has not provided any documentation to support her claim for declaratory relief and to establish her 100% ownership rights.

VII

THE AMENDED COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR DECLARATORY RELIEF

28. The object of a declaratory relief is “not to furnish a litigant with a second cause of action for the determination of identical issues.” See Cal. Ins. Guar. Ass’n v. Superior Court, 231 Cal. App. 3d 1617, 162 (1991).
29. In Link v. Wabash R. Co., 370 U.S. 626 (1962), the Supreme Court stated that Courts may exercise their inherent powers and invoke dismissal as a sanction in situations involving disregard by parties of orders, rules or settings.
30. Here, Plaintiff has failed to follow procedure set forth by the Judge. Notably, Plaintiff:

• Did not meet and confer on 10/13/2022 as stipulated by Judge Bird;
• Did not meet and confer before 1/10/23 as stipulated by Judge Bird;
• Did not file stipulation for nor demand for Arbitration w/ Judge Rise Picheon by my proposed 2/23/2023 date; and
• Did not respond to calls and emails made to Plaintiff’s attorney on 1/23/23; 2/10/2023; nor 3/6/2023 requesting follow through on arbitration agreement or meet and confer for dismissal.

31. It follows; Plaintiff’s failure to follow procedure- motion, opposition and reply papers on meet and confer requirements and the requirement to file a declaration regarding the results of the meet and confer process entitles this Court to dismiss the Amended Complaint.

VIII

THE AMENDED COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR FRAUDULENT CONCEALMENT

32. “[T]he elements of a cause of action for fraud based on concealment are: ‘ “(1 the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” See XXX v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850, 100 Cal.Rptr.3d 637; accord Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1126–1127, 117 Cal.Rptr.3d 262. See also Bank of America Corp. v. Superior Court, (2011) 198 Cal. App. 4^th 862, 870.
33. There are “‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff, (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.” See LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336, 60 Cal.Rptr.2d 539.
34. Defendant asserts that Plaintiff has met none of the elements stated above. Notably, Defendant is wrongly joined in this case. Plaintiff does not allege who prepared the documents to be recorded and who included Defendant’s name in the title. Besides, since Plaintiff alleges a Trust Deed in favor of the lender, Ladera Mortgage should be the right party to sue (Exhibit- D).
35. It is unclear whether the plaintiff has appropriately named the bank lender in her filings so she mentioned UniSource in the $20,000 check she cashed yet mentions Ladera Mortgage in her amended complaint (Exhibit-E).
36. In the complaint Plaintiff and her counsel identify Defendant as an employee of Ladera Mortgage, a company that has not existed since 2008 (Exhibit- A). Both counsel and plaintiff are aware of said fact yet persist to file suit on a company not in operation since before the property was purchased. Further, Plaintiff’s factual pattern shows that Ladera Lending is the lender of record. The statements of Defendant being a loan officer for Plaintiff’s refinance loan and abuse are therefore false (Exhibit- B). It is the reverse: Plaintiff is working in tandem with relatives in the mortgage industry to unlawful re-convey Defendant’s interest in the property, including but not limited to creating inhabitable living conditions, making false reports to authorities, verbal assaults and harassment, and defamation of character.

IX

PLAINTIFF’S CLAIMS ARE BARRED BY RES JUDICATA

37. Under the doctrine of res judicata, “a judgment for the defendant serves as a bar to further litigation of the same cause of action.” See Mycogen Corp. v. Monsanto Co. (2002), 28 Cal.4th 888, 897; see also Estate of Redfield (2011) 193 Cal.App.4th 1526, 1534.
38. Here, the Court noted deficiencies in Plaintiff’s initial Complaint. Notably, in the Court’s Order dated April 19, 2022, the Court stated that Plaintiff’s claim for Quiet Title was not compliant with Code of Civil Procedure 761.020, which provides that a complaint for quiet title must state: a description of the property that is the subject of the action, the title of the plaintiff as to which a determination under this chapter is sought and the basis of the title, the adverse claims to the title of the plaintiff against which a determination is sought, and the date as of which the determination is sought. Defendant asserts that the Plaintiff’s Amended Complaint still fails to allege sufficient facts to establish the basis for her title.
39. Next, the Court faulted Plaintiff for not naming the correct parties. Plaintiff’s Amended Complaint still fails to name the correct Defendant. Plaintiff’s factual pattern shows that Ladera Lending is the lender of record. Plaintiff does not also allege who prepared the documents to be recorded and who included Defendant’s name in the title. Defendant asserts that Ladera Mortgage should be the right party to be sued as Defendant. The plaintiff has had time to do her due diligence and sue the bank for fraud and concealment if she felt she was defrauded yet she retaliated against Defendant because of the parties’ estranged relationship and cashed a check associated with the transaction she didn’t know was happening.
40. The Court also faulted the initial Complaint for Plaintiff failing to specify which material fact Defendant failed to disclose. In the Amended Complaint, Plaintiff still failed to allege an underlying claim supporting her claim for fraudulent concealment.
41. Lastly, the Court noted that Plaintiff had failed to provide any documentary evidence to support her claim, and that she had failed to file a Notice of Pendency. In the Amended Complaint Plaintiff has not filed a notice of pendency as required under Code of Civil Procedure 761.010(b).

CONCLUSION

42. In light of the foregoing, Defendant respectfully requests this Honorable Court to dismiss this case with prejudice and without the ability to amend. Defendant also requests this Court to grant any other relief it deems just.

Respectfully submitted,

SUPERIOR COURT OF THE STATE OF XXX

COUNTY OF XXXX- SOUTH CENTRAL DISTRICT

I XXX, declare the following:

1. I am the Defendant in this case.
2. I am over eighteen years old.
3. I am of sound mind.
4. I am therefore competent to swear on the matters said herein.
5. I write this declaration in support of my Demurrer to Plaintiff’s First Amended Complaint.
6. Firstly, the plaintiff has failed to provide clear and consistent facts that establish how I breached our contract. The property was gifted to me, and I have invested time and money into it. The plaintiff has not provided a coherent explanation of the alleged breach, making it difficult for me to address the issue. Furthermore, the plaintiff had the opportunity to sue the bank for fraud and concealment but chose to retaliate against me due to our estranged relationship.
7. Secondly, not a single material or identifiable evidence has been presented to support the claim that I was employed or worked in tandem with the bank lender. It is unclear whether the plaintiff has appropriately named the bank lender in her filings, and no evidence has been presented to support this claim.
8. Third, the case should be dismissed because the plaintiff was mentally and physically capacitated and signed all loan documents on her own free will. Moreover, she was fully aware of the consequences and results of the loan transaction. No material evidence has been presented that shows otherwise.
9. Lastly, despite being ordered by Judge Bird to meet and confer by 10/13/2022 and failing to do so again before 1/10/23, the plaintiff still did not file a stipulation for or demand for arbitration with Judge Rise Picheon by the self-proposed deadline of 2/23/2023. Furthermore, the plaintiff did not respond to calls and emails made to their attorney on 1/23/23, 2/10/23 and 3/6/2023, which requested either follow-through on the arbitration agreement or a meet and confer for dismissal. This demonstrates a lack of effort on the plaintiff’s part to resolve the issues outside of court, as well as a lack of credibility in their representations to the court.

I declare under penalty of perjury that the foregoing is true to the best of my knowledge, information, and belief.

Dated: XXX

__________________________

XXX

Defendant, in Pro Per

State of California County of XXX
 

Subscribed and sworn to (or affirmed) before me on this ______ day of _____________, XXX, by _______________________

___________________________________________________, proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me.

(Seal)                                                                                                   Signature_____________________

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