Mojica Demurrer

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LEVI REUBEN UKU SBN: 196406LAW OFFICES OF LEVI REUBEN UKU3540 Wilshire Blvd. , Sui te 626Los Angeles, CA 90010(213) 385-0193, (213) 385-0576 faxAttorney for Defendants

SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF KERN

U.S. BANK NATIONAL ASSOCIATION ET Case No.: S-1500-CL-245002AL Pla in t i f f NOTICE OF DEMURRER ANDDEMURRER TO COMPLAINTv. DEPT: 17

RAUL MOJICA PRADO e t a I , SEPTEMBER 30, 2010

Defendants.

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on September 30, 2010, at 8:30 a.m., in Department "17 " , 0the above-entitled court located at 1415 Truxtun Avenue, CA 93301, Defendant Raul MojicPrado will demur to the Complaint on file herein pursuant to California Code ofCivil Procedursections 430.10 subdivision (e) and 430.30 subdivision (a).

Defendant, Prado will demur to the Complaint on the following grounds:1. The First Cause of Action for Unlawful Detainer to state facts sufficient to constitute

cause of action for fraud against the demurring Defendant. The Defendant purchased thsubject property in 2005; at the commencement of the said unlawful detainer action.

1NOTICE OF DEMURRER


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Defendant subleased the premises to two unrelated adults who resided in the premisealong with the Defendant.

2. Further, Defendant demurrer is based on the fact that the complaint failed to state a causof action, because the complaint was filed prematurely and contrary to the 30/90 daought to have given/or gave the Defendants; The Plaintiff was required by law to give60-day notice to the subleasor occupants of the said property.

3. Plaintiff filed this action contrary to the law by failing to give adequate notice to thnone-owner occupants of the property.

4. To the extent said cause of action for unlawful detainer is predicated on notice that wainadequate and contrary to law, it must fail for failure to state a cause of action.

This demurrer is made and based upon this notice, the accompanying memorandum ofpointand authorities, the papers, records and pleadings on file herein and upon such oral argument anevidence as may be introduced at the time of the hearing of this demurrer.

WHEREFORE, Defendants, pray for relief as follows:(1) That this demurrer be sustained without leave to amend;(2) For judgment in favor of this Defendants;(3) For all costs of suit incurred herein; and(4) For such other and further relief as this court deems just and proper, whether in law

or equity.

Dated: August 16,2010 LAW OFFICES OF LEVI REUBEN UKU

BY_____~ ~ - -_- - - - - - - - - - - - - - - - - L E ~

2 NOTICE OF DEMURRER


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MEMORANDUM OF POINTS AND AUTHORITIES!

STATEMENT OF FACTSOn Plaintiff filed this action on December 21,2009, Plaintiffs action is based on the fac

that it purchased the subject real property at a foreclosure sale, and thus is a foreclosure buyer ipossession of a deed upon sale, thereby claiming interest on the said property.purported served via "substitute service" on the occupants a "Notice to Quit" sometimes iDecember, 2009. Contrary to the said notice, Defendant or its agent was not served with the sai3/60/90 day notice to quit.The said notice is attached to the complaint as Exhibit "2". The Notice stated three differenperiods for the occupants to quit possession as follows: 3 day; 30 day; 60 day and 90 day.

It is important to note that the property is occupied by the Defendant and Defendant'subleasor.

Defendant believes that the notice of 60 or 90 day applied to the' occupants of the saiproperty, in which case, any unlawful detainer action must be filed at the expiration of the 60 090 day period. Plaintiff knew that the Defendant subleased the said premises to an unrelatethird party. Yet, Plaintiff failed to wait sixty days after the service of the sixty-day notice to quiin order filing the instant unlawful detainer action.

Plaintiff filed the said action on December 12, 2010 less than the required sixty danotice. The said notice was purportedly posted on December _ , 2009.. See, Exhibit "2" to thcomplaint. See, Code ofCivil procedure section 1161 (a)(b)(3).

Defendant believes that the complaint fails to state a cause of action as it was fileprematurely.

3NOTICE OF DEMURRER


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ARGUME1W

I I

A DEMURRER IS PROPERLY SUSTAINED WHERE A COMPLAINT FAILS TO STATE A CAUSE OF ACTION

A demurrer is a proper vehicle whereupon the Complaint is tested for failure to state acause of action, as set forth in California Code of Civil Procedure section 430.10. In addition, ademurrer may be properly sustained without leave to amend even if made on the grounds that thecomplaint fails to state facts sufficient to state a cause of action, or plaintiff fails to show that thecomplaint can be cured. Blank v. Kirwan (1985) 39 Ca.3d 311,318.

VII CONCLUSION

For the foregoing reasons, Defendants respectfully request that the demurrer be sustainedwithout leave to amend.

Dated: August 16,2010. LAW OFFICES OF LEVI REUBEN UKU



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PROOF OF SERVICESTATE OF CALIFORNIA )COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over theage of eighteen (18) and not a party to the within action. My business address is 3540Wilshire Blvd. Suite 626, L.A, CA 90010.

On 8/161 2010 I served the foregoing document described as:NOTICE OF DEMURRER TO UNLAWFUL DETAINER COMPLAINTon the interested parties by U.S. Postal Service;RAYMOND G. ALVARADO, ESQUIRE1 MACARTHUR PLACE #210SANTA ANA, CA 92707I am readily familiar with firm's practice of collection and processincorrespondence for mailing. Under the practice the envelope would be deposited withU.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles,California in the ordinary course of business. 'am aware that on motion of the partserved, service is presumed invalid if postal cancellation date or postage meter dates imore than one day after date of deposit for mailing.

I declare under penalty of perjury, under the laws of the State of California, thathe foregoing is true and correct.

Dated: 8/16/2010Levi Reuben Uku


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