Demurrer in Kurnosoff v. Babshoff, Jr.| Trellis.Law

On September 19, 2018 a Motion-Secondary was filed involving a dispute between Kurnosoff, Jimmy, and Babshoff, Ann, Babshoff, Jim, Jr, Malik, Faiz, for civil in the District Court of Fresno County.

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BRIAN K. CUTTONE (SBN 2013 14)
pd

E-FILED
CUTTONE & ASSOCIATES 1/7/2019 4:55 PM
5380 N. Fresno Street, Suite 102
Fresno, California 93710 FRESNO COUNTY SUPERIOR COURT
By: C. York, Deputy
Telephone: 559.228.8490
Facsimile: 559.421.1991

Attorneys for Defendants, Jim Babshoff, Jr. and Ann Babshoff,
As individuals and as trustees of the
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Babshoff Revocable Living Trust

SUPERIOR COURT OF CALIFORNIA

COUNTY OF FRESNO
JIMMY KURNOSOFF, an individual, ) Case No.: 18CECG03494
)
Plaintiff, ) MEMORANDUM 0F POINTS AND
) AUTHORITIES IN SUPPORT 0F
v. ) DEMURRER BY BABSHOFF
) DEFENDANTS
JIM BABSHOFF JR., as trustee of the )
BABSHOFF REVOCABLE LIVING )
TRUST and individually, ANN )
BABSHOFF, as trustee ofthe BABSHOFF ) Date: February 21, 2019
REVOCABLE LIVING TRUST and ) Time: 3:30 p.m.
individually, FAIZ MALIK, an individual, ) Dept: 403
and DOES
'
1-10, ) Judge: Hon. Rosemary McGuire
)
Defendants. ) Complaint Filed: September 19, 2018
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)
)

Defendants Jim Babshoff, and Ann Babshoff, as individuals and as trustees of the
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Jr.

Babshoff Revocable Living Trust (collectively “Defendants” of Babshoff Defendants”)

respectfully submit this Memorandum of Points and Authorities in support of their Demurrer

to the First Amended Complaint ﬁled by Plaintiff Jimmy Kurnosoff (“Plaintiff”) on or about

December 7, 201 8 (the “First Amended Complaint”).

I. INTRODUCTION AND SUMMARY ARGUMENT
Plaintiff ﬁled a frivolous lawsuit in an effort to harass, bully, defraud and harm

Defendants for: (1) breach of an oral contract; (2) breach of a written contract; (3) intentional

misrepresentation; (4) negligent misrepresentation; (5) unjust enrichment; (6) declaratory

relief; and (7) quiet title (the “First Amended Complaint”). See a true and correct copy of the

Memorandum of Points and AuthoritiesIn Support of Demurrer
TABLE OF CONTENTS

INTRODUCTION AND SUMMARY ARGUMENT ....................................
II; FACTS
III. LAW _
UI-h-PN—I

A. Demurrers Generally
IV. ARGUMENT _____

A. The First Cause of Action for Breach of An Oral Contract Fails to
Allege Sufﬁcient Facts to State a Cause of Action Against Defendants Since
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the First Amended Complaint Alleges That The Defendant Ann Babshoff
Breached An Oral Agreement Pertaining To The Transfer Of An Interest In
Real Property, Which Was Required To Be In Writing Pursuant To Civil
Code Sections 1971 And 1624(A), (3) And (5).
1. The Demurrer Must Be Sustained As To The First Cause of Action
Since It Violates Code of Civil Procedure Section 1971. ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
2. The Demurrer Must Be Sustained As To The First Cause of Action
Since ItViolates Civil Code section 1624(a)(1)(3) and(S)—The Statutes of
Frauds. __

B. The Second Cause 0f Action For Breach of Written Contract Fails
To Allege Sufﬁcient Facts To State A Cause Of Action. ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
C. The Third Cause of Action For Intentional Misrepresentation Fails
To State A Claim And Therefore The Demurrer As To It Should Be
Sustained. u
D. The Fourth Cause of Action For Negligent Misrepresentation Fails
T0 State A Claim And Therefore The Demurrer As To It Should Be
Sustained. ...................................................................
E. The Sixth Cause of Action For Declaratory Relief Fails To State A
Claim And Therefore The Demurrer As To It Should Be Sustained. ,,,,,,,,,,,,,
F. The Seventh Cause of Action For Quiet Title Fails To State A Claim
For Relief And The Demurrer As To It Should Be Sustained,,,,,,,,,,,,,,,,,,,,,,,,,
CONCLUSION 12

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Closing Reply Brief
Plaintiffs’
TABLE OF AUTHORITIES

Adelman v. Associated Int ’l Ins. Co. (2001) 90 Cal.App.4th 352, 359,,,,,,,,,,,
Aubry v. Tri—City Hosp. Dist. (1992) 2 Cal.4th 962, 966—967________________________
Casterson v. Sup.Ct. (Cardoso) (2002) 101 Ca1.App.4th 177, 183 ,,,,,,,,,,,,,,,,,
City OfCofati V- Cashman (2002) 52 P-3d 695.................................................
Clyolife, Inc. v.Sup.Ct. (Minvielle) (2003) 110 Cal.App.4th 1145, 1152 _____
\OOONQM-kkoJN—n

Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994_______________
Guardian North Bay, Inc. v. Sup.Ct. (Myers) (2001) 94 Cal.App.4th 963,
971—972, emphasis added ..................................................................................
Halloran v. Greene, 114 Cal. App. 685 ............................................................
Holiday Matinee, Inc. v. Rambus (2004) 118 Cal.App.4th 1413, 1421 ,,,,,,,,,,
Morton v. Angst, 36 Cal. App- 644....................................................................
Lewis v. Brown, 22 Cal- App- 38 .......................................................................
Loper V- Flynn, 72 Cal. App- 2d 619.................................................................
Serrano V- Priest (1971) 5 Cal-3d 584, 591 ......................................................
Shive v. Barrow, 88 Cal- App- 2d 838...............................................................
6

Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A.) .......................................
4, 5
Civil Code section 1550 ....................................................................................
2,7
Civil Code sections 1971 and 1624(a), (3) and (5) ..........................................
2,5,6
Code of Civil Procedure sections 761 .010(b)...................................................
9
Code of Civil Procedure section 761 .020 .........................................................
2, 10
Code of Civil Procedure section 405.22 ...........................................................
2,9
Code Civ. Proc., §§ 422.10, 589........................................................................
4
Code of Civil Procedure section 430.10 ...........................................................
4
Code of Civil Procedure section 430-30(a).......................................................
4
Welfare & Institutions Code section 15610.27 ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
3
Welfare & Institutions Code section 15610.30 3

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Closing Reply Brief
Plaintiffs’
First Amended Complaint attached to the Request For Judicial Notice, as Exhibit 1.

Defendants’ demurrer (the “Demurrer”) is based on: (a) the First Cause of Action for

Breach of Oral Contract fails to adequately state a cause of action for breach of an oral

contract since the Complaint alleges that the Defendant Ann Babshoff breached an oral

agreement pertaining t0 the transfer of an
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interest in real property, which was required t0 be in

writing pursuant to Civil Code sections 1971 and 1624(a), (3) and (5); (b) the Second Cause

of Action for Breach of Written Contract fails to adequately state a cause of action for breach

of a written contract since the Complaint fails to allege that a sufﬁcient cause or consideration

was exchanged, pursuant to Civil Code section 1550; (c) the Third Cause of Action for

Intentional Misrepresentation fails to state a cause of action since (i) the First Amended

Complaint fails to allege that Jimmy Kurnosoff has standing to assert the purported claims of

his father Jim Kurnosoff, Sr. (ii) the First Amended Complaint fails to allege that the

Defendants made a material misrepresentation, (iii) the First Amended Complaint fails to

allege fraud against the Defendants with particularity, and (iv) the First Amended Complaint

fails to allege anyone, with standing or otherwise, reasonably relied on the phantom

misrepresentation; (d) the Fourth Cause of Action for Negligent misrepresentation fails to

state a cause of action for the same reasons as the intentional misrepresentation claim—see

above; (e) the Sixth Cause of Action for Declaratory Relief fails to state a claim since itfails

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to allege speciﬁc
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underlying facts of the respective claims concerning the subject matter in

dispute; and (f) the Seventh Cause of Action for Quiet Title fails to state a cause of action

since the First Amended Complaint fails to allege the speciﬁc facts constituting adverse

possession, pursuant to Code of Civil Procedure section 761.020 and isprocedurally defective

pursuant to Code of Civil Procedure sections 761 .010 and 405.22, since Plaintiff has not ﬁled

a Notice of Pendency of Action with the Court.

II. FACTS
Defendant Ann Babshoff is an individual who, at all times mentioned herein, resided

in Fresno County. At the time of the transactions and events at issue herein, Ann Babshoff

was 65 year-old married woman and thus, was an “elder” as that term is deﬁned by Welfare &
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Memorandum of Points and Authorities In Support of Demurrer
Institutions Code section 15610.27 (i.e., she was a California resident over the age of 65).

Further, Ann is a dependent adult as that term is deﬁned by Welfare & Institutions Code

section 156710.30 (i.e.,she is legally blind).

Defendant Jim Babshoff is an individual who, at alltimes mentioned herein, resided in

Fresno County.
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At the time of the transactions and events at issue herein, Jim Babshoff was a

73-year-old married man and thus, was an “elder” as that term is deﬁned by Welfare &
Institutions Code section 15610.27 (i.e.,he was a California resident over the age of 65).

Defendants Ann Babshoff and Jim Babshoff are the trustees of the defendant Babshoff

Revocable Living Trust. See Cross-Complaint at paragraph 5.

Plaintiff and Cross-Defendant herein, Jimmy Kumosoff (“Jimmy”), is an individual,

who, at alltimes mentioned herein, resided in Fresno County. At the time of the transactions,

acts and omissions to act, at issue herein, Jimmy was also the Trustee of his father’s trust, the

Jim Kumoshoff trust.

On March 23, 1993, Jim Kurnosoff and Vera Kumosoff, the father and mother of Ann

Babshoff granted, by Grant Deed, the propeny commonly known as 17223 W. Kearney Blvd.,

Kerman, California 93630-9316, which consisted of approximately 29.19 acres on two

parcels, with two houses,
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two out buildings or shops and approximately 29 acres of a

Thompson Seedless vineyard (the “Property”). See a true and correct copy of the Grant Deed
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attached as Exhibit 2 to the Request For Judicial Notice,

Pursuant to a verbal arrangement, the Defendants allowed a portion of the Property, in

particular, the Thompson Seedless Vineyard (hereinafter the “Vineyard”), to be used by

Plaintiff (Jimmy) for one year, at no cost to Jimmy.

Pursuant to the arrangement, Jimmy had the right to farm the land for one year, from

January l, 2017 through December 31, 2017. Jimmy had been repeatedly informed by the

Defendants, throughout 2017 and before, that they were selling the Property at the beginning

of 201 8 and Jimmy did not and would not have the right to farm the Property.

On November 15, 2017, Defendants listed the Property for sale and, on May 25, 2018,

sold the Property to Co-Defendant Faiz Malik who is now the legal and equitable owner.

3
Memorandum of Points and Authorities In Support of Demurrer
Before and after Jimmy harvested his 2017 crop from the Property, Defendants again

informed Jimmy that Defendants would be selling the Property in 2018. In fact, by

November, 2017, there was a “for sale” sign on the Property which clearly confirmed

Defendants’ communications to Jimmy that they would be selling the Property and that he
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had no continued right to farm the Property. See Cross—Complaint at paragraph 18.

III. LAW
A. Demurrers Generally

Code of Civil Procedure section 430.10 et seq. provides the statutory authority for

demurrers:

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 any one or more of the following grounds . . .
(e) The pleading does not
state facts sufficient to constitute a cause of action.

Code Civ. Proc., § 430.10 (emphasis added).

Further, Code of Civil Procedure section 430.30(a) states:

When any ground for objection to a complaint, cross-complaint, or answer
appears on the face thereof, or from any matter of which the court isrequired
to or may take judicial notice, the objection on that ground may be taken by a
demurrer to the pleading.
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A demurrer is a pleading used to test the legal sufﬁciency of other pleadings, i.e.,it

raises issues
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of law, not fact, regarding the form or content of the opposing party’s pleading

(complaint, answer or cross-complaint). (Code Civ. Proc., §§ 422.10, 589; see Donabedian v.

Mercury Ins. C0. (2004) 116 Cal.App.4th 968, 994 (citing text); Cal. Prac. Guide Civ. Pro.

Before Trial Ch. 7(I)-A.) For the purpose of testing the sufﬁciency of the cause of action, the

demurrer admits the truth of all material facts properly pleaded (i.e., allultimate facts alleged,

but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri—City Hosp. Dist.

(1992) 2 Cal.4th 962, 966—967; Serrano v. Priest (1971) 5 Cal.3d 584, 591; Adelman v.

Associated Int’l Ins. Co. (2001) 90 Cal.App.4th 352, 359; Cal. Prac. Guide Civ. Pro. Before

Trial Ch. 7(I)-A.)

A demurrer can be utilized where the complaint itself is incomplete or discloses some

4
Memorandum of Points and Authorities ln Support of Demurrer
defense that would bar recovery (e.g., dates pleaded in complaint show statute of limitations

has run). (Guardian North Bay, Inc. v. Sup.Ct. (Myers) (2001) 94 Cal.App.4th 963, 971—972,

emphasis added; Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A.)

A general demurrer may lie because the complaint alleges either too little,or too
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much: i.e., itcan be used where the complaint is incomplete (the Cross-Complainants have

failed to allege some “ultimate fact” required to state a cause of action). Or, itcan be used

where the Cross-Complainants have included allegations that clearly disclose some defense

or bar to recovery; or where the court takes judicial notice of matters disclosing such

defense. (Cryolife, Inc. v. Sup.Ct. (Minvielle) (2003) 110 Ca1.App.4th 1145, 1152 (citing

text); Casterson v. Sup.Ct. (Cardoso) (2002) 101 Ca1.App.4th 177, 183 (citing text); Holiday

Matinee, Inc. v. Rambus (2004) 118 Ca1.App.4th 1413, 1421 (citing text); Cal. Prac. Guide

Civ. Pro. Before Trial Ch. 7(I)-A.)

IV. ARGUMENT
A. The First Cause of Action for Breach of An Oral Contract Fails to Allege

Sufficient Facts to State a Cause of Action Against Defendants Since the First Amended

Complaint Alleges That The Defendant Ann Babshoff Breached An Oral Agreement

Pertaining To The Transfer Of An
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Interest In Real Property, Which Was Required To

Be In Writing Pursuant To Civil Code Sections 1971 And 1624(A), (3) And (5).

l. The Demurrer Must Be Sustained As To The First Cause of Action
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Since It Violates Code of Civil Procedure Section 1971.

Code of Civil Procedure section 1971 states:
“No estate or interest in real nronertv. other than for leases for a term not
exceeding one vear. nor anv Dower over or concerning it. or in anv manner
relating thereto. can be created. granted. assigned. surrendered. or
declared. otherwise than bv operation of law. or a convevance or other
instrument in writing. subscribed bv the nartv creating, granting.
assigning. surrendering. or declaring the same, or bythe party'slawful
agent thereunto authorized by writing.”

Emphasis added.

According t0 the allegations in the First Amended Complaint, Defendant Ann Babshoff

agreed, orally, that she would obtain a future interest in the subject property, referred to as the

5
Memorandum of Points and Authorities [n Support of Demurrer
3 Palms Property in the First Amended Complaint, and agreed that Jim Kumosoff Sr., not a

party to this case, and Plaintiff could reside on, manage, cultivate, grow and sale the crop for

their own beneﬁt. See First Amended Complaint at paragraph 32. As evidenced by the Grant

Deed from 1993 (Exhibit 2 to RJN), Defendant Ann Babshoff’s parents, Jim and Vera

Kurnosoff
OWNQMAWNH granted her the subject property approximately 25 years ago. Moreover, the

purported agreement speciﬁcally falls within the ambit of Code of Civil Procedure section

1971 and therefore is void as a matter of law.

Based upon this independent ground, the Demurrer to the First Cause of Action for

Breach of an Oral Contract must be sustained, without leave to amend, as the defect cannot be

cured.

2. The Demurrer Must Be Sustained As To The First Cause of Action

Since ItViolates Civil Code section 1624(a)(1)(3) and(5)—The Statutes of Frauds.

Civil Code section 1624(a) states in relevant part:

(a) The following contracts are invalid. unless thev. or some note or memorandum
thereof, are in writing and subscribed by the party to be charged or by the party's
agent:

(1) An agreement that by itsterms is not to be performed within a year from the
making thereof.

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(3) An agreement for the leasing for a longer period than one vear. or for the sale of
real nronertv. or of an interest therein: such an agreement. if made bv an agent of
the Dartv sought to be charged. is invalid. unless the authority of the agent is in
writing,
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subscribed by the party sought to be charged.

(5) An agreement that by its terms is not to be performed during the lifetime of the
promisor.

The demurrer must be sustained against the First Cause 0f Action for breach of an oral

contract since the First Amended Complaint alleges an agreement concerning a future interest

in the property presumably upon the death of Jim Kumosoff, Sr. and that the Plaintiff and

his father could lease the property and continue to farm in perpetuity. See First Amended

Complaint at paragraph 10, ll, and 32. See also, Lewis v. Brown, 22 Cal. App. 38; Halloran

v. Greene, 114 Cal. App. 685; Morton v. Angst, 36 Cal. App. 644; Loper v. Flynn, 72 Cal.

App. 2d 619; Shive v. Barrow, 88 Cal. App. 2d 838. This purported lease agreement,

6
Memorandum of Points and Authorities [n Support of Demurrer
notwithstanding that it is nonsensical and false, violates the statute of frauds and therefore

cannot be maintained. Thus, the demurrer to this cause of action must be sustained, without

leave to amend, for this independent reason.

B. The Second Cause of Action For Breach of Written Contract Fails To
DOOQQU’I-FDJN—I

Allege Sufﬁcient Facts To State A Cause Of Action.
The second cause of action fails to state sufﬁcient facts to constitute a claim for breach

of a written contract and the demurrer as to this cause of action should be sustained without

leave to amend since it fails to allege that any consideration or beneﬁt was conferred to

Defendants. See the First Amended Complaint, Exhibit l to RJN, at paragraphs 40.

Civil Code section 1550 states:

It isessential to the existence of a contract that there should be:
(1) Parties capable of contracting;
(2) Their consent;
(3) A lawful object; and
(4) A sufﬁcient cause or consideration.
The demurrer as to the second cause of action for breach of a written contract must be

sustained since the allegations regarding the purported contract fail to meet the

aforementioned elements; the Complaint fails to allege that any consideration or beneﬁt was

conferred to Defendants.

The Demurrer as to the Second Cause of Action For Breach of Written Contract
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should be sustained, without leave to amend, the Complaint cannot be truthfully amended to

remedy this deﬁciency.

C. The Third Cause of Action For Intentional Misrepresentation Fails To
State A Claim And Therefore The Demurrer As To It Should Be Sustained.
The third cause of action for intentional misrepresentation fails to state sufﬁcient facts

to constitute a claim for intentional misrepresentation and the demurrer as to this cause of

action should be sustained without leave to amend for the following independent reasons: (1)

the allegations do not establish that Jimmy Kumosoff has standing to bring the purported

claims of his father Jim Kumosoff; (2) the complaint fails to allege what if any

misrepresentation was made; (3) fraud must be alleged with particularity and the complaint

7
Memorandum of Points and Authorities In Support of Demurrer
fails to allege who made a misrepresentation, to whom the misrepresentation was made, when
and where itwas made; (4) the complaint fails to allege anyone, with standing or otherwise,

reasonably relied on the phantom misrepresentation. See the First Amended Complaint at

paragraphs 46 through 52.

The Demurrer as to the Third Cause of Action For Intentional Misrepresentation
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should be sustained, without leave to amend, since the Complaint cannot be truthfully

amended to remedy this deﬁciency.

D. The Fourth Cause 0f Action For Negligent Misrepresentation Fails To

State A Claim And Therefore The Demurrer As To It Should Be Sustained.
The fourth cause of action fails to state sufﬁcient facts to constitute a claim for

negligent misrepresentation and the demurrer as to this cause of action should be sustained

without leave to amend for the reasons the Third Cause of Action must fail (see above).

E. The Sixth Cause of Action For Declaratory Relief Fails To State A Claim
And Therefore The Demurrer As To It Should Be Sustained.

The sixth cause of action fails to state sufﬁcient facts to constitute a claim for

declaratory relief and the demurrer as to this cause of action should be sustained without leave

to amend.

In addition
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to speciﬁcally alleging that an actual, present controversy exists, Plaintiff

City of Cotati v. Cashman (2002) 52 P.3d 695. Merely alleging that a controversy exists is

not enough; he must plead speciﬁc underlying facts that support that allegation as well. Ibid.

Here, Plaintiff has failed to allege or incorporate any speciﬁc facts in the Sixth Cause

of Action for Declaratory Relief that concern a controversy. See Complaint, at 1m 12-13.

Plaintiff proffers merely a general allegation that an actual controversy exists, but he does not

include any particular or illustrative facts about the controversy.

In Plaintiff’s prayer (14:22-24) he seeks a judicial declaration of his and Ann
Babshoff’s rights with respect to the subject property but the complaint fails to allege what

those rights are and how they have been asserted by Ann Babshoff, which has created a

8
Memorandum of Points and Authorities ln Support of Demurrer
controversy. In fact, paragraph 75 of the complaint is a judicial admission by Plaintiff that

Mr. and Ms. Babshoff do not claim an interest in the subject property. See also First

Amended Complaint, at 1m 12- l 3.

The demurrer as to the Sixth Cause of Action For Declaratory Relief should be

sustained, without leave to amend, as itdoes not appear from the allegations supporting the
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cause of action, that an actual controversy exists or will in the ﬁJture.

F. The Seventh Cause of Action For Quiet Title Fails To State A Claim For
Relief And The Demurrer As To It Should Be Sustained.

The Seventh cause of action fails to state sufﬁcient facts to constitute a claim for quiet

titleand the demurrer as to this cause of action should be sustained without leave to amend.

a. Pursuant to Code of Civil Procedure sections 761.010(b) and 405.22,

Plaintiff was required to record, serve and ﬁle with the court a Notice of Pendency of Action

(or Lis Pendens) against the subject property. Civ. Proc. §§ 761 .010 and 405.22.

Code of Civil Procedure section 761 .010(b) states in relevant part:

“Immediately upon commencement of the action, the plaintiff shall file a notice of
pendency of the action in the office of the county recorder of each county in which
any real property described in the complaint is located.”

Emphasis added. Civ. Proc. §76l.010.
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Code of Civil Procedure section 405.22 states in relevant part:
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“Immediately following recordation, a copy 0f the notice shall also be ﬁled with the
court in which the action is pending.”

Emphasis added. Civ. Proc. §405.22.

Here, there is no allegation 0r reference to any Notice of Pendency of Action in the

Complaint. Further, a review of the docket indicates the absence of any Notice of Pendency

of Action being ﬁled with the Court. The Babshoffs respectfully request the Court to take

judicial notice of its docket and the absence of any Notice of Pendency of Action.

The Complaint is thus defective for Plaintiff’s failure to state facts sufﬁcient to state a

cause of action since Plaintiff has not alleged or referenced in the Complaint nor ﬁled with the

Court, a Notice of Pendency of Action. Thus, the Demurrer to the Seventh Cause of Action

9
Memorandum of Points and Authorities[n Support of Demurrer
for Quiet Title, should be sustained, based upon this independent ground, as a matter of law.

b. Pursuant to subsection (b) of Code of Civil Procedure section 761.020,

the complaint must allege “the speciﬁc facts constituting adverse possession.” While the

allegations in the First Amended Complaint are certainly vague, inconsistent and

contradictory, none can meet the burden of pleading speciﬁc facts as to the purported adverse
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possession. In fact, the allegations appear to indicate that any possession or use by Plaintiff

was consented to by the Babshoffs and not hostile or notorious. See First Amended

Complaint at paragraphs 11, 18, 23, 24, 75, inter alia.

If Plaintiff is asserting a different theory in his petition to quiet title,it isunclear. It is

also important to note that there isno purported grant deed attached to the Veriﬁed Complaint

which purports to grant the Property to Plaintiff, as Plaintiff alleges under oath, and Jim

Kumosoff, Sr.,the original owner, prior t0 1993, isnot a party to this action.

Thus, the Demurrer to the Seventh Cause of Action for Quiet Title, should be

sustained, based upon this independent ground, as a matter of law.

c. Pursuant to subsection (c) of Code of Civil Procedure Section 761 .020,

the Complaint must state the “adverse claims to the title of the plaintiff against which a

determination is sought.” There are no allegations in the Complaint that Plaintiff and Ann

have adverse
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claims regarding a property she no longer owns, a fact admitted in the First
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Amended Complaint. See the First Amended Complaint at paragraph 29 (“On May 25, 201 8,

the Babshoff Defendants recorded a grant deed transferring the 3 Palms Property to Defendant

Faiz Malik.”). Therefore, for this independent ground, the demurrer to the Seventh Cause of

Action for quiet title against the Babshoff Defendants, should be sustained, without leave to

amend.

d. Pursuant to subsection (d) of Code of Civil Procedure Section 761.020,

the First Amended Complaint must include a date or reason why and when a determination is

sought. As it stands, the First Amended Complaint alleges:

“Plaintiff requests a judicial determination of his rights and duties with respect to the 3

Palms Property, including a declaration that Defendant Ann Babshoff (no longer),

10
Memorandum of Points and Authorities ln Support of Demurrer
Defendant Faiz Malik .. . hold any right, title, estate, lien, 0r interest whatosover in

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Document Filed Date

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September 19, 2018

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Motion-Secondary: Kurnosoff v. Babshoff, Jr.

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