Here is a really easy defendant's sample demurrer template based on word processing error contained in plaintiffs unverified complaint. This sample provides a malleable shell that you can easily adapt to your specific needs if your complaint you are responding to is so poorly drafted that the clerical errors are obvious. The complaint in this action involving real property was also unverified, again, very easy to attack as fatally flawed because in the State of California such a complaint must be verified. (Signed as true, under penalty of perjury). The complaint was done by a law office so their quality control must have gotten fatally low that day. That happens, some paralegal or legal secretary put a sloppy complaint in front of the lawyer and the attorney probably signed it without reading it. It happens. I have been that paralegal! The complaint in this action was dismissed, another victory for paralegal demurrers and motions to strike! I have supreme gratitude for being able to earn and learn and make my mistakes on the clock when I was young and fresh.
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Larry Samuels, Self-Represented
322 Culver Blvd., #144
Playa del Rey, CA 90293
(310) 944-2055
www.ParalegalLosAngeles.Com
Defendant In Pro Per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
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ROSE-FLORES APARTMENTS, L.P.
Plaintiff,
v.
JANE ANDERSON, LARRY SAMUELS,
and DOES 1 through 100.
Defendants
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Case No.: YD 333 999
DEFENDANT LARRY SAMUELS (SAMPLE, MODEL, EXAMPLE, TEMPLATE) NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR QUIET TITLE; MEMORANDUM OF POINTS AND AUTHORITIES THEREOF
[CCP §§446, 472, 761.010, 761.020]
TO THE ABOVE-ENTITLED COURT AND ALL INTERESTED PARTIES HEREIN:
PLEASE TAKE NOTICE that on April 1, 2012 at 8:30 a.m., or as soon thereafter as the court may hear the matter in Department “42” of the above-referenced court located at 111 N. Hill Street, Los Angeles, CA 90012. Defendant Larry Samuels will hereby and does demur, without leave to amend, generally and specifically, to the Unverified Complaint of Plaintiff ROSE-FLORES APARTMENTS, L.P. This Demurrer is made pursuant to Code of Civil Procedure §430.10 et seq. on the following grounds:
1. The entire unverified complaint is vague, ambiguous, incomprehensible, nonsensical and uncertain because the Arabic numbered causes of action in the caption on page 1 do not correspond, align or relate to the alphabetically spelled out numbered causes of action alleged in title case in the body on pages 4, 5 and 6 of the complaint.
2. The unverified complaint fails to state a cause of action for quiet title upon which relief can be granted because it is unverified pursuant to CCP §§446, 761.020.
3. The unverified complaint fails to state a cause of action for quiet title upon which relief can be granted because no legal description of the property is provided pursuant to CCP §761.020(a).
4. The unverified complaint fails to state a cause of action for fraud because the fraud allegation is not specifically pled pursuant to case law.
5. The unverified complaint fails to state a cause of action for breach of contract because no copy of the contract is attached and no terms of any alleged contract are spelled out in the unverified complaint pursuant to case law.
6. The unverified complaint fails to state a cause of action for breach of contract or real property because the alleged contract is over ten years old. The statute of limitations for breach of written contract is four years and for action on real property if five years. Therefore the unverified complaint is barred by the statute of limitations pursuant to CCP §§319, 335, 337, 338.
7. The unverified complaint is vague, ambiguous and uncertain because defendant Larry Samuels is an officer of plaintiff ROSE-FLORES APARTMENTS, L.P. and no authority or facts are presented in the complaint that would permit defendant Larry Samuels to sue himself.
This Demurrer is further based upon this Notice, the attached Demurrer, the attached Memorandum of Points and Authorities, all pleadings and papers on file herein, and upon such further oral and documentary evidence as may be presented at the hearing on this Demurrer.
DATED: December 12,, 2012 By: ___/s/__________________________
EXAMPLE DEMURRER TO THE UNVERIFIED COMPLAINT
Defendant LARRY SAMUELS demurrers to ROSE-FLORES APARTMENTS, L.P.’s Unverified Complaint on the following grounds:
SAMPLE DEMURRER TO THE ENTIRE COMPLAINT
(All Causes of Action to All Defendants)
1. The entire unverified complaint is vague, ambiguous, incomprehensible, nonsensical and uncertain because the Arabic numbered causes of action in the caption on page 1 do not correspond or relate to the alphabetically spelled out numbered causes of action written in title case in the body of the complaint.
2. Defendant Larry Samuels is an officer of plaintiff BUNKER HILL APARTMENTS, L.P. and therefore this if there is in fact a corporate controversy then this is a derivative action and therefore the complaint fails to state a cause of action pursuant to Code of Civil Procedure §§430 et seq.
TEMPLATE DEMURRER TO THE FIRST CAUSE OF ACTION
(Quite Title as to All Defendants)
1. The First Cause of Action fails to state facts sufficient to constitute any cause of action related to quiet title pursuant to Chapter 4 of the California Code of Civil Procedure and CCP §430.01(e).
2. The First Cause of Action for Quiet title is legally and procedurally defective and therefore fatally flawed in that it:
a. Fails to actually contain a verification under penalty of perjury by either plaintiff or its attorney pursuant to CCP §§446, 761.020.
b. No pendency of action has been filed with the county recorder pursuant to CCP §761.010(b).
c. No date of quiet title has been specified or statement of the reasons of quiet title date has been filed pursuant to CCP §761.020(d).
d. No legal description of the property has been provided pursuant to CCP §761.020(a).
LEARNING DEMURRER TO SECOND CAUSE OF ACTION
(Conspiracy to Defraud as to all Defendants)
1. The Second Cause of Action fails to state facts sufficient to constitute a cause of action pursuant to CCP §430.01(e).
2. The Second Cause of Action is legally defective because Plaintiff has failed to specifically plead a cause of action for fraud under Croeni v. Goldstein (1994) 21 Cal.4th 754, Murphy v. BDO Seidman, LLP (2003) 113 Cal.App.4th 687, and Roberts v. Ball, Hunt, Brown & Baerwitz (1976) 57 Cal.App.3d 104.
TEACHING DEMURRER TO THIRD CAUSE OF ACTION
(Rescission of Fraudulent Note and Deed)
1. The Third Cause of Action fails to state facts sufficient to constitute a cause of action pursuant to CCP §430.01(e).
2. The Third Cause of Action fails to state a cause of action because it is barred by the four year statute of limitations for actions on a written contract pursuant to CCP §§ 335, 337.
3. The Third Cause of Action fails to state a cause of action because no copy of the alleged Fraudulent Note and Deed is attached and no terms of any alleged Fraudulent Note and Deed are spelled out in the complaint according to Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 C4th 189 , 198-199, 126 CR2d 908, 914, and/or Davies v. Sallie Mae, Inc. (2008) 168 CA4th 1086, 1091, 86 CR3d 136, 140.
PARALEGAL INSTRUCTIONAL DEMURRER TO FOURTH CAUSE OF ACTION
(Declaratory Relief as to All Defendants)
1. The Fourth Cause of Action fails to state facts sufficient to constitute a cause of action pursuant to CCP §430.01(e).
2. The Fourth Cause of Action fails to state a cause of action for Declaratory Relief related to real property upon which relief can be granted because it is unverified pursuant to CCP §§446, 761.020.
PARALEGAL COLLEGE STUDENT DEMURRER TO FIFTH CAUSE OF ACTION
(Slander of Title as to All Defendants)
1. The Fifth Cause of Action fails to state facts sufficient to constitute a cause of action pursuant to CCP §430.01(e).
2. The Fifth Cause of Action fails to state a cause of action for slander of title to real property upon which relief can be granted because it is unverified pursuant to CCP §§446, 761.020
DATED: December 12, 2012 __/s/____________________________
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
The inconsistencies, non-congruency, procedural mistakes, fatal flaws and errors in this unverified complaint are so glaring that to let it stand would be to deprive defendant of his basic constitutional right to due process.
For example plaintiff’s complaint makes the trilaterally conflicting allegation that:
a. “. . . no payments have been made in over Ten (10) years on the Fraudulent Note . . .”
(Complaint at p. 4, par. 19, lines 25 and 26, SECOND CAUSE OF ACTION)
b. “. . . the absence of a single payment thereunder in over Ten (10) years.”
(Complaint at p. 5, par. 21, lines 7 and 8, SECOND CAUSE OF ACTION)
c. “. . . no payments have ever been made on the Fraudulent Note . . .”
(Complaint at p. 6, par. 29, lines 9 and 10, FOURTH CAUSE OF ACTION)
The unverified complaint is therefore uncertain and ambiguous in that three different and separate allegations of payment history on the purported Fraudulent Note are given. This is just one example of the unverified complaint’s failure to coherently state a cause of action against any named defendant. Since no copy of the purported note has been attached, it is impossible to ascertain exactly what plaintiff’s unverified complaint is referring to.
Defendant Larry Samuels will now address the four main fatal flaws in detail for
1. Failure to verify complaint for action on title to real property,
2. Barring by various statues of limitations,
3. Failure to attach a copy of the contract to the unverified complaint and
4. Failure to specifically plead a fraud cause of action.
II. A DEMURRER IS APPROPRIATE IN THIS MATTER
CCP §430.10 provides in pertinent part that:
“The party against whom a complaint has been filed may object, by demurrer as provided in Section 430.30, to the pleading on any one or more of the following grounds:
(f) The pleading is uncertain. As used in this subdivision, "uncertain" includes ambiguous and unintelligible.”
III. THE COMPLAINT FAILS TO STATE ANY CAUSE OF ACTION RELATED TO TITLE
Plaintiff’s unverified complaint is fatally flawed procedurally because no pendency of action has been filed, the unverified complaint is unverified and also fails to state a date for which quiet title is sought.
California Code of Civil Procedure Chapter 4 - QUIET TITLE, provides in pertinent part that:
761.010. (a) An action under this chapter is commenced by filing a complaint with the court.
(b) Immediately upon commencement of the action, the plaintiff shall file a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located.
761.020. The complaint shall be verified and shall include all of the following:
(a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.
(b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession.
(c) The adverse claims to the title of the plaintiff against which a determination is sought.
(d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.
IV. THE COMPLAINT IS BARRED BY VARIOUS STATUTES OF LIMITATIONS:
A. CONTRACTS:
335. The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows:
337. Within four years: 1. An action upon any contract, obligation or liability founded upon an instrument in writing, except as provided in Section 336a of this code; provided, that the time within which any action for a money judgment for the balance due upon an obligation for the payment of which a deed of trust or mortgage with power of sale upon real property or any interest therein was given as security, following the exercise of the power of sale in such deed
of trust or mortgage, may be brought shall not extend beyond three months after the time of sale under such deed of trust or mortgage.
B. REAL PROPERTY
i. California Code of Civil Procedure Section 319 states that: “No cause of action, or defense to an action, arising out of the title to real property, or to rents or profits out of the same, can be effectual, unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted, or the defense is made, or the ancestor, predecessor, or grantor of such person was seized or possessed of the premises in question within five years before the commencement of the Act in respect to which such action is prosecuted or defense made.”
V. THE COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR FRAUD WITH SPECIFICITY
To sustain a cause of action in fraud, the plaintiff must allege: (1) a knowing false representation by the defendant; (2) intent to defraud or induce reliance; (3) justifiable reliance, and (4) resulting damages. (Croeni v. Goldstein (1994) 21 Cal.4th 754.) In addition, the plaintiff must plead facts that show how, when, where, to whom, and by what means the representations were made. (Murphy v. BDO Seidman, LLP (2003) 113 Cal.App.4th 687.) Every element of fraud must be alleged with sufficient factual specificity to allow the defendant to fully understand the nature of the charges made. (Roberts v. Ball, Hunt, Brown & Baerwitz (1976) 57 Cal.App.3d 104.) First, Plaintiffs have failed to plead any facts demonstrating that a false representation was made to the plaintiffs or that there was reliance on the part of the minors. Second, Plaintiffs’ complaint fails to meet the required specificity in pleading a fraud cause of action. Plaintiffs fail to identify, with adequate specificity, which defendant made what statements and to whom the statements were made. Plaintiffs lump all named and DOE defendants into a single category, which does meet the specificity requirement for pleading fraud.
VI. THE COMPLAINT FAILS TO PLEAD THE TERMS OF THE CONTRACT WORD FOR WORD OR ATTACH A COPY OF THE CONTRACT
Plaintiffs complaint refers variously to a breach of contract, allegedly “fraudulent note,” and or/deed. It is well held that a lawsuit for breach of contract must be pleaded either word for word or generally “according to its legal intendment and effect.” Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 C4th 189 , 198-199, 126 CR2d 908, 914—plaintiff may plead the legal effect of the contract rather than its precise language. Alternatively, a written contract can be pled by attaching a copy to the complaint and incorporating it by reference. Davies v. Sallie Mae, Inc. (2008) 168 CA4th 1086, 1091, 86 CR3d 136, 140.
VII. CONCLUSION
For the foregoing reasons, defendant’s respectfully request that this Court sustain their demurrer in its entirety.
When there is no reasonable probability that the defect of a complaint can be cured by amendment, the courts have held that sustaining a demurrer without leave to amend is not a abuse of discretion. (Herbert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 414, 425-426; Von Batsch v. Am. Dist. Tel. Co. (1985) 175 Cal.App.3d 1111, 1117.) Thus, where Defendants have established that Plaintiff will be unable to cure the defects in the unverified complaint, if given the opportunity to do so, the instant demurrer should be sustained without leave to amend.
DATED: December 12, 2012 ___/s/______________________________