_________________________________________________________________________________________________

NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL

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Harold M. Hewell (Cal. SBN: 171210)
hmhewell-hewell-lawfirm.com
HEWELL LAW FIRM
501 W. Broadway, Suite 800
San Diego, California 92101
Tel: 619-235-6854
Fax: 888-298-0177
Attorney for Defendants, Janet
Vohariwatt and Paul Vohariwatt



SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN DIEGO, CENTRAL DIVISION
KEITH MATSON AND JOANNE
MATSON,


Plaintiffs,




v.










JANET VOHARIWATT, PAUL
VOHARIWATT, and DOES 1
through 5,


Defendants.

Case: 37-2011-00100977-CU-NP-CTL
The Hon. Joel M. Pressman

NOTICE OF DEMURRER AND
DEMURRER BY DEFENDANTS
JANET VOHARIWATT AND
PAUL VOHARIWATT TO
COMPLAINT; MEMORANDUM
OF POINTS AND AUTHORITIES

Civil – Unlimited
Lawsuit Filed: November 10, 2011
[Request for Judicial Notice]

Hearing
Date: April 20, 2012
Time: 10:30 A.M.
Department: C-66


_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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TO THE COURT AND TO ALL PARTIES HEREIN:
PLEASE TAKE NOTICE that, on April 20, 2012, at 10:30 a.m., counsel may be
heard in Department C-66 of the above-captioned Court, the Hon. Joel M. Pressman
presiding, located at 330 West Broadway, San Diego, California, 92101. Defendants
Janet Vohariwatt and Paul Vohariwatt (“Defendants”) will, and hereby do, demur to the
Complaint filed in this action by Plaintiffs Joanne Matson and Keith Matson
(“Plaintiffs”).
The demurrer will be based upon this notice, the Demurrer and Memorandum of
Points and Authorities attached hereto, the Request for Judicial filed concurrently
herewith, the file and record in this action, and such further and other matters as the
Court may allow.

Respectfully submitted,



Dated: Thursday, January 19, 2012.
HEWELL LAW FIRM


By: ___________________
Harold M. Hewell
Attorney for Plaintiffs











(VIA FAX/ELECTRONIC TRANSMISSION)

_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
Page of

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DEMURRERS
DeIendants Janet Vohariwa tt and Paul Vohariwatt hereby dem ur to the
Complaint in this action on the Iollowing grounds:
1. The Iirst Cause oI Action Ior malicious institution oI civil
proceedings Iails to state I acts suIIicient to constitute a cause oI action. Cal. Civ.
Proc. Code § 430.10(e).
2. The Second Cause oI Action Ior co nversion Iails to state Iacts
suIIicient to constitute a cause oI action Ior conversion. Cal. Civ. Proc. Code §
430.10(e).
3. The Third Cause oI Action Ior intrusion into priva te aIIairs Iails to
state Iacts suIIicient to cons titute a cause oI action Ior conversion. Cal. Civ. Proc.
Code § 430.10(e).
4. The Fourth Cause oI Action Ior unjust enrichment Iails to state Iacts
suIIicient to constitute a cause oI action Ior conversion. Cal. Civ. Proc. Code §
430.10(e).
Respectfully submitted,



Dated: Thursday, January 19, 2012.
HEWELL LAW FIRM


By: ___________________
Harold M. Hewell
Attorney for Plaintiffs







(VIA FAX/ELECTRONIC TRANSMISSION)
_______________________________________________________________________________

NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
Tables - Page i of iii

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TABLE OF CONTENTS


I. Introduction............................................................................................................................
II. Facts as alleged in the Matson action................................................................................
III. Legal standard........................................................................................................................
IV. Argument................................................................................................................................
A. Plaintiffs have not stated a claim for malicious institution of civil
proceedings................................................................................................................
1. The Matsons have not established that the Vohariwatts lacked
probable cause.....................................................................................................
2. The Matsons have not established a basis for the element of
“malice”................................................................................................................
3. The Matsons have not established that the wrongful foreclosure
action terminated favorably for them...........................................................
4. The Matsons have not established that they suffered actual
damages................................................................................................................
B. Plaintiffs have not stated a claim for conversion................................................
C. Plaintiffs have not stated a claim for intrusion into private affairs..................
D. Plaintiffs have not stated a claim for unjust enrichment...................................
V. Conclusion..............................................................................................................................





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_______________________________________________________________________________

NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
Tables - Page ii of iii

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TABLE OF AUTHORITIES


California Cases:

Blank v. Kirwan
(1985) 39 Cal. 3d 311.....................................................................................
Dalany v. American Pacific Holding Corp.
(1996) 42 Cal. App. 4th 822.........................................................................
Drummond v. Desmarais
(2009) 176 Cal. App. 4th 439.......................................................................
Joslin v. H.A.S. Ins. Brokerage
(1986) 184 Cal. App. 3d 369........................................................................
McKell v. Washington Mut., Inc.
(2006) 49 Cal. Rptr. 3d 227..........................................................................
Paiva v. Nichols
(2008) 168 Cal. App. 4th 1007.....................................................................
Serrano v. Priest
(1971) 5 Cal. 3d 584.......................................................................................
Skrbina v. Fleming Cos.
(1966) 45 Cal. App. 4th 1353.......................................................................
Quick v. Pearsoll
(2010) 186 Cal. App. 4th 371.......................................................................
Sanders v. American Broadcasting Co.
(1999) 20 Cal. 4th 907...................................................................................
Videotape Plus, Inc. v. Lyons
(2001) 89 Cal. App. 4th 156.........................................................................






5

8

5, 7

4

12

5

4

4

4

11

5

_______________________________________________________________________________

NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
Tables - Page iii of iii

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California Statutes:

Civil Code § 47...........................................................................................................
Civil Code § 2323......................................................................................................
Code of Civil Procedure § 430.10(e)....................................................................
Code of Civil Procedure § 430.30(a)....................................................................
Code of Civil Procedure § 430.50(a)....................................................................

Treatises:

1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts.............................
3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 565 ..................................


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_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
On February 15, 2011, the Vohariwatts filed an action styled as Paul Vohariwatt
vs. Washington Mutual Bank, Superior Court of California, County of San Diego, Case
No. 37-2011-00085937-CU-OR-CTL (“Wrongful Foreclosure Action”), which is
pending before the Honorable Gonzalo Curiel in Department C-60 of this Court. The
original complaint filed by the Vohariwatts, who have been representing themselves in
that matter, alleged various causes of action against Washington Mutual Bank and
California Reconveyance Company. The claims were based on the Vohariwatts’
contention that property they owned at 31 Sandpiper Strand, Coronado, California
92118 (“Property”) had been wrongfully foreclosed upon and sold at trustee’s sale on
February 3, 2011.
On February 14, 2011, a Trustee’s Deed Upon Sale was recorded in the official
records of the of the Recorder’s Office of San Diego County as Document No. 2011-
0084843. According to that document, the Property had been purchased for
$1,150,000.00 at the trustee’s sale by “KEITH & JOANNE MATSON HUSBAND
AND WIFE AS JOING [sic] TENANTS”.
On March 30, 2011, the Vohariwatts filed a first amended complaint in which
Keith Matson and Joanne Matson, the purchasers of the Property and the plaintiffs in the
above-captioned action (“Matson Action”), were added as named defendants, in
addition to Washington Mutual Bank and California Reconveyance Company.
Subsequent to a hearing on a demurrer to the first amended complaint, the
Vohariwatts filed a second amended complaint in which they named five defendants:
California Reconveyance Company; Washington Mutual Bank; Keith Matson; Joanne
Matson; and JP Morgan Chase Bank, N.A. Keith Matson and Joanne Matson were
dismissed with prejudice from the Wrongful Foreclosure Action on October 7, 2011
pursuant to an order by the Honorable Lisa Foster following a hearing on a demurrer to
the second amended complaint.
_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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The Complaint in the Matson Action arises from allegations made against the
Matsons in the second amended complaint from the Wrongful Foreclosure Action,
statements made in open court by Mrs. Vohariwatt at the hearing on the demurrer and
related events. However, in pleading their Complaint, the Matsons have failed to state
facts sufficient to support any cause of action alleged therein: malicious institution of
civil proceedings,
1
conversion, intrusion into private affairs or unjust enrichment.
Plaintiffs therefore bring this demurrer pursuant to Cal. Civ. Proc. Code § 430.10(e).
Plaintiffs respectfully contend that the demurrer should be sustained as to the
whole Complaint, and that the Complaint be dismissed with prejudice in its entirety on
the ground that the defects in pleading cannot be cured by amendment.
II. FACTS AS ALLEGED IN THE MATSON ACTION
According to the Complaint in the Matson Action, the Matsons purchased the
Property owned by the Vohariwatts on February 3, 2011 at a trustee’s sale alleged in the
Complaint to have been conducted pursuant to Cal. Civ. Code § 2923. The Complaint
states that the Vohariwatts received a Notice of Default for the Property on July 6, 2010,
and a Notice of Trustee’s Sale on October 7, 2010. Complaint, ¶¶ 3-4.
The Complaint further states that the Matsons went to the Property after
purchasing it and found that a family was living as tenants in the home that was part of
the Property, and that they were told by the tenants that they leased it from the
Vohariwatts, who had collected one year of rent in advance based upon a monthly lease
payment of $5,000.00. Complaint, ¶¶ 5-6.
On February 15, 2011, the Vohariwatts filed the Wrongful Foreclosure Action
against Washington Mutual Bank and California Reconveyance Company, asserting
causes of action that included wrongful foreclosure and quiet title. The Vohariwatts

1
For the sake of clarity and simplicity, this cause of action will be referred to throughout
this demurrer as “malicious prosecution,” even though it is out of favor with some courts
because of its descriptive inadequacy.
_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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amended the complaint on March 30, 2011 with a verified complaint that also alleged
causes of action for wrongful foreclosure and quiet title. The Matsons had been added to
the first amended complaint as defendants. On September 6, 2011, the Vohariwatts
amended the complaint again. The verified second amended complaint (“SAC”), a copy
of which is attached as an exhibit to the Matson’s Complaint, retained the defendants
named in the first amended complaint and added JP Morgan Chase Bank, N.A. as an
additional defendant, Complaint, ¶¶ 7-9.
On September 22, 2011, the Court joined the Matsons with California
Reconveyance Company in a demurrer which was sustained on October 7, 2011; the
Matsons were dismissed from Wrongful Foreclosure Action. Complaint, ¶¶10-11.
The SAC contained an allegation that: “The Matsons have been in contact with
[California Reconveyance Company] prior to the trustee sale auction. Plaintiffs have
learned further that The [sic] Matsons were also there to ‘beg’ [California Reconveyance
Company] to sell the property to them. SAC, p. 21, ¶ 39.” Complaint, ¶ 12.
The Complaint then alleges that the foregoing allegation from the SAC evidences
“the insinuation that permeates the SAC in that the MATSONS used illicit insider
knowledge to collude with California Reconveyance Company and JP Morgan Chase to
acquire” the Property, and that this “idea was baseless.” It further states that: “No
reasonable person in the VOHARIWATTS’ circumstances would have believed this
without some tangible supporting evidence” and that the “sole purpose of the allegation
was to prop up the VOHARIWATTS’ lawsuit against the MATSONS.” Complaint, ¶ 13.
The Complaint admits that the Matsons do not know the motive behind the
Vohariwatts’ decision to name them as defendants in the Wrongful Foreclosure Action,
but goes on to speculates that, “presumably it was retribution towards the people who
purchased their old home.” Building on this presumption, the Complaint further alleges
that this “strategy was effective in that it subjected the MATSONS to the stress, fright
and expense of being personally sued” and adds, without stating any facts to support the
allegation, that “[a]t the least, the VOHARIWATTS were simply indifferent to the fact
_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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that their claim against the MATSONS was unfounded.” The Complaint continues to
build on the admittedly presumed motive of “retribution” by stating that: “Regardless,
the suit was brought for an improper purpose.” Complaint, ¶ 14.
The factual allegations in the Complaint conclude with the claim that at the
hearing on the demurrer, Ms. Vohariwatt:
presented what she considered “proof” of the MATSONS’ collusion with
the co-defendants. She read Keith Matson’s personal financial information
out loud to the court. This included information about his credit cards and
a personal bank account that he held with JP Morgan & Co. in the 1990s
(prior to its merger with Chase Manhattan Bank in 2000 and Washington
Mutual in 2008). How she acquired this information is inexplicable and is
deeply disturbing to the MATSONS.
Complaint, ¶ 15.
III. LEGAL STANDARD
A complaint is subject to a demurrer if it fails to “state facts sufficient to constitute
a cause of action.” Cal. Civ. Code § 430.10(e). A demurrer may be taken to the whole
complaint or to any of the causes of action stated therein. Cal Civ. Pro. Code §
430.50(a); Skrbina v. Fleming Cos. (1966) 45 Cal. App. 4th 1353, 1364.
When ruling on a demurrer, the Court looks to the face of the complaint, the
exhibits attached to the complaint, and upon matters of which the Court may take
judicial notice. Quick v. Pearsoll (2010) 186 Cal. App. 4th 371. For the purpose of ruling
on a demurrer, material facts alleged in the complaint are treated as true. Serrano v. Priest
(1971) 5 Cal. 3d 584, 591.
The Court need not accept “contentions, deductions or conclusions of fact or
law.” Id. Moreover, the Court need not accept factual allegations contradicted by matters
of public record or other judicially noticeable facts. Cal. Civ. Proc. Code § 430.30(a);
Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal. App. 3d 369, 374-75.
A demurrer must be sustained without leave to amend absent a showing by
_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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plaintiff that a reasonable possibility exists that the defect can be cured by amendment.
Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.
IV. ARGUMENT
A. Plaintiffs Have Not Stated a Claim for Malicious Institution of Civil
Proceedings
The elements of a cause of action for malicious prosecution are: “(a) the
institution of an action at the direction of the defendant ... (b) without probable cause
and (c) with malice, (d) termination of the initial action favorably to the plaintiff ..., and
(e) resulting damage.” Drummond v. Desmarais (2009) 176 Cal. App. 4th 439, 449.
The first element is not disputed. As noted above, the Vohariwatts are not
represented by counsel in the Wrongful Foreclosure Action, so it is clear that their
lawsuit was initiated by them and has been prosecuted by them to date. However, the
Matsons have utterly failed to sufficiently plead the other elements of this cause of
action.
1. The Matsons have not established that the Vohariwatts lacked probable cause
“‘Probable cause exists when a cause of action is, objectively speaking, legally
tenable. [Citations.]’ (Videotape Plus, Inc. v. Lyons (2001) 89 Cal.App.4th 156, 161 [107
Cal.Rptr.2d 1].) The claim need not be meritorious in fact, but only “`arguably tenable . .
. .”’ (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1019 [85 Cal.Rptr.3d 838], original
italics (Paiva).)’” Drummond v. Desmarais, supra, 176 Cal. App. 4th 439, 453.
Drummond goes on to note that the existence of probable cause is determined under an
objective standard “applied to the facts upon which the defendant acted in prosecuting
the prior case.” Id.
The Matson’s only apparent attempt to establish lack of probable cause by the
Vohariwatts is the SAC excerpt found in paragraph 12 of the Matson Complaint: “The
Matsons have been in contact with [California Reconveyance Company] prior to the
trustee sale auction. Plaintiffs have learned further that The [sic] Matsons were also there
to ‘beg’ [California Reconveyance Company] to sell the property to them. SAC, p. 21, ¶
_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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39.” However, the Matsons offer no facts to refute this allegation. They just deny it and
make unsupported and conclusory assertions: “This idea was baseless. No reasonable
person in the VOHARIWATTS’ circumstances would have believed this without some
tangible supporting evidence.”

Complaint, ¶ 13.
2

Given the lack of factual allegations refuting the excerpt from the SAC, it is ironic
that the Matsons would even allege that “No reasonable person in the
VOHARIWATTS’ circumstances would have believed this without some tangible
supporting evidence.” (Emphasis added.) That is just what the Matsons are doing: they are
asking the Court to believe that the excerpt from the SAC is “baseless” without providing
“some tangible supporting evidence.” The truth or falsity of this particular allegation
from the SAC is within the Matson’s personal knowledge; the failure to plead any factual
allegations to refute the excerpt speaks volumes.
The allegations in the Complaint that “[n]o reasonable person in the
VOHARIWATTS’ circumstances would have believed this [the allegations in the
excerpt from the SAC] without some tangible supporting evidence” (Complaint, ¶ 13) is
meaningless, as the Matsons were dismissed from the Wrongful Foreclosure Action on a
sustained demurrer; the Vohariwatts never had an opportunity to present evidence that
might have supported this allegation. Additionally, the allegation that “No reasonable
person in the VOHARIWATTS’ circumstances
3
would have believed that there were
reasonable grounds to bring the lawsuit against the MATSONS” (Complaint, ¶ 20) is
completely absent of any supporting facts to support this conclusory allegation.

2
It is critical to note throughout this discussion that the Matsons were dismissed from
the Wrongful Foreclosure Action after the Court sustained the demurrer. There were no
findings of fact in the underlying case, and the Matsons make little effort to engage in any
factually-driven pleading in the subject Complaint.
3
The Matsons make no effort to explain what they mean when they refer (twice) to a
“reasonable person in the VOHARIWATTS’ circumstances . . . ,” thereby rendering this
allegation meaningless.
_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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Even the actual cause of action fails to plead facts in support of the claim that the
SAC excerpt is “baseless.” Instead, the cause of action is little more than a collection of
case law and short boilerplate allegations devoid of supporting facts; it is nothing more
than unsupported conclusions of fact or law.
The Matsons have utterly failed to plead sufficient facts to establish this second
element of the malicious prosecution claim as set forth above in Drummond.
2. The Matsons have not established a basis for the element of “malice”
Given the essential role of the malice element in a malicious prosecution claim, it
is astounding that the Matsons plainly admit that they have no idea what prompted the
Vohariwatts to sue them: “The VOHARIWATTS’ motive in filing the lawsuit is
currently unknown . . . .” Complaint, ¶ 14. However that does not prevent them from
speculating that the filing was motivated by “retribution” because the Matsons
purportedly acquired the Vohariwatt’s Property. Id.
The Matsons then take that sliver of pure speculation and plead it forward as if it
was grounded in factual allegations: “The VOHARIWATTS’ strategy was effective in
that it subjected the MATSONS to the stress, fright and expense of being personally
sued. At the least, the VOHARIWATTS were simply indifferent to the fact that their
claim against the MATSONS was unfounded.” Id.
In one paragraph, the Matsons go from (a) an admission that they do not know
the Vohariwatt’s motivation for suing them, to (b) making a motive up (“retribution”),
(c) treating that speculative motive as established fact (the “strategy was effective”), and
(d) asserting a backup motive of indifference, the polar opposite of malice, thereby
undermining the malice element completely. Complaint, ¶ 14. (Emphasis added.)
The Matsons then have the audacity to state, without any factual claims to
support the allegations, that it is a “fact that their claim against the MATSONS was
unfounded” and that “[r]egardless, the suit was brought for an improper purpose.”
These fact-free assertions establish nothing but the Matson’s predilection for conclusory
contentions of purported “fact.”
_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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The only fact that arises out of these allegations is that the Matsons have
absolutely and completely failed to establish the element of malice (they even admit they
don’t know the motive for the lawsuit against them). All the case law cited in the pleading
of the cause of action cannot rectify that; defining malice does not establish it. Neither
do boilerplate statements such as “The VOHARIWATTS initiated the lawsuit with
malice.” Complaint, ¶ 21.
The Matsons have failed to establish malice, the third element of a malicious
prosecution claim.
3. The Matsons have not established that the Wrongful Foreclosure Action
terminated favorably for them
The Matsons have not pleaded sufficient facts to establish that the underlying
case was “legally terminated in their favor” as this concept is understood in the context of
a malicious prosecution claim.
In order for the termination of a lawsuit to be considered favorable to the
malicious prosecution plaintiff, the termination must reflect the merits of
the action and the plaintiff’s innocence of the misconduct alleged in the
lawsuit. [Citation.] ‘“The theory underlying the requirement of favorable
termination is that it tends to indicate the innocence of the accused, and
coupled with the other elements of lack of probable cause and malice,
establishes the tort [of malicious prosecution].”‘ [Citation.] Where a
proceeding is terminated other than on the merits, the reasons underlying the
termination must be examined to see if the termination reflects the opinion of
either the court or the prosecuting party that the action would not succeed.
[Citation.]
Dalany v. American Pacific Holding Corp. (1996) 42 Cal.App.4th 822, 827, emphasis
added.
As noted above, the Matson’s dismissal from the Wrongful Foreclosure Action
was achieved through a demurrer that was sustained by the Court. No fact-finder heard
_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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the evidence and dismissed the Matsons on the merits (or lack thereof) of the causes of
action in the Wrongful Foreclosure Action.
Apparently aware of this, the Matsons only make two obvious references to
favorable termination: (a) “The MATSONS’ demurrer was sustained on October 7,
2011 and the MATSONS were dismissed from the lawsuit” (Complaint, ¶11); and (b)
“The lawsuit was dismissed in the MATSON’S favor” (Complaint, ¶ 19). They make no
effort to plead facts that would establish that the termination “reflect[s] the merits of the
action and the plaintiff’s innocence of the misconduct alleged . . . .”
This is entirely insufficient to establish a favorable termination of the Wrongful
Foreclosure Action for the Matsons; they have failed to adequately plead the fourth
element of a malicious prosecution claim.
4. The Matsons have not established that they suffered actual damages
The only references in the Matson’s Complaint to damages proximately caused
by the alleged malicious prosecution are the following: that naming the Matsons as
defendants in the Wrongful Foreclosure Action “subjected the MATSONS to the stress,
fright and expense of being personally sued” (Complaint, ¶ 14) and the (again)
boilerplate claim that “[t]he MATSONS were harmed by the VOHARIWATT’S lawsuit
(Complaint, ¶ 22). But there are no facts alleged to support anything more than mild
anxiety resulting from being a party to litigation. There is no reference to a need for
medical intervention or treatment, or any claim of financial loss resulting from the
alleged malicious prosecution.
The Matsons have failed to establish the fifth and final element of their malicious
prosecution claim. Given that they succeeded in establishing only the first element out of
the five required to survive a demurrer, the Vohariwatts respectfully request that the
Court dismiss this claim, and do so with prejudice, given that the Matsons have
sufficiently pleaded only one of five elements necessary to establish a malicious
prosecution claim.
In light of this, Plaintiffs contend that the defects in the cause of action cannot be
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NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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cured by amendment, and request that the malicious prosecution claim be dismissed
with prejudice.
B. Plaintiffs Have Not Stated a Claim for Conversion
To plead a cause of action for conversion, a plaintiff must allege (1) plaintiffs’
ownership or right to possession of the property at the time of the conversion; (2)
defendants’ conversion by a wrongful act or disposition of plaintiffs’ property rights; and
(3) damages. See 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 565, pp. 2203-
2204.
In paragraph 25 of the Complaint, the Matsons cite paragraph 46 of the SAC in
support of their claim for conversion: “The rent was prepaid to March 20, 2011.
Together with the deposit, the tenant was entitled to stay in [the Property] until June 20
[2011].” Since the Matsons state in paragraph 5 of the Complaint that the tenants told
them that the Vohariwatts had collected one year of rent in advance, it is reasonable to
assume, based on the allegations in the Matson’s Complaint, that the purported
“conversion” took place in or around March 2010 when the Vohariwatts received the
advance payment of one year’s rent.
However, this would mean that the Matsons had no ownership or right to
possession of the Property at the time of the alleged “conversion”; they claim to have
acquired the Property on February 3, 2011 (Complaint, ¶ 26). Therefore, the facts
alleged by the Matsons serve only to show that they had no “ownership or right to
possession of the property at the time of the conversion.” Accordingly, they have failed
to plead the first element of conversion.
By that same token, the Matsons have failed to plead that the Vohariwatts
engaged in conversion by committing a wrongful act or disposition of the Matson’s
property (the second element of conversion). According to the Matson’s factual
allegations, they had no ownership or right to possession of the Property until February
3, 2011, when they claim to have acquired the Property. That was, according to the
allegations in the Complaint, approximately a year after the Vohariwatts received the
_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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advance rent payment. Thus the Matsons have failed to establish the second element of a
cause of action for conversion.
Given the failure to establish the first two elements of a cause of action for
conversion, there is no need for an analysis of damages, the third element. The
Vohariwatts respectfully request that the Court dismiss this cause of action for
conversion, and that it do so with prejudice, given that the Matsons have, in contrast to
the cause of action for malicious prosecution, pleaded facts - very specific facts - that
defeat this cause of action. Accordingly, it cannot be cured by amendment.
C. Plaintiffs Have Not Stated a Claim for Intrusion Into Private Affairs
The Matsons have asserted a claim for intrusion into private affairs based on their
allegation that Mrs. Vohariwatt “read Keith Matson’s personal financial information out
loud to the court” (Complaint, ¶ 15). They plead this as evidence that Mrs. Vohariwatt
“penetrated some zone of physical or sensory privacy surrounding, or obtained
unwanted access to data about,” Mr. Matson. See Complaint, ¶ 33, quoting Sanders v.
American Broadcasting Co. (1999) 20 Cal. 4th 907, 914-915.
However, the Matsons admit that “[h]ow she acquired this information is
inexplicable . . . .”; it cannot be known. Therefore, by their own pleading, the Matsons
have conceded that they cannot show that Mrs. Vohariwatt committed any affirmative
wrongful act by which she was exposed to the information read to the Court. They
cannot even show that she actively “obtained” the information. Therefore this cause of
action fails on the basis of the facts as pleaded.
As for the fact that Mrs. Vohariwatt read the information in open Court, the
Matsons have not pleaded any exception to California’s litigation privilege as set forth in
Cal. Civ. Code § 47. Thus, the privilege would bar any possible liability arising from that
act.
Since the Matsons have admitted that they cannot explain how the information
came to Mrs. Vohariwatt’s attention, and they have not pleaded a viable exception to the
litigation privilege, the Vohariwatts respectfully request that this cause of action also be
_________________________________________________________________________________________________
NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL
VOHARIWATT TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Case No. 37-2011-00100977-CU-NP-CTL
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dismissed, and that it be dismissed with prejudice, as the above demonstrates that the
defective pleading cannot be cured by amendment.
D. Plaintiffs Have Not Stated a Claim for Unjust Enrichment
In California, “[t]here is no cause of action for unjust enrichment. Rather, unjust
enrichment is a basis for obtaining restitution based on quasi-contract or imposition of a
constructive trust. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, §§ 1015,
1016, pp. 1104-1105.)” McKell v. Washington Mut., Inc. (2006) 49 Cal. Rptr. 3d 227, 254.
The Matsons have not pleaded a cause of action for restitution based on quasi-
contract or imposition of a constructive trust, so this “cause of action” also should be
dismissed. They cannot readily cure this aspect of the Complaint in light of other facts
alleged therein, so the Vohariwatts respectfully request that the purported unjust
enrichment cause of action be dismissed with prejudice.
V. CONCLUSION
Based on the foregoing arguments and authorities, Defendants respectfully
request that the demurrer be sustained and the Complaint be dismissed with prejudice.
Respectfully submitted,



Dated: Thursday, January 19, 2012.
HEWELL LAW FIRM


By: ___________________
Harold M. Hewell
Attorney for Plaintiffs





(VIA FAX/ELECTRONIC TRANSMISSION)

By: ___________________ (VIA FAX/ELECTRONIC TRANSMISSION) Harold M. and hereby do. San Diego. and such further and other matters as the Court may allow. the Demurrer and Memorandum of Points and Authorities attached hereto. the file and record in this action. located at 330 West Broadway. on April 20. counsel may be heard in Department C-66 of the above-captioned Court. The demurrer will be based upon this notice. the Hon. January 19.. Respectfully submitted. HEWELL LAW FIRM Dated: Thursday. Pressman presiding. at 10:30 a. demur to the Complaint filed in this action by Plaintiffs Joanne Matson and Keith Matson (“Plaintiffs”). 2012. MEMORANDUM OF POINTS AND AUTHORITIES Case No. Hewell Attorney for Plaintiffs _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT. 37-2011-00100977-CU-NP-CTL Page 1 of . 92101. 2012. the Request for Judicial filed concurrently herewith. Joel M. California.m.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT AND TO ALL PARTIES HEREIN: PLEASE TAKE NOTICE that. Defendants Janet Vohariwatt and Paul Vohariwatt (“Defendants”) will.

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By: ___________________ (VIA FAX/ELECTRONIC TRANSMISSION) Harold M. 2012. 37-2011-00100977-CU-NP-CTL Page of . HEWELL LAW FIRM 7KH )RXUWK &DXVH RI $FWLRQ IRU XQMXVW HQULFKPHQW IDLOV WR VWDWH IDFWV † VXIILFLHQW WR FRQVWLWXWH D FDXVH RI DFWLRQ IRU FRQYHUVLRQ &DO &LY 3URF &RGH 7KH 6HFRQG &DXVH RI $FWLRQ IRU FR QYHUVLRQ IDLOV WR VWDWH IDFWV VXIILFLHQW WR FRQVWLWXWH D FDXVH RI DFWLRQ IRU FRQYHUVLRQ &DO &LY 3URF &RGH † Dated: Thursday. Respectfully submitted. MEMORANDUM OF POINTS AND AUTHORITIES Case No. January 19. Hewell Attorney for Plaintiffs _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT.

...................................................... The Matsons have not established that they suffered actual damages..... MEMORANDUM OF POINTS AND AUTHORITIES Case No..................................................................... Plaintiffs have not stated a claim for conversion................ The Matsons have not established that the Vohariwatts lacked probable cause................................................................. 12 V...................................................................................................................... 4............................... 1 II........................................................ 3............... 12 8 7 _______________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT.. Plaintiffs have not stated a claim for intrusion into private affairs.................. Conclusion........................................................................................... 5 A.................................................................................................. 9 B................... 2 III..... 10 C...................................................................................................Page i of iii ......................... Legal standard............... Introduction............................... The Matsons have not established a basis for the element of “malice”............................... 11 D........................................................................................1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I............................. Facts as alleged in the Matson action............. Argument...... 5 2.............................................. The Matsons have not established that the wrongful foreclosure action terminated favorably for them............................ Plaintiffs have not stated a claim for unjust enrichment........................................ 5 1. 37-2011-00100977-CU-NP-CTL Tables ...... 4 IV.................................................... Plaintiffs have not stated a claim for malicious institution of civil proceedings....................

........... 8 Drummond v.... 37-2011-00100977-CU-NP-CTL Tables ............. (2006) 49 Cal..................... Rptr........................................... App........... 3d 227................... 7 Joslin v................................................................................................ Lyons (2001) 89 Cal.. (1996) 42 Cal.........A................. 4th 156........ 4 Sanders v......................................................................... App.. 3d 369............ Desmarais (2009) 176 Cal............... Ins.............................. Inc.. App......................... Brokerage (1986) 184 Cal........................ 4th 439. 5 _______________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT..................... Washington Mut............ 5...... (1966) 45 Cal... v.................. 4th 907........................................................... Fleming Cos................. American Pacific Holding Corp.. App...... 4th 371.......................... Pearsoll (2010) 186 Cal......................S... 3d 584............. American Broadcasting Co........ Nichols (2008) 168 Cal.............. Kirwan (1985) 39 Cal..1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES California Cases: Blank v......... App. 5 Serrano v.. (1999) 20 Cal................................ 4th 822........... App................... 4 McKell v....... H....... 4 Skrbina v.......... MEMORANDUM OF POINTS AND AUTHORITIES Case No... App....... 3d 311. 5 Dalany v...... 4 Quick v...... 11 Videotape Plus..................................... 4th 1353. Inc.......... 12 Paiva v. 4th 1007........... Priest (1971) 5 Cal........................Page ii of iii .

...... § 565 ...............1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Statutes: Civil Code § 47..................................................... 3 Treatises: 1 Witkin.............50(a)................ Procedure (2d ed........................ 2005) Contracts............................ 4 Code of Civil Procedure § 430.............................. 1971) Pleading......Page iii of iii .............. 10 _______________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT........ 2 Code of Civil Procedure § 430..................................... MEMORANDUM OF POINTS AND AUTHORITIES Case No.........................................................10(e)..................30(a)..... Law (10th ed....... 2..................... 11 Civil Code § 2323................................... 4 Code of Civil Procedure § 430....................... Cal........... 12 3 Witkin....... 37-2011-00100977-CU-NP-CTL Tables ................................... Summary of Cal......................

the Vohariwatts filed a first amended complaint in which Keith Matson and Joanne Matson.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. which is pending before the Honorable Gonzalo Curiel in Department C-60 of this Court. On March 30. According to that document. alleged various causes of action against Washington Mutual Bank and California Reconveyance Company. The original complaint filed by the Vohariwatts. Superior Court of California. Subsequent to a hearing on a demurrer to the first amended complaint. The claims were based on the Vohariwatts’ contention that property they owned at 31 Sandpiper Strand. a Trustee’s Deed Upon Sale was recorded in the official records of the of the Recorder’s Office of San Diego County as Document No. 2011 pursuant to an order by the Honorable Lisa Foster following a hearing on a demurrer to the second amended complaint. Case No.A. California 92118 (“Property”) had been wrongfully foreclosed upon and sold at trustee’s sale on February 3. 20110084843. 2011. in addition to Washington Mutual Bank and California Reconveyance Company. Washington Mutual Bank. Joanne Matson. MEMORANDUM OF POINTS AND AUTHORITIES Case No. _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT. On February 14. and JP Morgan Chase Bank. 37-2011-00085937-CU-OR-CTL (“Wrongful Foreclosure Action”). the purchasers of the Property and the plaintiffs in the above-captioned action (“Matson Action”). 37-2011-00100977-CU-NP-CTL Page 1 of 12 . who have been representing themselves in that matter. Keith Matson and Joanne Matson were dismissed with prejudice from the Wrongful Foreclosure Action on October 7. Washington Mutual Bank.150. the Vohariwatts filed an action styled as Paul Vohariwatt vs. the Vohariwatts filed a second amended complaint in which they named five defendants: California Reconveyance Company. were added as named defendants. County of San Diego. N. 2011.000. 2011. INTRODUCTION On February 15. 2011.00 at the trustee’s sale by “KEITH & JOANNE MATSON HUSBAND AND WIFE AS JOING [sic] TENANTS”. Keith Matson. the Property had been purchased for $1. Coronado.

On February 15. Civ. and a Notice of Trustee’s Sale on October 7. The Complaint states that the Vohariwatts received a Notice of Default for the Property on July 6. The Complaint further states that the Matsons went to the Property after purchasing it and found that a family was living as tenants in the home that was part of the Property. Complaint.00. Vohariwatt at the hearing on the demurrer and related events. and that the Complaint be dismissed with prejudice in its entirety on the ground that the defects in pleading cannot be cured by amendment. who had collected one year of rent in advance based upon a monthly lease payment of $5.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Complaint in the Matson Action arises from allegations made against the Matsons in the second amended complaint from the Wrongful Foreclosure Action.1 conversion. asserting causes of action that included wrongful foreclosure and quiet title. the Matsons purchased the Property owned by the Vohariwatts on February 3.10(e). the Vohariwatts filed the Wrongful Foreclosure Action against Washington Mutual Bank and California Reconveyance Company. Plaintiffs therefore bring this demurrer pursuant to Cal. statements made in open court by Mrs. Code § 2923. ¶¶ 5-6. this cause of action will be referred to throughout this demurrer as “malicious prosecution. in pleading their Complaint. FACTS AS ALLEGED IN THE MATSON ACTION According to the Complaint in the Matson Action. MEMORANDUM OF POINTS AND AUTHORITIES Case No.000. 2010. II. Code § 430. Complaint. 2011 at a trustee’s sale alleged in the Complaint to have been conducted pursuant to Cal. 2011. intrusion into private affairs or unjust enrichment. Plaintiffs respectfully contend that the demurrer should be sustained as to the whole Complaint. The Vohariwatts For the sake of clarity and simplicity. ¶¶ 3-4. However. Proc. and that they were told by the tenants that they leased it from the Vohariwatts. the Matsons have failed to state facts sufficient to support any cause of action alleged therein: malicious institution of civil proceedings.” even though it is out of favor with some courts because of its descriptive inadequacy. Civ. 2010. _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT. 37-2011-00100977-CU-NP-CTL Page 2 of 12 1 .

2011. retained the defendants named in the first amended complaint and added JP Morgan Chase Bank. the VOHARIWATTS were simply indifferent to the fact _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT. without stating any facts to support the allegation. p.” Complaint. 2011. 37-2011-00100977-CU-NP-CTL Page 3 of 12 . 21. The verified second amended complaint (“SAC”). The Complaint admits that the Matsons do not know the motive behind the Vohariwatts’ decision to name them as defendants in the Wrongful Foreclosure Action.” Complaint.” Building on this presumption. as an additional defendant. 2011. “presumably it was retribution towards the people who purchased their old home. but goes on to speculates that. the Vohariwatts amended the complaint again. The Matsons had been added to the first amended complaint as defendants.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amended the complaint on March 30. that “[a]t the least. ¶¶10-11.A. The SAC contained an allegation that: “The Matsons have been in contact with [California Reconveyance Company] prior to the trustee sale auction. On September 22. 2011 with a verified complaint that also alleged causes of action for wrongful foreclosure and quiet title. ¶ 12. Complaint. ¶ 39. On September 6. SAC. MEMORANDUM OF POINTS AND AUTHORITIES Case No. ¶ 13. the Court joined the Matsons with California Reconveyance Company in a demurrer which was sustained on October 7. fright and expense of being personally sued” and adds. a copy of which is attached as an exhibit to the Matson’s Complaint. N. the Matsons were dismissed from Wrongful Foreclosure Action. and that this “idea was baseless.” It further states that: “No reasonable person in the VOHARIWATTS’ circumstances would have believed this without some tangible supporting evidence” and that the “sole purpose of the allegation was to prop up the VOHARIWATTS’ lawsuit against the MATSONS. Plaintiffs have learned further that The [sic] Matsons were also there to ‘beg’ [California Reconveyance Company] to sell the property to them. The Complaint then alleges that the foregoing allegation from the SAC evidences “the insinuation that permeates the SAC in that the MATSONS used illicit insider knowledge to collude with California Reconveyance Company and JP Morgan Chase to acquire” the Property. ¶¶ 7-9. the Complaint further alleges that this “strategy was effective in that it subjected the MATSONS to the stress. Complaint.

The factual allegations in the Complaint conclude with the claim that at the hearing on the demurrer.S.” Id. 4th 371. 4th 1353. She read Keith Matson’s personal financial information out loud to the court. Pearsoll (2010) 186 Cal. material facts alleged in the complaint are treated as true. App. 1364. III. the Court need not accept factual allegations contradicted by matters of public record or other judicially noticeable facts. Complaint. Proc. ¶ 15. Serrano v.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that their claim against the MATSONS was unfounded.50(a). LEGAL STANDARD A complaint is subject to a demurrer if it fails to “state facts sufficient to constitute a cause of action. the Court looks to the face of the complaint. the suit was brought for an improper purpose. For the purpose of ruling on a demurrer. ¶ 14. App. and upon matters of which the Court may take judicial notice.” The Complaint continues to build on the admittedly presumed motive of “retribution” by stating that: “Regardless. Civ. Skrbina v. Code § 430. H.” Cal. Vohariwatt: presented what she considered “proof” of the MATSONS’ collusion with the co-defendants.10(e). Priest (1971) 5 Cal. Code § 430. Ins. This included information about his credit cards and a personal bank account that he held with JP Morgan & Co.A. deductions or conclusions of fact or law. Cal Civ. 3d 369. 37-2011-00100977-CU-NP-CTL Page 4 of 12 . 374-75. Fleming Cos. in the 1990s (prior to its merger with Chase Manhattan Bank in 2000 and Washington Mutual in 2008). the exhibits attached to the complaint. Ms. Civ. App. MEMORANDUM OF POINTS AND AUTHORITIES Case No. (1966) 45 Cal. Joslin v. Brokerage (1986) 184 Cal. Pro.” Complaint. Quick v.30(a). Code § 430. A demurrer must be sustained without leave to amend absent a showing by _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT. Moreover. When ruling on a demurrer. 3d 584. Cal. How she acquired this information is inexplicable and is deeply disturbing to the MATSONS. The Court need not accept “contentions. 591. A demurrer may be taken to the whole complaint or to any of the causes of action stated therein.

Kirwan (1985) 39 Cal.. 21. Plaintiffs Have Not Stated a Claim for Malicious Institution of Civil Proceedings The elements of a cause of action for malicious prosecution are: “(a) the institution of an action at the direction of the defendant . ARGUMENT A. App. and (e) resulting damage.App.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff that a reasonable possibility exists that the defect can be cured by amendment.”’ (Paiva v. SAC. As noted above. 161 [107 Cal. .4th 156. 3d 311. 4th 439. 1019 [85 Cal. Lyons (2001) 89 Cal. (b) without probable cause and (c) with malice. The Matsons have not established that the Vohariwatts lacked probable cause “‘Probable cause exists when a cause of action is. 37-2011-00100977-CU-NP-CTL Page 5 of 12 . the Matsons have utterly failed to sufficiently plead the other elements of this cause of action.2d 1].Rptr. 176 Cal.]’ (Videotape Plus. Desmarais.3d 838]... The Matson’s only apparent attempt to establish lack of probable cause by the Vohariwatts is the SAC excerpt found in paragraph 12 of the Matson Complaint: “The Matsons have been in contact with [California Reconveyance Company] prior to the trustee sale auction. so it is clear that their lawsuit was initiated by them and has been prosecuted by them to date. .” Id. Desmarais (2009) 176 Cal. [Citations. ¶ _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT. IV. (d) termination of the initial action favorably to the plaintiff .)’” Drummond v. Inc.4th 1007. 453. p. However. . Blank v. 4th 439. Drummond goes on to note that the existence of probable cause is determined under an objective standard “applied to the facts upon which the defendant acted in prosecuting the prior case. MEMORANDUM OF POINTS AND AUTHORITIES Case No. supra. 449. Nichols (2008) 168 Cal.) The claim need not be meritorious in fact. Plaintiffs have learned further that The [sic] Matsons were also there to ‘beg’ [California Reconveyance Company] to sell the property to them.App. legally tenable. App.. The first element is not disputed. 318. but only “`arguably tenable . v. the Vohariwatts are not represented by counsel in the Wrongful Foreclosure Action.Rptr.” Drummond v. objectively speaking.. original italics (Paiva). 1.

¶ 13) is meaningless. it is ironic that the Matsons would even allege that “No reasonable person in the VOHARIWATTS’ circumstances would have believed this without some tangible supporting evidence. . MEMORANDUM OF POINTS AND AUTHORITIES Case No.” (Emphasis added. the failure to plead any factual allegations to refute the excerpt speaks volumes. 37-2011-00100977-CU-NP-CTL Page 6 of 12 3 2 .” The truth or falsity of this particular allegation from the SAC is within the Matson’s personal knowledge.2 Given the lack of factual allegations refuting the excerpt from the SAC. The Matsons make no effort to explain what they mean when they refer (twice) to a “reasonable person in the VOHARIWATTS’ circumstances .) That is just what the Matsons are doing: they are asking the Court to believe that the excerpt from the SAC is “baseless” without providing “some tangible supporting evidence. . No reasonable person in the VOHARIWATTS’ circumstances would have believed this without some tangible supporting evidence. ¶ 13. the Vohariwatts never had an opportunity to present evidence that might have supported this allegation. It is critical to note throughout this discussion that the Matsons were dismissed from the Wrongful Foreclosure Action after the Court sustained the demurrer. The allegations in the Complaint that “[n]o reasonable person in the VOHARIWATTS’ circumstances would have believed this [the allegations in the excerpt from the SAC] without some tangible supporting evidence” (Complaint.” Complaint. the Matsons offer no facts to refute this allegation.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39. They just deny it and make unsupported and conclusory assertions: “This idea was baseless. .” thereby rendering this allegation meaningless. Additionally. and the Matsons make little effort to engage in any factually-driven pleading in the subject Complaint. as the Matsons were dismissed from the Wrongful Foreclosure Action on a sustained demurrer. ¶ 20) is completely absent of any supporting facts to support this conclusory allegation. There were no findings of fact in the underlying case.” However. the allegation that “No reasonable person in the VOHARIWATTS’ circumstances3 would have believed that there were reasonable grounds to bring the lawsuit against the MATSONS” (Complaint. _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT.

without any factual claims to support the allegations. (c) treating that speculative motive as established fact (the “strategy was effective”).” _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT.” Id. At the least. 2. the Matsons go from (a) an admission that they do not know the Vohariwatt’s motivation for suing them.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Even the actual cause of action fails to plead facts in support of the claim that the SAC excerpt is “baseless. the polar opposite of malice.” These fact-free assertions establish nothing but the Matson’s predilection for conclusory contentions of purported “fact. . In one paragraph. The Matsons then take that sliver of pure speculation and plead it forward as if it was grounded in factual allegations: “The VOHARIWATTS’ strategy was effective in that it subjected the MATSONS to the stress. The Matsons have not established a basis for the element of “malice” Given the essential role of the malice element in a malicious prosecution claim. the cause of action is little more than a collection of case law and short boilerplate allegations devoid of supporting facts. the suit was brought for an improper purpose. 37-2011-00100977-CU-NP-CTL Page 7 of 12 . thereby undermining the malice element completely.) The Matsons then have the audacity to state. Complaint. it is nothing more than unsupported conclusions of fact or law.” Instead. it is astounding that the Matsons plainly admit that they have no idea what prompted the Vohariwatts to sue them: “The VOHARIWATTS’ motive in filing the lawsuit is currently unknown . that it is a “fact that their claim against the MATSONS was unfounded” and that “[r]egardless. . ¶ 14. The Matsons have utterly failed to plead sufficient facts to establish this second element of the malicious prosecution claim as set forth above in Drummond. ¶ 14. However that does not prevent them from speculating that the filing was motivated by “retribution” because the Matsons purportedly acquired the Vohariwatt’s Property. fright and expense of being personally sued. the VOHARIWATTS were simply indifferent to the fact that their claim against the MATSONS was unfounded. Id. and (d) asserting a backup motive of indifference. (Emphasis added. . to (b) making a motive up (“retribution”). MEMORANDUM OF POINTS AND AUTHORITIES Case No.” Complaint.

¶ 21. [Citation. the Matson’s dismissal from the Wrongful Foreclosure Action was achieved through a demurrer that was sustained by the Court.App. No fact-finder heard _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT. 3. 827.] Where a proceeding is terminated other than on the merits. the termination must reflect the merits of the action and the plaintiff’s innocence of the misconduct alleged in the lawsuit. The Matsons have failed to establish malice.4th 822.” Complaint. As noted above. emphasis added. All the case law cited in the pleading of the cause of action cannot rectify that.”‘ [Citation. establishes the tort [of malicious prosecution]. MEMORANDUM OF POINTS AND AUTHORITIES Case No. American Pacific Holding Corp.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The only fact that arises out of these allegations is that the Matsons have absolutely and completely failed to establish the element of malice (they even admit they don’t know the motive for the lawsuit against them).] ‘“The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused. the reasons underlying the termination must be examined to see if the termination reflects the opinion of either the court or the prosecuting party that the action would not succeed. and coupled with the other elements of lack of probable cause and malice.] Dalany v. Neither do boilerplate statements such as “The VOHARIWATTS initiated the lawsuit with malice. In order for the termination of a lawsuit to be considered favorable to the malicious prosecution plaintiff. (1996) 42 Cal. [Citation. defining malice does not establish it. the third element of a malicious prosecution claim. The Matsons have not established that the Wrongful Foreclosure Action terminated favorably for them The Matsons have not pleaded sufficient facts to establish that the underlying case was “legally terminated in their favor” as this concept is understood in the context of a malicious prosecution claim. 37-2011-00100977-CU-NP-CTL Page 8 of 12 .

. Plaintiffs contend that the defects in the cause of action cannot be _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the evidence and dismissed the Matsons on the merits (or lack thereof) of the causes of action in the Wrongful Foreclosure Action. MEMORANDUM OF POINTS AND AUTHORITIES Case No. 37-2011-00100977-CU-NP-CTL Page 9 of 12 . and do so with prejudice. ¶ 14) and the (again) boilerplate claim that “[t]he MATSONS were harmed by the VOHARIWATT’S lawsuit (Complaint. and (b) “The lawsuit was dismissed in the MATSON’S favor” (Complaint. The Matsons have not established that they suffered actual damages The only references in the Matson’s Complaint to damages proximately caused by the alleged malicious prosecution are the following: that naming the Matsons as defendants in the Wrongful Foreclosure Action “subjected the MATSONS to the stress. the Matsons only make two obvious references to favorable termination: (a) “The MATSONS’ demurrer was sustained on October 7. the Vohariwatts respectfully request that the Court dismiss this claim. ¶11). or any claim of financial loss resulting from the alleged malicious prosecution. . The Matsons have failed to establish the fifth and final element of their malicious prosecution claim.” This is entirely insufficient to establish a favorable termination of the Wrongful Foreclosure Action for the Matsons. they have failed to adequately plead the fourth element of a malicious prosecution claim. 4. Given that they succeeded in establishing only the first element out of the five required to survive a demurrer. In light of this. They make no effort to plead facts that would establish that the termination “reflect[s] the merits of the action and the plaintiff’s innocence of the misconduct alleged . . ¶ 22). fright and expense of being personally sued” (Complaint. ¶ 19). given that the Matsons have sufficiently pleaded only one of five elements necessary to establish a malicious prosecution claim. Apparently aware of this. 2011 and the MATSONS were dismissed from the lawsuit” (Complaint. There is no reference to a need for medical intervention or treatment. But there are no facts alleged to support anything more than mild anxiety resulting from being a party to litigation.

B.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cured by amendment. based on the allegations in the Matson’s Complaint. By that same token. when they claim to have acquired the Property. That was. they have failed to plead the first element of conversion. Cal. it is reasonable to assume. (2) defendants’ conversion by a wrongful act or disposition of plaintiffs’ property rights. they had no ownership or right to possession of the Property until February 3. 2011. pp.” Accordingly. the facts alleged by the Matsons serve only to show that they had no “ownership or right to possession of the property at the time of the conversion. according to the allegations in the Complaint. 2011 (Complaint. Together with the deposit. the tenant was entitled to stay in [the Property] until June 20 [2011]. the Matsons have failed to plead that the Vohariwatts engaged in conversion by committing a wrongful act or disposition of the Matson’s property (the second element of conversion). that the purported “conversion” took place in or around March 2010 when the Vohariwatts received the advance payment of one year’s rent. they claim to have acquired the Property on February 3. the Matsons cite paragraph 46 of the SAC in support of their claim for conversion: “The rent was prepaid to March 20. this would mean that the Matsons had no ownership or right to possession of the Property at the time of the alleged “conversion”. In paragraph 25 of the Complaint. See 3 Witkin. Procedure (2d ed. Plaintiffs Have Not Stated a Claim for Conversion To plead a cause of action for conversion. Therefore.” Since the Matsons state in paragraph 5 of the Complaint that the tenants told them that the Vohariwatts had collected one year of rent in advance. ¶ 26). 37-2011-00100977-CU-NP-CTL Page 10 of 12 . 22032204. MEMORANDUM OF POINTS AND AUTHORITIES Case No. § 565. and (3) damages. However. According to the Matson’s factual allegations. a plaintiff must allege (1) plaintiffs’ ownership or right to possession of the property at the time of the conversion. approximately a year after the Vohariwatts received the _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT. 2011. and request that the malicious prosecution claim be dismissed with prejudice. 1971) Pleading.

the Vohariwatts respectfully request that this cause of action also be _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT. Thus the Matsons have failed to establish the second element of a cause of action for conversion. The Vohariwatts respectfully request that the Court dismiss this cause of action for conversion. . by their own pleading. or obtained unwanted access to data about. the Matsons have conceded that they cannot show that Mrs. Vohariwatt “read Keith Matson’s personal financial information out loud to the court” (Complaint. ¶ 33.very specific facts . However. the privilege would bar any possible liability arising from that act. See Complaint. Civ. MEMORANDUM OF POINTS AND AUTHORITIES Case No. pleaded facts . American Broadcasting Co. 4th 907. They cannot even show that she actively “obtained” the information. Vohariwatt committed any affirmative wrongful act by which she was exposed to the information read to the Court. They plead this as evidence that Mrs.” Mr. the third element. Since the Matsons have admitted that they cannot explain how the information came to Mrs. there is no need for an analysis of damages. quoting Sanders v. it cannot be cured by amendment. Vohariwatt read the information in open Court. Vohariwatt “penetrated some zone of physical or sensory privacy surrounding. the Matsons have not pleaded any exception to California’s litigation privilege as set forth in Cal. . Accordingly. Plaintiffs Have Not Stated a Claim for Intrusion Into Private Affairs The Matsons have asserted a claim for intrusion into private affairs based on their allegation that Mrs. 37-2011-00100977-CU-NP-CTL Page 11 of 12 .”. Code § 47. ¶ 15). and that it do so with prejudice.that defeat this cause of action. (1999) 20 Cal.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 advance rent payment. Therefore. Therefore this cause of action fails on the basis of the facts as pleaded. Vohariwatt’s attention. . C. it cannot be known. given that the Matsons have. Matson. As for the fact that Mrs. Given the failure to establish the first two elements of a cause of action for conversion. the Matsons admit that “[h]ow she acquired this information is inexplicable . Thus. in contrast to the cause of action for malicious prosecution. 914-915. and they have not pleaded a viable exception to the litigation privilege.

Inc. The Matsons have not pleaded a cause of action for restitution based on quasicontract or imposition of a constructive trust. 2005) Contracts. They cannot readily cure this aspect of the Complaint in light of other facts alleged therein. 254. Plaintiffs Have Not Stated a Claim for Unjust Enrichment In California. pp. V. D. 2012.)” McKell v. Defendants respectfully request that the demurrer be sustained and the Complaint be dismissed with prejudice. 1104-1105. so the Vohariwatts respectfully request that the purported unjust enrichment cause of action be dismissed with prejudice. Rptr.1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dismissed. (2006) 49 Cal. as the above demonstrates that the defective pleading cannot be cured by amendment.. Hewell Attorney for Plaintiffs _________________________________________________________________________________________________ NOTICE OF DEMURRER AND DEMURRER BY DEFENDANTS JANET VOHARIWATT AND PAUL VOHARIWATT TO COMPLAINT. CONCLUSION Based on the foregoing arguments and authorities. January 19. and that it be dismissed with prejudice. (1 Witkin. Summary of Cal. Law (10th ed. MEMORANDUM OF POINTS AND AUTHORITIES Case No. Respectfully submitted. 3d 227. “[t]here is no cause of action for unjust enrichment. Rather. 1016. By: ___________________ (VIA FAX/ELECTRONIC TRANSMISSION) Harold M. Washington Mut. 37-2011-00100977-CU-NP-CTL Page 12 of 12 . §§ 1015. so this “cause of action” also should be dismissed. unjust enrichment is a basis for obtaining restitution based on quasi-contract or imposition of a constructive trust. HEWELL LAW FIRM Dated: Thursday.

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