You are on page 1of 8

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

LEVI REUBEN UKU CSB NO: 196406 LAW OFFICES OF LEVI REUBEN UKU 3540 WILSHIRE BLVD., SUITE 626 LOS ANGELES, CALIFORNIA 90010 Phone: (213) 385-0193 Attorney for Plaintiff, Prudence Waltz

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CENTRAL DISTRICT Case No.: BC 374163 [Assigned to the Hon. Aurelio Monoz] PLAINTIFF PRUDENCE WALTZ OPPOSITION TO DEFENDANT HARTFORD FIRE INSURANCE DEMURRER TO PLAINTIFF COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITHIES; IN SUPPORT THEREOFF. Date: Time: Dept: MARCH 20, 2008 08:30 a.m. 47 ]

Prudence Waltz, an individual; Plaintiff, vs. Blue Ocean Mortgage et al., Defendants.

[Complaint Filed

1TO

THE COURT, DEFENDANTS AND TO THEIR ATTORNEYS OF RECORD

HEREIN: Plaintiff, PRUDENEC WALTZ, by and through her attorney of record, Levi Reuben Uku hereby submits the following opposition to Defendants Demurrer to the Complaint.

______________________________________________________________________________________ PLAINTIFFS OPPOSITION page: 1 Levi R. UKU, Esq. TO DEMURRER Law Offices Of Levi R. Uku 3540 Wilshire Blvd., Suite 626 LOS ANGELES, CALIFORNIA 90010 (213) 385-0193

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

This opposition is based on the grounds that the complaint and each and every cause of action therein states sufficient facts to constitute the causes of action. Plaintiff respectfully request that Defendants Demurrer be overruled in its entirety. Alternatively, if this Court deems that there are deficiencies in the Complaint then Plaintiff respectfully requests leave to amend.
1This

opposition is based on the memorandum of points and authorities, the

pleadings, and any other oral and documentary evidence that may be presented at the time of the hearing of this motion.

LAW OFFICES OF LEVI REUBEN UKU

Dated: March 9, 2008

By:___________________________ LEVI REUBEN, ESQ. Attorney for Plaintiff Prudence Waltz

______________________________________________________________________________________ PLAINTIFFS OPPOSITION page: 2 Levi R. UKU, Esq. TO DEMURRER Law Offices Of Levi R. Uku 3540 Wilshire Blvd., Suite 626 LOS ANGELES, CALIFORNIA 90010 (213) 385-0193

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 ______________________________________________________________________________________ PLAINTIFFS OPPOSITION page: 3 Levi R. UKU, Esq. TO DEMURRER Law Offices Of Levi R. Uku 3540 Wilshire Blvd., Suite 626 LOS ANGELES, CALIFORNIA 90010 (213) 385-0193

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION Plaintiffs complaint for damages contains 15 causes of action, among which are causes of action for Fraud and Deceit; Negligent Misrepresentation, Breach of Fiduciary Duties and for Intentional Infliction of Emotional Distress, Negligence, Negligence, Notary Public Official Misconduct etc. The Demurrer is challenging all fifteen causes of action of the complaint on the ground that each cause of action fails to state facts sufficient to constitute a cause of action pursuant to Cal. Civ. Proc. Code 430.10(e)(f)

II BRIEF STATEMENT OF FACTS Plaintiff is a single mother who lost her real property to some unscrupulous Real Estate Agents and Brokers and other individuals, who forged her signature and the signatures others on grant deeds and other real property transfer documents that purportedly transferred ownership of Plaintiffs residence to third parties, thereby dispossessed Plaintiff of her real property. The Notary publics which included Mr. Evans, purportedly witnessed the execution of the grant deeds, used by the remaining defendants to skim out Plaintiffs equity from Plaintiffs residence. Samantha Hill recently executed an affidavit indicating that she never bought the subject property from the Plaintiff. Hill states further in her affidavit that she did not appear before Mr. Evans to notarize the second grant deed that purported transferred her alleged interest in the subject property to Jonelle Baired at any time. That indeed, she never met with Ms. Waltz, never signed Mr. Evans notary book neither

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

did she placed her thumb print on Mr. Evans notary book regarding the instant transaction. For the purposes of brevity and clarity, Plaintiff Waltz is hereby unopposed the Hartfords demurrer to the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eight, Ninth, and Eleventh Causes of Action. But, opposes the demurrer to the remaining causes of action.

II. THE GENERAL DEMURRER SHOULD BE OVERRULED BECAUSE THE COMPLAINT HAS STATED FACTS SUFFICIENT TO CONSTITUTE EACH CAUSE OF ACTION A complaint is invulnerable to a general demurrer if on any theory it states a cause of action. Quelimane Co., Inc. vs. Stewart Title Guar. Co. (1998) 19 Cal. 4th 26, 28; Adelman vs. Associated Intl. Ins. Co. (2001) 90 Cal. App. 4th 352, 359. That is, all that is necessary as against a general demurrer is to plead facts showing that the plaintiff may be entitled to some relief (Richard H. v. Larry D. (1988) 198 Cal. App. 3d 591, 594). A general demurrer does not lie to only part of a cause of action. If there are sufficient allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer. Financial Corp. of America vs. Wilburn (1987) 189 Cal. App. 3d 764, 778; PH II, Inc. vs. Sup. Ct. (Ibershof) (1995) 33 Cal. App. 4th 1680, 1682. In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties (Code Civ. Proc. 452; Saxer v. Philip Morris, Inc. (1975) 54 Cal. App. 3d 7, 18, 126 Cal. Rptr. 327). Clarity of pleading is not essential to overcome a general demurrer. Objections that a complaint is ambiguous or uncertain, or that the essential facts appear only inferentially, or as conclusions of law, or by way of recitals, must be raised by special
______________________________________________________________________________________ PLAINTIFFS OPPOSITION page: 4 Levi R. UKU, Esq. TO DEMURRER Law Offices Of Levi R. Uku 3540 Wilshire Blvd., Suite 626 LOS ANGELES, CALIFORNIA 90010 (213) 385-0193

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

demurrer, and cannot be reached on general demurrer. Johnson vs. Mead (1987) 191 Cal. App. 3d 156, 160. (emphasis in original) The court is not limited to plaintiff's theory of recovery in testing the sufficiency of the complaint against a demurrer, but instead must determine whether the factual allegations of the complaint are adequate to state a cause of action under any legal theory. Mistaken labels and confusion of legal theory are not fatal; if the plaintiff's complaint states a cause of action on any theory, the plaintiff is entitled to introduce evidence thereon (Nguyen v. Scott (1988) 206 Cal. App. 3d 725, 729-730, 253 Cal. Rptr. 800). If on a consideration of all the facts stated it appears that the plaintiff is entitled to any relief at the hands of the court against the defendant, the complaint will be held good, although the facts may not be clearly stated (Chase Chemical Co. v. Hartford Accident & Indemnity Co. (1984) 159 Cal. App. 3d 229, 242-243, 205 Cal. Rptr. 469. The sole issue involved in a hearing on a demurrer is whether the complaint, as it stands, unconnected with extraneous material, states a cause of action. In testing the legal sufficiency of a pleading against a general demurrer, all properly pleaded allegations, including those that arise by reasonable inference, are deemed admitted regardless of the possible difficulty of proof at trial. Saxer, supra. A court is required, in every stage of an action, to disregard any defect in the pleadings that in the opinion of the court does not affect the substantial rights of the parties (Code Civ. 1Proc. 475; Gressley v. Williams (1961) 193 Cal. App. 2d 636, 639, 14 Cal. Rptr. 496). For the purpose of testing the sufficiency of the cause of action, the demurrer

admits the truth of all material facts properly pleaded. Aubry vs. Tri-City Hosp. Dist. (1992) 2 Cal. 4th 962, 966-967. The problems of proof are irrelevant and of no concern

______________________________________________________________________________________ PLAINTIFFS OPPOSITION page: 5 Levi R. UKU, Esq. TO DEMURRER Law Offices Of Levi R. Uku 3540 Wilshire Blvd., Suite 626 LOS ANGELES, CALIFORNIA 90010 (213) 385-0193

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

in ruling on a demurrer. Committee on Childrens Television, Inc. vs. General Foods Corp. (1983) 35 Cal. 3d 197, 213-214. A. A DEMURRER FOR UNCERTAINTY IS DISFAVORED A demurrer for uncertainty will be sustain only where the complaint is so bad that the defendant cannot reasonably respond, i.e. he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him. Khoury vs. Malys of Calif., Inc. (1993) 14 Cal. App. 4th 612, 616. Thus, demurrers for uncertainty will almost certainly be overruled where the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable by invoking discovery procedures. Khoury, supra.

III HARTFORD IS LIABLE FOR THE NOTORYS NEGLIGENCE AND BREACH OF DUTY TO PLAINTIFF Regardless of Notary Evans intention, he failed by negligently and or, intentionally notarizing a document when the alleged affiant was not present before him and he did not physically verified the affiant who was described in the grant deed as the seller of the real property subject of this litigation. Evans deed not personally witnessed Samantha Hill affixed her signature to the Grant deed, which allegedly transferred Plaintiffs real property to a third party Jonelle Baired. Therefore, Defendant Evans is liable to the Plaintiff for the resulting damages attributable to his omission or error. See, Bank of Woodland v. Oberhaus, 125 Cal. App. 320, 324. Hartford is liable to Plaintiff as the Surety of Notary Evans and Evans omissions, errors and breach of fiduciary duty. See, Denham v. Superior Court, 2 Cal.3d 557.563. Disapproving, Breckenridge v. Mason, 256 Cal.App.2d 121, 130.

______________________________________________________________________________________ PLAINTIFFS OPPOSITION page: 6 Levi R. UKU, Esq. TO DEMURRER Law Offices Of Levi R. Uku 3540 Wilshire Blvd., Suite 626 LOS ANGELES, CALIFORNIA 90010 (213) 385-0193

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 knowledge of an instrument shall not be taken unless the officer it personally knows, or has satisfactory evidence that the person making the acknowledgment is, the individual who is described in and who executed the instrument Cal. Civ. Code section 1185. In this instant matter, Samantha Hill never appeared before Notary Evans whose office is located in San Francisco to notarize the said grant deed. Indeed, the signature was forged on the grant deed and subsequently sent to Evans in San Francisco, who notarized the alleged grant deed without personally verifying the individual whose signature appeared on the instrument. Thereby violation the law and the standards set forth in, Brown v. Rives, 42 Cal. App. 482, 485-88., which requires that a notary must certify that the individual making the acknowledgment is the individual described in the document. When taking an acknowledgment, the notary should require the acknowledging party to appear in person before him, as he is required to certify that such person personally appeared. If an instrument is acknowledge in violation of this rule (e.g., by telephone), the notary would be liable if the person was an imposter. McDonald v. Plumb, 12 Cal. App. 3d 374,376. The negligence of the notary public need not be the sole proximate cause of the plaintiffs loss; it is sufficient that the negligence is a proximate cause that, together with other cause, joined in producing the damage. See, Tutelman v. Agriculture Ins. Co., 25 Cal. App 3d 914,918. Plaintiff allege in the complaint that Plaintiffs signature and that of Samantha Hill, were forged on the two grant deeds that purportedly, transferred Plaintiffs ownership interest in the said real property to third parties. That the notaries did not personally verified the identity of any of the persons that made the acknowledgment in
______________________________________________________________________________________ PLAINTIFFS OPPOSITION page: 7 Levi R. UKU, Esq. TO DEMURRER Law Offices Of Levi R. Uku 3540 Wilshire Blvd., Suite 626 LOS ANGELES, CALIFORNIA 90010 (213) 385-0193

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 said grant deeds, thereby stating sufficient facts to support the allegation for negligence, notary public misconduct and negligent infliction of emotional distress. CONCLUSION Based upon the foregoing, Plaintiff respectfully requested that Defendants Demurrer be overruled. Should the Court find the Complaint to be deficient, Plaintiff respectfully requests leave to amend the complaint.

RESPECTFULLY SUBMITTED

LAW OFFICES OF LEVI R. UKU

Date: March 9, 2008

By:______________________ LEVI R. UKU, ESQ Attorney for Plaintiff Prudence Waltz

______________________________________________________________________________________ PLAINTIFFS OPPOSITION page: 8 Levi R. UKU, Esq. TO DEMURRER Law Offices Of Levi R. Uku 3540 Wilshire Blvd., Suite 626 LOS ANGELES, CALIFORNIA 90010 (213) 385-0193