Blank Pleading Template With Line Numbering -- Word

Nancy DeLoach, In Pro Per

1815 Virginiatown Rd.

Lincoln, Ca 95648

Phone: (916) 645-2768Fax: (916) 645-2768

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF PLACER

-Limited Civil Case -

)

LINDA BUISSON

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PLAINTIFF

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vs.

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)

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NANCY DELOACH

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DEFENDANT

) ____________________________________)

TO: PLAINTIFF, Linda Buisson:PLEASE TAKE NOTICE that on June 11, 2015 at 8:30 AM, or as soon thereafter as the matter may be heard, in Department 40 of the above court, located at 10820 Justice Center Drive, Roseville, CA 95661, defendant, Nancy DeLoach will and hereby does move the Court for an order sustaining a general demurrer to the unlawful detainer complaint. This demurrer is made pursuant to California Code of Civil Procedure 430.10 (a) (b) (e) & (f) on the grounds that the court has no jurisdiction of the subject of the cause of action alleged in the pleading; plaintiff does not have the legal capacity to sue; the complaint fails to state facts sufficient to constitute a cause of action for unlawful detainer concerning possession of real property; and the pleading is uncertain which includes ambiguous and unintelligible. This demurrer is based upon this notice of demurrer, the attached demurrer, the memorandum of points and authorities, any matters of which the court is required to or may take judicial notice and upon such oral and documentary evidence as may be presented by Defendants upon the hearing of the demurrer.Dated:

___________________________________

Nancy DeLoach In Pro Per

Pursuant to Local Rule 20.2.3, the court will issue a tentative ruling for this matter on the court day before the hearing. The tentative ruling will be available after 12:00 noon as an audio recording accessible at (916) 408-6480; the tentative ruling will also be available at the courts website, www.placer.courts.ca.gov. The tentative ruling shall become the final ruling on the matter and no hearing will be held unless oral argument is timely requested or the tentative ruling indicates otherwise. Requests for oral argument must be made by calling (916) 408-6481 no later than 4:00 p.m. on the court day prior to the hearing.DEMURRER TO PLAINTIFFS COMPLAINTDefendant, Nancy DeLoach (DeLoach) hereby generally demurs to the complaint filed on May 1, 2015 by Plaintiff, Linda Buisson (Buisson).This Demurrer is made pursuant to Code of Civil Procedure 430.10 and 1170.CCP 1170 On or before the day fixed for his appearance, the defendant may appear and answer or demur.CCP 430.10 The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on the following grounds:FIRST GROUND FOR DEMURRER

The court has no jurisdiction of the subject of the cause of action alleged in the pleading.SECOND GROUND FOR DEMURRER

The person who filed the pleading does not have the legal capacity to sue.THIRD GROUND FOR DEMURRER

The complaint fails to state facts sufficient to constitute a cause of action.

(possession of real property)

FOURTH GROUND FOR DEMURRERThe pleading is uncertain. Uncertain includes ambiguous and unintelligible.MEMORANDUM IN SUPPORT OF DEMURRERDEFENDANTS DEMURRER IS PROPERLY BEFORE THE COURT. A defendant in an unlawful detainer action may demur C.C.P. 1170. Although dicta in Delta Imports v Municipal Court, 146 Cal.App.3d.1033 (1983) suggests that a motion to quash is the remedy where a complaint fails to state a cause of action in unlawful detainer, Delta did not overrule prior cases. The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter. Hall vs. Chamberlin, (1948) 31 Cal.2d 673, 679-680.

If a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp.(1992) 4 Cal.App. 4th 857, 880. Thus, the Court is authorized to grant this demurrer.

DeLoach hereby generally demurs to the complaint pursuant to CCP 430.10:The court has no jurisdiction of the subject of the cause of actionBuisson asserts claims based on the courts decision and entered judgement for case MCV-0059951. This judgement is pending appeal and jurisdiction in matters embraced by this judgement has been transferred to the appellate division. The filing of an appeal from a judgment divests the trial court of all jurisdiction in matters embraced in the judgment or affected thereby. (Code Civ. Proc., 916.) The appeal "vests jurisdiction in the appellate court and terminates the jurisdiction of the lower court." (Estate of Hanley (1943) 23 Cal.2d 120, 123 [142 P.2d 423, 149 A.L.R. 1250].)(Filing of notice of appeal divests trial court of all jurisdiction in matters embraced by judgment or affected thereby). Olson v. Superior Court (1969) 274 Cal. App. 2d 311, 314, 79 Cal. Rptr. 136; see also Estate of Hanley (1943) 23 Cal. 2d 120, 123, 142 P.2d 423h. The person (Buisson) who filed the pleading does not have the legal capacity to sue.CCP7 726.(a) There can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property or an estate for years therein.

Any claim for possession could have and should have been brought before the court in MCV-0059951 which Buisson did not. As such, this instant case violates the one action rule. Further, Buisson has not brought a new action upon DeLoach. Buisson has circumvented court process and has expedited, without leave of court to do so, a second amended complaint which should have been done through case MCV-0063278. Buisson dismissed case 63278 after her 1st amended complaint was subject to a demur as the issues with the original complaint had not yet been correctly amended. Buisson alleges that DeLoach is filing baseless demurrers and other documents to cause a delay of proceedings. Buisson refuses to be accountable for her failing to insure that there is no reason for DeLoach to object! Plaintiff fails to state sufficient facts to support a cause of action for an unlawful detainer under CCP 1161a as there has been no sale of the manufactured home.

The proceeding is brought upon defendant under California Code of Civil Procedure, section 1161a. To prevail, a plaintiff must prove affirmatively that the property was "duly sold" and that "the title under the sale has been duly perfected." Contrary to the rule applying to unlawful detainer where the landlord-tenant relationship is involved, title thus becomes an issue. (Kelliher v. Kelliher (1950), 101 Cal.App.2d 226, 232 [225 P.2d 554].)Buissons complaint fails to allege that there has been a sale of the manufactured home. Buisson instead states the home was acquired under the default provisions of a security agreement according to HSC 18037.5. HSC 18037.5(a)(4) states: If the default is not cured within the time indicated on the notice required by paragraph (1), or if the property has been abandoned by the registered owner or voluntarily surrendered by the registered owner to the foreclosing creditor, the creditor may proceed to sell the property at private or public sale pursuant to the provisions of Section 9610 of the Commercial Code, except as provided in paragraph (5) and subdivision (c). Buisson references COM 9620 which is entirely different than 9610. Buisson states that the defendants in case MCV-0059951 consented to acceptance of the modular home in full satisfaction of the obligation it secured as no objection was received after plaintiffs proposal of February 11, 2014. The stated case was filed on December 2, 2013. Plaintiff actually had sent two different proposals both were made AFTER this case was file, defendants objection is included within the responsive pleadings of the case and no consent was ever granted. Plaintiff sent an initial proposal on December 26, 2013 which was specifically objected to by defendant on December 28, 2013.

The pleading is uncertain as there are numerous inconsistencies.

The complaint is for possession of Real Property. There is a mountain of documents filed by Buisson relative to the ELEVEN lawsuits and associated Ex Partes and motions that have been brought against the DeLoach family. Not once has Buisson referred to the manufactured home as real property. Buisson has previously designated the five acre parcel as three separate segments: 1) The manufactured home with small yard and parking area, 2) The 2-story residence and the yard area immediately surrounding it, and 3) approximately three acres of irrigated pasture, barn and workshop. It is uncertain if Buisson is asking for possession of the pasture, barn and workshop used by DeLoach since moving to the property in 2008. Obtaining possession of these areas certainly is not available under the provisions of CCP 1161a. Further adding to the confusion is that Buisson states a rental value of $1245 per month. However, Buisson has previously declared that this figure assumes a usage value of $800 for the manufactured home and the remaining $545 attributed to the real property (see Buissons Opposition to Request for Stay of Execution Pending Appeal filed April 13,2015 in case MCV-0059951). Additionally, the appraisal attached to complaint as exhibit 4, which Buisson relies on to support the $1245 rental value, includes the manufactured home, barn, workshop and pastures.

A plaintiff must give a 60-day notice to a residential tenant or resident who has resided on the premises for one year or more per CC 1946.1(b). And per Ca. Civil Code 1943 ... in the case of real property used for agricultural or grazing purposes a hiring is presumed to be for one year from its commencement unless otherwise expressed in the hiring.

For the reasons stated above, DeLoach asks the court to sustain the

general demurrer to the unlawful detainer complaint without leave to amend.

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Dated:

___________________________________

Nancy DeLoach In Pro PerCase No: MCV0063468

Notice of Demurrer and Demurrer to Complaint for Possession of Real Property: Memorandum in Support; Declaration or Nancy DeLoach

Complaint Filed: May 1, 2015

Hearing Date: June 11, 2015

Time: 8:30 AMDept: 40

2NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT