10/13/2009 11:07 FAX 908 889 3900 FAST EVICTIONS @ooz/004 1 [Law Offices of j]OHN E. BOUZANE |ATTORNEY AT LAW 34 OAK CT. SAN BERNARDINO, CA 92410 109) 889-2000 2 3 4 5 6 |State Bar Number 079804 7 |Attomeys for Plaintifi(s) 8 STANISLAUS COUNTY SUPERIOR COURT 9 McpESTO JUDICIAL DISTRICT 10 11 |U.S. BANK NATIONAL ASSOCIATION AS SUCCESSORS TO THE FEDERAL 12 PEPOSIT INSURANCE CORPORAITON (CLUDING ANY ASSIGNORS OR 13 SUCCESSORS IN INTEREST CASE NO. 645068 14 ) ) 2 ) 2 ) } 15|) Plaintiff, ) [LIMITED CIVIL CASE] 2 16 |vs. MEMORANDUM OF POINTS ) a7 ) AND AUTHORITIES IN OPPOSITION TO } DEMURRER TO COMPLAINT 1 } DATE: 10/14/09 19 2 Defendant ) 20 y 2 21 ) = ) 2 2B 1 4 A GENERAL DEMURRER MAY BE SUSTAINED ONLY 25 WHERE THE CAUSE OF ACTION OF THE COMPLAINT, 6 LIBERALLY CONSTRUED, FAILS TO STATE FACTS 27 SUPPORTING ANY THEORY OF RECOVERY 28 1 OPPOSITION TO DEMURRER TO COMPLAINT10/13/2009 11:07 FAX 909 889 3900 FAST EVICTIONS @oos/o04 1 A general demurrer to a cause of action tests whether ANY cause of action is stated regardless of the title or characterization given to it by plaintiff. (e.g., see: Gruenberg v. Aetna lins. Co, (1973) 9 Cal.3d 566, 572, 108 Cal.Rptr. 480, 484; Quelimane Co., Inc. v. Steward [Title Guar, Co, (1998) 19 Cal.4th 26, 28, 77 Cal. Rptr.2d 709, 715 [general demurrer merely tests whether ANY cause of action is stated, even if improperly labeled, and even if there are ||defects in a portion of the cause of action that does not defeat liability on some theory).) ‘Where there is a claimed defect in the form of the pleading, as opposed to whether its [facts support entitlement to relief, the proper mechanism to test such defect is either by a [special demurrer for uncertainty, or by a motion to strike a pleading because it is not drawn in 10 conformity with applicable statutes and rules. (Code of Civil Procedure, Sections 430.10(f); 11 [436) 12]] Code of Civil Procedure Section 452 provides that in the construction of a pleading, for the 13 purpose of determining its effect, "its allegations must be LIBERALLY CONSTRUED with a 14 jiview to substantial justice between the parties.” 15 Furthermore, a demurrer tests only the sufficiency of the pleading itself, and lies only 16 where the defects appear on the FACE of the pleading, Objections which do not so appear 17 hinust be raised by means of Answer. (Code of Civil Procedure Seation 430.30) Asa 18 [corollary to this rule, a defendant may not make allegations of fact in a demurrer which, if true, 19 disclose a defect in the complaint, nor can a defendant strengthen his demurrer by 20 [bringing in evidentiary material to disclose a defect. (Colm v Francis (1916) 30 Cal. App. 742; 2 (1864) 24 Cal. 237, 239; Executive Landscape Corp. v San Vicentente 2 (1983) 145 Cal. App. 34 496, 499, 193 Cal. Rptr. 377) 2B Under the foregoing authorities, if, viewing the pleading liberally, a cause of action is 24 |stated under ANY theory in each of the causes of action which are the subject of defendant's wey an eun vde 25 |\demurrer, the demurrer of defendant must be overruled as a matter of law. 26 27 28 OPPOSITION TO DEMURRER TO COMPLAINT10/13/2009 11:07 FAX 909 889 3900 FAST EVICTIONS @ooesoos 1 In the case at bar, defendant asserts the complaint is vague and ambiguous in which |defendants gives no grounds as to which portions of the complaint are vague or ambiguous. [All of the defendant's contentions on this demurrer are utterly without merit and the entire jemurrer, is frivolous and designed solely to delay this proceeding, IDATED: 10/9/09 angen Plaintit we sauna on 10 ul 12 1B “4 15 16 7 18 19 20 2 2 24 25 26 2 28 3 OPPOSITION TO DEMURRER TO COMPLAINT10/13/2009 11:08 FAX 909 889 3900 FAST EVICTIONS @oo1/004 d not a party to the within entitled action; my business address is 634 Oak Ct. San d and would do so competently. DEFENDANT'S attomey in said action by placing a true copy thereof enclosed in a sealed avelope with postage thereon fully prepaid in the United States mail at Los Angeles, Palifomia, addressed as follows: dant’s attomey via facsimile thi 11:0fhm to the number of 925 957 9799 iD] Ve ‘declare under penalty of perjury under the laws of the State of California that the going is true and correct and that this declaration was executed on 10/12/09 at N. Greulich 4 OPPOSITION TO DEMURRER TO COMPLAINTPROOF OF SERVICE BY MAIL(1013A, 2015.5 C.CP) STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO Tam a resident offemployed in the county aforesaid; I am over the age of eighteen years jand not a party to the within entitled action; my business address is 634 Oak Ct. San ardino, Ca 92410. ‘The matters contained in this declaration are known to me ersonally and if called upon to testify as to such matters under oath in a court of law, I ld and would do so competently. ‘On 10/12/09, I served the within MEMORANDUM OF POINTS AND UTHORITIES IN OPPOSITION TO DEMURRER TO COMPLAINT on the weer aneon 10 u 12 prlfomia, addressed as follows: B FIMOTHY L. MCCANDLESS, ES‘ 14 LAW OFFICES OF TIMOTHY L. 13240 AMARGOSA ROAD 15 PICTORVILLE, CA 92392 in 16 EFENDANT’S attorney in said action by placing a true copy thereof enclosed in a sealed Ynvelope with postage thereon fully prepaid in the United States mail at Los Angeles, FIMOTHY L. MCCANDLESS, ESQ. .AW OFFICES OF TIMOTHY L. MCCANDLESS 320 MAIN ST. 18 MARTINEZ, CA 94553 Lalso served the within MEMORANDUM OF POINTS AND 19 \UTHORITIES IN OPPOSITION TO DEMURRER TO COMPLAINT on the 20 Defendant's attorney via facsimile this date at 11:02am to the number of 925 957 9799 21 22] I declare under penalty of perjury under the laws of the State of California that the 2B Leeone is true and correct and that this declaration was executed on 10/12/09 at 24 [San Bernardino, Ca 25 26 fi— => 27 Greulich 28 4 OPPOSITION TO DEMURRER TO COMPLAINTSow aan eon \Law Offices of JOHN E. BOUZANE TTORNEY AT LAW bs OAK CT. ;AN BERNARDINO, CA 92410 (909) 889-2000 [State Bar Number 079804 JAttoreys for Plaintifi(s) S. BANK NATIONAL ASSOCIATION |AS SUCCESSORS TO THE FEDERAL EPOSIT INSURANCE CORPORAITON INCLUDING ANY ASSIGNORS OR 13 SUCCESSORS IN INTEREST 4 15]] Plaintiff, 16 |vs. 17 18] \NPHONY JoMARTIN 19 Defendant 20 21 2 es 2B 24 25 26 27 28 STANISLAUS COUNTY SUPERIOR COURT, SAN JOSE JUDICIAL DISTRICT CASE NO. 645068 [LIMITED CIVIL CASE] MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER TO COMPLAINT DATE: 10/14/09 TIME: 8:30AM DIV. 22 \TRIAL: NONE SET 1 A GENERAL DEMURRER MAY BE SUSTAINED ONLY WHERE THE CAUSE OF ACTION OF THE COMPLAINT, LIBERALLY CONSTRUED, FAILS TO STATE FACTS SUPPORTING ANY THEORY OF RECOVERY 1 OPPOSITION TO DEMURRER TO COMPLAINTaw s wn A general demurrer to a cause of action tests whether ANY cause of action is stated [regardless of the title or characterization given to it by plaintiff. (e.g., see: Gruenberg v. Aetna lins. Co. (1973) 9 Cal.3d 566, 572, 108 Cal.Rptr. 480, 484; Quelimane Co.. Ine. v. Steward [Title Guar. Co. (1998) 19 Cal 4th 26, 28, 77 Cal. Rptr.2d 709, 715 [general demurrer merely {tests whether ANY cause of action is stated, even if improperly labeled, and even if there are {defects in a portion of the cause of action that does not defeat liability on some theory/.) Where there is a claimed defect in the form of the pleading, as opposed to whether its {facts support entitlement to relief, the proper mechanism to test such defect is either by a {special demurrer for uncertainty, or by a motion to strike a pleading because it is not drawn in |conformity with applicable statutes and rules, (Code of Civil Procedure, Sections 430.10(1; 436) Code of Civil Procedure Section 452 provides that in the construction of a pleading, for the ing its effect, "its allegations must be LIBERALLY CONSTRUED with a lpurpose of dete lview to substantial justice between the parties." Furthermore, a demurrer tests only the sufficiency of the pleading itself, and lies only lwhere the defects appear on the FACE of the pleading. Objections which do not so appear Imust be raised by means of Answer. (Code of Civil Procedure Section 430,30) Asa [corollary to this rule, a defendant may not make allegations of fact in a demurrer which, if tue, lwould disclose a defect in the complaint, nor can a defendant strengthen his demurrer by Joringing in evidentiary material to disclose a defect. (Colm v Francis (1916) 30 Cal. App. 742; |Cook v de la Guerra (1864) 24 Cal. 237, 239; Executive Landscape Corp. v San Vicentente [Country Villas IV Assn, (1983) 145 Cal. App. 34 496, 499, 193 Cal. Rptr. 377) Under the foregoing authorities, if, viewing the pleading liberally, a cause of action is, stated under ANY theory in each of the causes of action which are the subject of defendant's ldemurrer, the demurrer of defendant must be overruled as a matter of law. 2 OPPOSITION TO DEMURRER TO COMPLAINT.In the case at bar, defendant asserts the complaint is vague and ambiguous in which ldefendants gives no grounds as to which portions of the complaint are vague or ambiguous. |All of the defendant's contentions on this demurrer are utterly without merit and the entire \demurrer, is frivolous and designed solely to delay this proceeding. k John E- Bouse ‘Atiomey for Plaintiff DATED: 10/9/09 3 OPPOSITION TO DEMURRER TO COMPLAINT.