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INSERT NAME
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Defendant, In Pro Per
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Superior Court of the State of California
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For the County of <INSERT COUNTY> <INSERT COURT HOUSE>
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<INSERT PLAINTIFF NAME>
Plaintiff,
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vs.
<INSERT DEFENDANT(S) NAME>,
Defendant
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Case No. : <INSERT CASE NUMBER>
NOTICE OF DEMURRER AND DEMURRER TO
COMPLAINT; MEMORANDUM OF POINTS AND
AUTHORITIES
DATE: <INSERT DATE –call and get this info>
TIME:
DEPT:
NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT BY DEFENDANT
<INSERT NAME>
TO: <INSERT PLAINTIFF NAME> , Plaintiff and <INSERT ATTORNEY NAME, FIRM NAME,
ADDRESS>, Plaintiff’s Counsel
PLEASE TAKE NOTICE that on <INSERT DATE> at <INSERT TIME> in Department
<INSERT DEPT NUMBER> of the above entitled court, located at <INSERT COURT ADDRESS
INCLUDING ZIP> Defendant, <INSERT DEFENDANT(S) NAME>,
will and hereby does move
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- 1 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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the Court for an order sustaining a general demurrer to the unlawful detainer complaint filed by
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Plaintiff without leave to amend.
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This demurrer is made pursuant to Cal. Civil Code of Proc. § 1166(a) that the complaint must
<INSERT GROUNDS FOR DEMURRER – EXAMPLE: be properly verified, pursuant to CCCP §
430.10 (c) > thus it is fatally defective and will not support an unlawful detainer action.
This demurrer is based upon this notice of demurrer, the attached demurrer, the memorandum
of points and authorities, and upon such oral and documentary evidence as may be presented by
Defendant upon the hearing of the demurrer.
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DATED: ________________ ______
__________________________________________,
Defendant, In Pro Per
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- 2 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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DEMURRER TO PLAINTIFF’S COMPLAINT
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Defendant, <INSERT NAME> (“Defendant”) hereby generally demurs to the unlawful
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detainer complaint filed by Plaintiff, <INSERT PLAINTIFF NAME>(“Plaintiff”) as follows:
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FIRST GROUND FOR DEMURRER
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1.
Defendant generally demurs to the unlawful detainer complaint filed by Plaintiff on
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the grounds of improper verification of complaint and therefore Defendant alleges that there is no
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lawfully verified complaint on file with this court in violation of California Code of Civil Procedure
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§ 1166 (a) (1).
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2.
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1.
SECOND GROUND FOR DEMURRER
Defendant generally demurs to the unlawful detainer complaint filed by Plaintiff on the grounds
<INSERT SECOND GROUND>
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THIRD GROUND FOR DEMURRER
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Defendant generally demurs to the unlawful detainer complaint pursuant to <INSERT THIRD
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GROUNDS>
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<INSERT ADDITIONAL GROUNDS AS NECESSARY>
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DATED: __________________
______________________________,
Defendant, In Pro Per
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- 3 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO
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COMPLAINT
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I.
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PRELIMINARY STATEMENT
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<INSERT OVERALL STATEMENT: SAMPLE STATEMENT: Plaintiff has failed to
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properly verify the complaint. Verification was available and yet it was
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not obtained for the simple reason that Verification is not possible. Plaintiff xxxx and Plaintiff’s
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counsel are fully aware of the pending appeal on issue of Quiet Title, Declaratory Relief, and Fraud
has not been fully adjudicated to prove legal certainty of standing or jurisdiction. >
<INSERT SPECIFIC POINTS – 1 PARAGRAPH PER POINT>
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<INSERT CLOSING: SAMPLE CLOSING: Therefore, the complaint fails, on its face, as it
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is improperly verified by an attorney in violation of California Code of Civil Procedure>
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For these reasons, this demurrer should be granted in its entirety without leave to amend.
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II.
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ARGUMENT
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A.
THE COURT IS AUTHORIZED TO GRANT THIS DEMURRER
Under CCCP § 1170, a defendant in an unlawful detainer proceeding may answer or demur.
The period for noticing the hearing on a demurrer is not set forth in the unlawful detainer statutes,
Sections 1159 through 1179a. However, Section 1177 provides that all provisions of law contained in
Part 2 of the Code of Civil Procedure (the ones applicable to regular civil actions) are otherwise
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generally applicable to unlawful detainer actions, unless other procedures are specified in the
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unlawful detainer statutes. Since the unlawful detainer statutes do not provide for the timing of a
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hearing on a demurrer, the timing for demurrers is governed by CCCP § 1005, which requires 16
- 4 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
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court days notice of the hearing on the demurrer, plus five calendar days for notice by mailing.
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Thus, this demurrer is properly before the Court and notice is proper.
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The failure of the pleading to state a cause of action results from the fact that the complaint
appears deficient on the face of the pleading or from judicially noticed matter. Hall vs. Chamberlin,
(1948) 31 Cal.2d 673, 679-680.
If a defendant negates any essential element of a particular cause of action, a judge should
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sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp.(1992) 4 Cal.App.
4th 857, 880. Thus, the Court is authorized to grant this demurrer.
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B.
<INSERT YOUR GROUNDS> GROUND ONE: UNLAWFUL DETAINER
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COMPLAINT IS IMPROPERLY VERIFIED AND RENDERS THE
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COMPLAINT GENERALLY DEMURRABLE
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The complaint is improperly verified for several reasons and the complaint is subject to a
general demurrer on that basis.
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1. The Summons and Complaint both indicate that the Plaintiff is Deutsche Bank National Trust
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Company as Trustee for Morgan Stanley Trust 2006-NC2. The Plaintiff must plead with standing and
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sufficiency. As our Supreme Court has said in Silcox v. Lang, (1889) 78 Cal. 118, 122: “The
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Practice of attorneys verifying for their client should be discouraged, and to that end, the provision
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of the code should receive a strict construction.”
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2. The only time the plaintiff’s attorney may verify the complaint is when the plaintiff is absent
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from the county where the attorney has his or her office or is otherwise unable to verify the
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complaint; or the facts are within the personal knowledge of the attorney verifying the complaint.
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CCP § 446; League of Women Voters v. Eu (1992) 7 CA4th 649, 656.
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- 5 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
3. Civil Code of Procedure § 446 does not authorize attorney verification where absence of the
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party creates no inability on his part to verify. In DeCamp v. Kensington Corp. (1978) 83 Cal.
App.3d 268, 275: “If the client can be reached by mail, no such impossibly exist…and the attorney
verification is not allowed”. NOT ALLOWED. This cannot be any more direct or plain in its
language. Plaintiff’s attorneys know this, or should know this.
4. The Complaint is improperly verified by the attorney who represents the Plaintiff, <INSERT
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ATTORNEY NAME> stated in her/his verification:
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a.
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b. “Verification was executed at <insert city, California”
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c.
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“I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct”
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“Such party is absent from the county of aforesaid where such attorneys have their offices”
Plaintiff <INSERT PLAINTIFF> lists an address at <INSERT ADDRESS>, (Defendant’s
Judicial Notice 1), and as part of ,INSERT, admits on its website it has 90 offices in the United States,
of which 3 are listed within the same county of ATTORNEYS ADDRESS and are 38.4 miles or less
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from Counsel’s office.
(Judical Notice 2)
NAME is an attorney duly licensed in the State of California and HE/SHE was admitted to
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practice law in the state of California on DATE. Her/his verification was signed under penalty of
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perjury.
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There is no verified complaint on file with this court in violation of CCCP § 1166(a)(1) and
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the Court should grant Defendants Demurrer.
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C.
GROUND TWO: <INSERT GROUND TWO>
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- 6 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
<INSERT CASE CITES ALONG WITH STATUTES VIOLATED>
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D.
GROUND THREE:
<INSERT GROUND THREE or REMOVE IF NOT THREE
GROUNDS>
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<INSERT CASE CITES ALONG WITH STATUTES VIOLATED>
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III.
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CONCLUSION
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Based on the foregoing facts, arguments, and points of law, the Court is urged to sustain
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Defendant’s general demurrer to the unlawful detainer complaint filed by Plaintiff without leave to
amend, and that Defendant have Judgment against Plaintiff for costs, and if applicable, attorney fees.
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DATED: ________________ ________
_____________________________,
Defendant, In Pro Per
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- 7 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
PROOF OF SERVICE
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I am over the age of 18 and not a party to this action.
I am a resident of or employed in the county where the mailing occurred; my
business/residence address is:
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On ____________________ I served the foregoing document(s) described as: NOTICE OF
DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND
AUTHORITIES to the following parties:
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NAME AND ADDRESS OF ATTORNEY OR PLAINTIFF WITHOUT AN ATTORNEY
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X
[ ] (By U.S. Mail) I deposited such envelope in the mail at ______________,
California with postage thereon fully prepaid. I am aware that on motion of the
party served, service is presumed in valid in postal cancellation date or postage
meter date is more than one day after date of deposit for mailing in affidavit.
[ ] (By Personal Service) I caused such envelope to be delivered by hand via messenger
service to the address above;
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[ ] (By Facsimile) I served a true and correct copy by facsimile during regular business
hours to the number(s) listed above. Said transmission was reported complete
and without error.
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I declare under penalty of perjury under the laws of the State of California that the foregoing
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is true and correct.
DATED: ______________
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_______________________________________
NAME OF PERSON SERVING PAPERS
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