Preview
Electronically Filed
1 RATTAN DEV. S. DHALIWAL (SB No. 177318) Superior Court of California
DHALIWAL LAW GROUP, Inc. County of San Joaquin
2 2005 De La Cruz Blvd, No 185 2021-12-28 09:59:41
Santa Clara, California 95050
3 Telephone (408) 988-7722 Clerk: Kristy Kobus
Facsimile (408) 988-3345
4 Demurrer
FARSHEED SHOMLOO, ESQ. (SBN 218504) 03/01/2022 09:00 AM in 10C
5 SHOMLOO LAW CORPORATION
6320 Commodore Sloat Drive
6 Los Angeles, California 90048
Phone: (323) 934-3434
7 Fax: (323) 934-3535
8 Attorneys for Defendant Ravinder Singh .
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SAN JOAQUIN
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12 ZAYRA VALENCIA CASE No.: STK-CV-UBC-2021-0007397
13 Plaintiff,
DEFENDANTS NOTICE OF
14 DEMURRER AND DEMURRER THE
v. TO THE FIRST AMENDED
15 COMPLAINT
RAVINDER SINGH and DOES 1-25,
16 inclusive
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Defendants.
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20 TO PLAINTIFF AND THEIR ATTORNEYS OF RECORD:
21 TO PLAINTIFFS AND THEIR ATTORNEY OF RECORD:
22 PLEASE TAKE NOTICE that on -----------------, 2022 at the hour of 9:00 AM or as soon
23 thereafter as the matter may be heard in Department10-C of the above-entitled court located at
24 180 E. Weber Avenue, Stockton, CA, 95202, Defendants will move this court for an order
25 sustaining the following Demurrer to the First Amended Complaint and all its causes of action
26 for not stating facts to constitute any cause of action and for being ambagious and uncertain.
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28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST
AMENDED COMPLAINT
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1 This demurrer is based on this notice, the attached memorandum of points and
2 authorities, declaration of counsel, the documents on file in this case and such further oral and
3 documentary evidence as may be presented at the hearing of this motion.
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5 Dated: December 27, 2022.
6 SHOMLOO LAW CORPORATION
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8 By:
Farsheed Shomloo
___________________________________
FARSHEED SHOMLOO of attorney for
9 Defendant.
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28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST
AMENDED COMPLAINT
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DEMURRER
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Defendants generally and specially demur to the First Amended Complaint, in its entirety
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on the grounds set forth below:
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GENERAL DEMURRER
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1. Defendants generally demurrer to the entire First Amended Complaint and all of its
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causes of action because they do not state facts sufficient to constitute any cause of action. Code
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of Civil Procedure § 430.10(e).
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2. Defendants generally demurrer to the entire First Amended Complaint and all of its
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causes of action because the First Amended Complaint shows on its face that is barred because it
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pleads facts constituting a statute of frauds defense. Gressley v. Williams (1961) 193 CA2d 636,
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640-641.
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SPECIAL DEMURRER
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1. Defendants specially demur to the First Cause of Action for a Breach of
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Contract on the grounds that First Amended Complaint is ambiguous and unintelligible.
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Code of Civil Procedure §430.10(f).
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2. Defendants specially demur to the First Cause of Action for a Breach of
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Contract on the grounds that First Amended Complaint it cannot be ascertained from the pleading
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whether the contract is written, is oral, or is implied by conduct. §430.10(g).
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19 Dated: December 27, 2021.
20 SHOMLOO LAW CORPORATION
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22 By:
Farsheed Shomloo
___________________________________
FARSHEED SHOMLOO of attorney for
23 Defendant.
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28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST
AMENDED COMPLAINT
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MEMORANDUM OF POINTS & AUTHORITY
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I. INTRODUCTION.
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On January 31, 2022, Plaintiff filed her complaint against Defendant for Breach of
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Contract, Quiet Title, Violation of Business and Professions Code Section 17200, Intentional
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Misrepresentation, Breach of Covenant of Good Faith and Fair Dealing. After the parties met and
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conferred, on December 7, 2021, Plaintiff filed her First Amended Complaint for Breach of
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Contract, Specific Performance, Cancellation of Instrument and Quiet Title.
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Based on the exhibits attached to her poorly conjured Complaint and now First Amended
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Complaint (FAC), this much is certain:
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1. On May 1, 2000, The Secretary of Veterans Affairs granted the title of the property
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located at 3350 Van Eden Court in the City of Stockton, County of San Joaquin to
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Ravinder Pal Singh and Ana M. Valenica (Plaintiff’s mother) as joint tenants.
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(Exhibit 1 of the FAC).
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2. On July 13, 2013, shortly before her death, with the consent of Defendant, Ana
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Valencia transferred her 50% ownership interest in the property to her daughter,
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plaintiff Zayra Valencia. Ana passed away on July 24, 2013. (Exhibit 2 of FAC).
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3. On February 28, 2021, Defendant, who has fallen on hard times and cannot afford
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the payments related to the Property, sent a text to Plaintiff suggesting that they sell
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the Property, pay the expenses and “split” the proceeds 50-50. (Exhibit 4 of
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FAC).
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4. In May of 2021, Plaintiff and Defendant, both identifying themselves as “Seller”
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enter into an agreement that Defendant would take $150,000.00 from the proceeds
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of the sale of the property and that Plaintiff would not attempt to get any more
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amount from Defendant after the Property is property is sold. Defendants signed
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that agreement on May 23, 2021. Plaintiff signed the same on May 25, 2021.
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(Exhibit A of Complaint).
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28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST
AMENDED COMPLAINT
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These exhibits make also clear that:
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1. Defendant never agreed to sell his share of the Property to Plaintiff or to anybody
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else.
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2. The only written agreement between the Parties is about the amount that Defendant
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agreed to take from the proceeds of the potential sale of the Property.
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3. There is no specific date for the sale of the Property
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Nevertheless, Plaintiff has reached a fantastical conclusion that Defendant agreed to sell
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his 50% ownership interest in the Property to her for $150,000.00! When he denied the existence
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of such agreement, she sued him. Of her four causes of action three- Breach of Contract, Specific
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Performance and Quiet Title- are based on this imaginary contract.
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II. LEGAL ARGUMENTS.
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A. General Demurrers
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1. Defendant demurs to the first cause of action for breach of
13 Contract and the second cause of action for Specific
Performance on the grounds that they fail to allege facts
14 sufficient to establish any causes of action. CCP § 430.10 (e)
15 Section 425 of Code of Civil Procedure states that a complaint must contain "a statement
16 of the facts constituting the cause of action in ordinary and concise language." A complaint must
17 contain facts which are sufficiently clear and specific to inform both the Court and parties of the
18 nature of the claim and the factual basis of the claim. Code of Civil Procedure §430.10.
19 Furthermore, a complaint "must allege the ultimate facts necessary to the statement of an
20 actionable claim."
21 A complaint, to be sufficient, must contain a statement of facts which, without the aid of
22 other conjectured facts not stated, shows a complete cause of action Going v. Dinwiddie (1890) 86
23 Cal. 633, 637, 25 P. 129; Hawkins v. Oakland Title Ins. Guar. Co. (1958) 165 Cal. App. 2d 116,
24 122, 331 P. 2d 742.
25 “The party against whom a complaint or cross-complaint has been filed may object, by
26 demurrer [ ] on the ground that the pleading does not state facts sufficient to constitute a cause
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28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST
AMENDED COMPLAINT
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of action. Code of Civil Procedure Section 430.10(e); McKenney v. Purepac Pharm. Co., (2008)
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167 Cal. App. 4th 72, 77.
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“The absence of any allegation essential to a cause of action renders it vulnerable to a
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general demurrer.” Linder v. Trifty Oil Co. (2002) 23 Cal 4th 429, 437.
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Here, Plaintiffs’ first cause of action for Breach of Contract and therefore the second cause
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of action for Specific Performance of a contract1 are so hopelessly vague, at times contradictory
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and devoid of factual allegations that Defendant cannot determine the factual basis of the claims
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against him. Moreover, the few material facts that Plaintiff has alleged are patently insufficient to
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state any cause of action, let alone one for Breach of Contract and its derivative cause of action for
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Specific Performance.
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2. Defendant demurs to the first cause of action for Breach of
11 Contract and the second cause of action for Specific
Performance on the grounds that they are barred because they
12 plead facts constituting a statute of frauds defense.
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California Civil Code § 1624(a)(3) states that a contract for the sale of real property, or of
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an interest therein are invalid, unless they, or some note or memorandum thereof, are in writing
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and subscribed by the party to be charged.
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When a complaint affirmatively alleges facts amounting to an affirmative defense, it is
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subject to a demurrer. Halvorsen v. Aramark Unif. Servs., (1998) 65 Cal. App. 4th 1383.
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Whenever it appears on the face of a complaint that the contract sued on is within the
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operation of the statute of frauds, and that it does not meet the requirements of the statute,
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advantage of the invalidity of the contract may appropriately be taken by demurring generally or
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specially." Malerbi & Associates v. Seivert, 191 Cal. App. 2d 760.
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24 To establish the claim for specific performance, Plaintiff must prove breach of contract
as well as the elements essential to grant the equitable remedy including: (1) the inadequacy of
25 the legal remedy, (2) an underlying contract that is just, reasonable, and supported by adequate
consideration; (3) contractual terms that are sufficiently definite to enable the court to know it
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would enforce, and (4) plaintiffs performance, tender, or excuse for nonperformance. (California
27 Real Property Remedies and Damages, CEB, § 5.1.)
28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST
AMENDED COMPLAINT
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A contract for the purchase and sale of real property is required to name the parties thereto
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with reasonable certainty. It must identify, by name or description, the parties to the transaction, a
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seller and a buyer, and show within itself who is the seller and who is the buyer. Where the
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instrument does not name or identify the purchaser, it is inchoate and may be held to be no more
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than a preliminary step in the ultimate transaction contemplated by the parties." Malerbi &
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Associates v. Seivert, 191 Cal. App. 2d 760.
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In the instant case before the Court, of the three documents that Plaintiff has attached to
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her Complaint and FAC, as the written proof of her contract with Defendant to purchase his share
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of the Property, none satisfies requisite elements of the Malerbi opinion for a contract for
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purchase and sale of real property.
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As the written proof of an agreement for the sale and purchase on an interest in the
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Property, Plaintiff has attached a text from Defendant where he laments his financial situation and
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suggests selling the Property and “splitting” the proceeds. There is also a May 2021 agreement
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where both Parties identify themselves as Sellers and Plaintiff only agrees to take a $150,000.00
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from the proceeds of the sale of the Property. That is it. She has not produced any written other
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document that with reasonable certainty identifies, by name or description, the parties to the
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transaction, a seller and a buyer, and show within itself who is the seller and who is the buyer.
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It is clear from the Complaint, the FAC and their attachments that the alleged agreement
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for the Defendant to sell and Plaintiff to buy Defendant’s ownership interest in the Property is
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subject to the statute of frauds defense. As such, the Court must sustain Defendant’s general
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demurrer to the first and second causes of action without leave to amend.
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3. Plaintiff has failed to state a claim for Breach of Contract
22 because her cause of action for Breach of Contract is
procedurally flawed. CCP § 430.10(e).
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When a plaintiff alleges a breach of contract claim, traditionally that plaintiff was required
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to attach the contract to the complaint or plead in terms verbatim. Otoworth v. S. Pac. Trans.
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(1985) 166 Cal. App. 3d 452, 459 (“If the action is base on an alleged breach of a written contract,
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the terms must be set out verbatim in the body of the complaint or a copy of a written instrument
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28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST
AMENDED COMPLAINT
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must be attached and incorporated by reference.”). See also Harris v. Rudin, Richman & Appel,
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(1999) Cal. App. 4th 299, 307.
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In the alternative, a plaintiff may “plead the legal effect of te contract rather than its
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precise language.” Miles v. Deutsche Bank Nat’l Trust Co., (2015) App. 4th 394, 402 (quoting
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Constr. Protective Servs., Inc. V. TIG Specialty Ins. Co., (2002) 29 Cal. 4th 189, 198.
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The problem with Plaintiff’s FAC is that the so called written proof of the Parties’
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agreement has nothing to do with the legal effect that Plaintiff is assigning to the so called
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agreements.
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This inherent conflict in Plaintiff’s FAC cannot be resolved. Therefore, the Court must
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sustain Defendant’s demurrer without leave to amend.
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4. Defendant demurs to the third cause of action for
11 Cancellation of Instrument on the grounds that they fail
to allege facts sufficient to establish any causes of action.
12 CCP § 430.10 (e)
13 California Civic Code § 3412 allows the cancellation of a written instrument, in respect to
14 which there is a reasonable apprehension that if left outstanding it may cause serious injury to a
15 person against whom it is void or voidable.
16 To state a cause of action for Cancellation of instrument a plaintiff must state sufficient
17 allegations to show that if [an instrument] was not cancelled a “reasonable apprehension” of
18 “serious injury” would occur. Malfatti v. Mortgage Elec. Registration Sys. 2012 U.S. Dist. LEXIS
19 16939. Plaintiff has left the allegations for these two crucial elements of a cause of action for
20 Cancellation of Instrument out and therefore the Court must sustain Defendant’s general
21 demurrer. Nor, she has alleged enough facts to show reasonable apprehension of serious injury.
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28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST
AMENDED COMPLAINT
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B. Special Demurrers
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1. The Claim for a cause of action for breach of contract is
2 subject to special demurrer because Defendant cannot
ascertain whether the action is based on written or oral
3 contract. CCP § 430.10(g).
4 California Code of Civil Procedure. § 430.10.(g) allows a special demurrer to a complaint
5 if in an action founded upon a contract, defendant cannot be ascertained from the pleading
6 whether the contract is written, is oral, or is implied by conduct.
7 In this case, Plaintiff has attached a text where Defendant suggest to sell the jointly owned
8 property and split the proceeds and a signed agreement between the parties where Defendant
9 agrees to take $150,000.00 from the proceeds of the sale of the property to her Complaint and
10 FAC. Exhibit 4 of the FAC and Exhibit A of Complaint. As stated before these documents do
11 not constitute a contract where Defendant agrees to sell his share of the property to Plaintiff for
12 $150,000.00 but then in paragraphs.
13 Then, in paragraph 13 of the FAC, Plaintiff states:
14 “Plaintiff [ ] offered to take-over the entirety of the Subject Property, and to pay
15 Defendant [ ] ths sum of $150,000.00, for Defendant’s share of equity in the Subject
16 Property, by electronic mail. A true and correct copy of the aforementioned electronic mail
17 is attached hereto as Exhibit ‘5' and is incorporated by this reference.” FAC paragraph 13.
18 Exhibit 5 is a screen shot of an exchange of 5 texts on three days (April 18th, 19th and 25th
19 of 2021) that seems to be about setting up a meeting. From the pleadings it is not clear how
20 Plaintiff made an OFFER to sell his share to HER for $150,000.00 and where and how Plaintiff
21 accepted the offer. Since what Plaintiff has attached is not adequate, was this offer and
22 acceptance made in person, or telephonically? Or, are there other documents out there that could
23 establish a contract between the Parties?
24 The exhibits to the Compliant and FAC are vague and Defendant cannot ascertain whether
25 the agreement was written or oral. The Court must sustain Defendant’s demurrer without leave to
26 amend.
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28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST
AMENDED COMPLAINT
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2. The Claim for a cause of action for breach of contract is
1 uncertain. CCP § 430.10(f).
2 The court may not consider conclusions of law in a compliant when deciding whether a
3 cause of action has been stated. Going v. Dinwiddie, Supra at 638; Faulkner v. California Toll
4 Bridge Auth. (1953) 40 Cal. 2d 317, 329, 253 P. 2d 659. Mere recitals, references to, or
5 allegations of material facts, which are left to surmise are subject to a special demurrer for
6 uncertainty. Bernstein v. Piller (1950) 98 Cal. App. 2d 441, 443, 220 P. 2d 558. The party
7 against whom an action founded upon a contract has been filed may object to the complaint “if the
8 pleading is uncertain, ambiguous or unintelligible.” Code of Civil Procedure § 430.10(f).
9 To state a cause of action for breach of contact a party must allege (1) the existence of the
10 contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendant's breach, and (4)
11 the resulting damages to the plaintiff." Oasis West Realty, LLC v. Goldman, (2011) 51 Cal. 4th
12 811, 821. The most obvious deficiency in the Cross-complaint is that Cross-complainant has
13 failed to allege the second element to maintain a cause of action for breach of contract.
14 Furthermore, lack of clarity in pleading of allegations of material facts which are left to
15 surmise, and statement of facts which cannot be understood without the aid of other conjectured
16 facts have all aided the courts in sustaining demurrers." See generally, Crow v. Hildreth (1870) 39
17 Cal. 618, 620, Bernstein v. Piller (1950) 98 Cal. App. 2d 441,443 and Going V. Dinwiddie (1890)
18 86 Cal. 633, 637.
19 For the exact reasons as above, Plaintiff’s cause of action for Breach of Contract and by
20 extension the third cause of action for Specific Performance of that contract is uncertain. Plaintiff
21 will not be able to cure these uncertainties and deficiencies and therefore the Court must sustain
22 Defendant’s demurrer without leave to amend.
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28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST
AMENDED COMPLAINT
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III. CONCLUSION.
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For the foregoing, the Court must sustain Defendants’ demurrer.
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Dated: December 27, 2021.
4 SHOMLOO LAW CORPORATION
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6 By:
Farsheed Shomloo
___________________________________
FARSHEED SHOMLOO of attorney for
7 Defendant.
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28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST
AMENDED COMPLAINT
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DECLARATION OF FARSHEED SHOMLOO
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1. I am an attorney duly licenced to practice in the State of California. I am of the attorneys
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representing Defendant in this matter and make this declaration based on my own personal
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knowledge, information and belief and can competently testify if called upon.
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2. Pursuant to CCP 430.41, on December 13, 2021, with the purpose of meeting and
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conferring with him before filing Defendant’s demurrer to the First Amended Complaint, I
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called Mr. Jerome Clay, who represents Plaintiffs in this matter. We spoke at length but I
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could not convince Mr. Clay to amend his client’s First Amended Complaint.
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I declare under penalty of perjury under the laws of the State of California that the forgoing is true
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and correct. I have executed this declaration, on December 27, 2021 in Los Angeles, California.
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Farsheed Shomloo
___________________________________
FARSHEED SHOMLOO
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28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST
AMENDED COMPLAINT
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PROOF OF SERVICE
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STATE OF CALIFORNIA
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COUNTY OF LOS ANGELES
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I am employed in the County of Los Angeles, State of California. I am over the age of 18
4 and not a party to the within action. My business address is 6320 Commodore Sloat Drive, Los
Angeles, California 90048.
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On December 27, 2021, I served
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NOTICE OF MOTION AND MOTION TO CONSOLIDATE CASES;
7 MEMORANDUM OF POINTS AND AUTHORITIES
8 on Plaintiff’s attorney in this action by emailing the same to:
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Jerome Clay, Esq.
10 Law Office of Jerome Clay
11 Jclay7@claylaw.net
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9 (BY MAIL)
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9 I deposited such envelope in the mail at Los Angeles, California. The envelope
14 was mailed with postage thereon fully prepaid.
15 9 I am readily familiar with the business practice of my place of employment in
respect to the collection and processing of correspondence, pleadings and notices for mailing with
16 United States Postal Service. The foregoing sealed envelope was placed for collection and
mailing this date consistent with the ordinary business practice of my place of employment, so
17 that it will be picked up this date with postage thereon fully prepaid at Los Angeles, California, in
the ordinary course of such business.
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9 (BY FEDERAL EXPRESS) I am readily familiar with the business practice of my place
19 of employment in respect to the collection and processing of correspondence, pleadings and
notices for delivery by Federal Express. Under the practice it would be deposited with Federal
20 Express on that same day with postage thereon fully prepared at Los Angeles, California in the
ordinary course of business. I am aware that on motion of the party served, service is presumed
21 invalid if delivery by Federal Express is more than one day after date of deposit with Federal
Express.
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9 (BY FACSIMILE) On ______________, I transmitted the foregoing document(s) by
23 facsimile sending number. Pursuant to rule 2009(i)(4), I caused the machine to print a
transmission record of the transmission, a true and correct copy of which is attached to this
24 declaration.
25 : (BY EMAIL) On December 27, 2021 I transmitted the foregoing document(s) by email to
the attached email addresses.
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AMENDED COMPLAINT
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9 (BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the
1 addressee.
2 9 (STATE) I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
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4 9 (FEDERAL) I declare under penalty of perjury that the foregoing is true and correct, and
that I am employed at the office of a member of the bar of this Court at whose direction the
5 service was made.
6 Executed on December 27, 2021 at Los Angeles, California.
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Farsheed Shomloo
Farsheed Shomloo
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Preview
Electronically Filed 1 RATTAN DEV. S. DHALIWAL (SB No. 177318) Superior Court of California DHALIWAL LAW GROUP, Inc. County of San Joaquin 2 2005 De La Cruz Blvd, No 185 2021-12-28 09:59:41 Santa Clara, California 95050 3 Telephone (408) 988-7722 Clerk: Kristy Kobus Facsimile (408) 988-3345 4 Demurrer FARSHEED SHOMLOO, ESQ. (SBN 218504) 03/01/2022 09:00 AM in 10C 5 SHOMLOO LAW CORPORATION 6320 Commodore Sloat Drive 6 Los Angeles, California 90048 Phone: (323) 934-3434 7 Fax: (323) 934-3535 8 Attorneys for Defendant Ravinder Singh . 9 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SAN JOAQUIN 11 12 ZAYRA VALENCIA CASE No.: STK-CV-UBC-2021-0007397 13 Plaintiff, DEFENDANTS NOTICE OF 14 DEMURRER AND DEMURRER THE v. TO THE FIRST AMENDED 15 COMPLAINT RAVINDER SINGH and DOES 1-25, 16 inclusive 17 Defendants. 18 19 20 TO PLAINTIFF AND THEIR ATTORNEYS OF RECORD: 21 TO PLAINTIFFS AND THEIR ATTORNEY OF RECORD: 22 PLEASE TAKE NOTICE that on -----------------, 2022 at the hour of 9:00 AM or as soon 23 thereafter as the matter may be heard in Department10-C of the above-entitled court located at 24 180 E. Weber Avenue, Stockton, CA, 95202, Defendants will move this court for an order 25 sustaining the following Demurrer to the First Amended Complaint and all its causes of action 26 for not stating facts to constitute any cause of action and for being ambagious and uncertain. 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 1 1 This demurrer is based on this notice, the attached memorandum of points and 2 authorities, declaration of counsel, the documents on file in this case and such further oral and 3 documentary evidence as may be presented at the hearing of this motion. 4 5 Dated: December 27, 2022. 6 SHOMLOO LAW CORPORATION 7 8 By: Farsheed Shomloo ___________________________________ FARSHEED SHOMLOO of attorney for 9 Defendant. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 2 DEMURRER 1 Defendants generally and specially demur to the First Amended Complaint, in its entirety 2 on the grounds set forth below: 3 GENERAL DEMURRER 4 1. Defendants generally demurrer to the entire First Amended Complaint and all of its 5 causes of action because they do not state facts sufficient to constitute any cause of action. Code 6 of Civil Procedure § 430.10(e). 7 2. Defendants generally demurrer to the entire First Amended Complaint and all of its 8 causes of action because the First Amended Complaint shows on its face that is barred because it 9 pleads facts constituting a statute of frauds defense. Gressley v. Williams (1961) 193 CA2d 636, 10 640-641. 11 SPECIAL DEMURRER 12 1. Defendants specially demur to the First Cause of Action for a Breach of 13 Contract on the grounds that First Amended Complaint is ambiguous and unintelligible. 14 Code of Civil Procedure §430.10(f). 15 2. Defendants specially demur to the First Cause of Action for a Breach of 16 Contract on the grounds that First Amended Complaint it cannot be ascertained from the pleading 17 whether the contract is written, is oral, or is implied by conduct. §430.10(g). 18 19 Dated: December 27, 2021. 20 SHOMLOO LAW CORPORATION 21 22 By: Farsheed Shomloo ___________________________________ FARSHEED SHOMLOO of attorney for 23 Defendant. 24 25 26 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 1 MEMORANDUM OF POINTS & AUTHORITY 1 2 I. INTRODUCTION. 3 On January 31, 2022, Plaintiff filed her complaint against Defendant for Breach of 4 Contract, Quiet Title, Violation of Business and Professions Code Section 17200, Intentional 5 Misrepresentation, Breach of Covenant of Good Faith and Fair Dealing. After the parties met and 6 conferred, on December 7, 2021, Plaintiff filed her First Amended Complaint for Breach of 7 Contract, Specific Performance, Cancellation of Instrument and Quiet Title. 8 Based on the exhibits attached to her poorly conjured Complaint and now First Amended 9 Complaint (FAC), this much is certain: 10 1. On May 1, 2000, The Secretary of Veterans Affairs granted the title of the property 11 located at 3350 Van Eden Court in the City of Stockton, County of San Joaquin to 12 Ravinder Pal Singh and Ana M. Valenica (Plaintiff’s mother) as joint tenants. 13 (Exhibit 1 of the FAC). 14 2. On July 13, 2013, shortly before her death, with the consent of Defendant, Ana 15 Valencia transferred her 50% ownership interest in the property to her daughter, 16 plaintiff Zayra Valencia. Ana passed away on July 24, 2013. (Exhibit 2 of FAC). 17 3. On February 28, 2021, Defendant, who has fallen on hard times and cannot afford 18 the payments related to the Property, sent a text to Plaintiff suggesting that they sell 19 the Property, pay the expenses and “split” the proceeds 50-50. (Exhibit 4 of 20 FAC). 21 4. In May of 2021, Plaintiff and Defendant, both identifying themselves as “Seller” 22 enter into an agreement that Defendant would take $150,000.00 from the proceeds 23 of the sale of the property and that Plaintiff would not attempt to get any more 24 amount from Defendant after the Property is property is sold. Defendants signed 25 that agreement on May 23, 2021. Plaintiff signed the same on May 25, 2021. 26 (Exhibit A of Complaint). 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 2 These exhibits make also clear that: 1 1. Defendant never agreed to sell his share of the Property to Plaintiff or to anybody 2 else. 3 2. The only written agreement between the Parties is about the amount that Defendant 4 agreed to take from the proceeds of the potential sale of the Property. 5 3. There is no specific date for the sale of the Property 6 Nevertheless, Plaintiff has reached a fantastical conclusion that Defendant agreed to sell 7 his 50% ownership interest in the Property to her for $150,000.00! When he denied the existence 8 of such agreement, she sued him. Of her four causes of action three- Breach of Contract, Specific 9 Performance and Quiet Title- are based on this imaginary contract. 10 II. LEGAL ARGUMENTS. 11 A. General Demurrers 12 1. Defendant demurs to the first cause of action for breach of 13 Contract and the second cause of action for Specific Performance on the grounds that they fail to allege facts 14 sufficient to establish any causes of action. CCP § 430.10 (e) 15 Section 425 of Code of Civil Procedure states that a complaint must contain "a statement 16 of the facts constituting the cause of action in ordinary and concise language." A complaint must 17 contain facts which are sufficiently clear and specific to inform both the Court and parties of the 18 nature of the claim and the factual basis of the claim. Code of Civil Procedure §430.10. 19 Furthermore, a complaint "must allege the ultimate facts necessary to the statement of an 20 actionable claim." 21 A complaint, to be sufficient, must contain a statement of facts which, without the aid of 22 other conjectured facts not stated, shows a complete cause of action Going v. Dinwiddie (1890) 86 23 Cal. 633, 637, 25 P. 129; Hawkins v. Oakland Title Ins. Guar. Co. (1958) 165 Cal. App. 2d 116, 24 122, 331 P. 2d 742. 25 “The party against whom a complaint or cross-complaint has been filed may object, by 26 demurrer [ ] on the ground that the pleading does not state facts sufficient to constitute a cause 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 3 of action. Code of Civil Procedure Section 430.10(e); McKenney v. Purepac Pharm. Co., (2008) 1 167 Cal. App. 4th 72, 77. 2 “The absence of any allegation essential to a cause of action renders it vulnerable to a 3 general demurrer.” Linder v. Trifty Oil Co. (2002) 23 Cal 4th 429, 437. 4 Here, Plaintiffs’ first cause of action for Breach of Contract and therefore the second cause 5 of action for Specific Performance of a contract1 are so hopelessly vague, at times contradictory 6 and devoid of factual allegations that Defendant cannot determine the factual basis of the claims 7 against him. Moreover, the few material facts that Plaintiff has alleged are patently insufficient to 8 state any cause of action, let alone one for Breach of Contract and its derivative cause of action for 9 Specific Performance. 10 2. Defendant demurs to the first cause of action for Breach of 11 Contract and the second cause of action for Specific Performance on the grounds that they are barred because they 12 plead facts constituting a statute of frauds defense. 13 California Civil Code § 1624(a)(3) states that a contract for the sale of real property, or of 14 an interest therein are invalid, unless they, or some note or memorandum thereof, are in writing 15 and subscribed by the party to be charged. 16 When a complaint affirmatively alleges facts amounting to an affirmative defense, it is 17 subject to a demurrer. Halvorsen v. Aramark Unif. Servs., (1998) 65 Cal. App. 4th 1383. 18 Whenever it appears on the face of a complaint that the contract sued on is within the 19 operation of the statute of frauds, and that it does not meet the requirements of the statute, 20 advantage of the invalidity of the contract may appropriately be taken by demurring generally or 21 specially." Malerbi & Associates v. Seivert, 191 Cal. App. 2d 760. 22 23 1 24 To establish the claim for specific performance, Plaintiff must prove breach of contract as well as the elements essential to grant the equitable remedy including: (1) the inadequacy of 25 the legal remedy, (2) an underlying contract that is just, reasonable, and supported by adequate consideration; (3) contractual terms that are sufficiently definite to enable the court to know it 26 would enforce, and (4) plaintiffs performance, tender, or excuse for nonperformance. (California 27 Real Property Remedies and Damages, CEB, § 5.1.) 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 4 A contract for the purchase and sale of real property is required to name the parties thereto 1 with reasonable certainty. It must identify, by name or description, the parties to the transaction, a 2 seller and a buyer, and show within itself who is the seller and who is the buyer. Where the 3 instrument does not name or identify the purchaser, it is inchoate and may be held to be no more 4 than a preliminary step in the ultimate transaction contemplated by the parties." Malerbi & 5 Associates v. Seivert, 191 Cal. App. 2d 760. 6 In the instant case before the Court, of the three documents that Plaintiff has attached to 7 her Complaint and FAC, as the written proof of her contract with Defendant to purchase his share 8 of the Property, none satisfies requisite elements of the Malerbi opinion for a contract for 9 purchase and sale of real property. 10 As the written proof of an agreement for the sale and purchase on an interest in the 11 Property, Plaintiff has attached a text from Defendant where he laments his financial situation and 12 suggests selling the Property and “splitting” the proceeds. There is also a May 2021 agreement 13 where both Parties identify themselves as Sellers and Plaintiff only agrees to take a $150,000.00 14 from the proceeds of the sale of the Property. That is it. She has not produced any written other 15 document that with reasonable certainty identifies, by name or description, the parties to the 16 transaction, a seller and a buyer, and show within itself who is the seller and who is the buyer. 17 It is clear from the Complaint, the FAC and their attachments that the alleged agreement 18 for the Defendant to sell and Plaintiff to buy Defendant’s ownership interest in the Property is 19 subject to the statute of frauds defense. As such, the Court must sustain Defendant’s general 20 demurrer to the first and second causes of action without leave to amend. 21 3. Plaintiff has failed to state a claim for Breach of Contract 22 because her cause of action for Breach of Contract is procedurally flawed. CCP § 430.10(e). 23 When a plaintiff alleges a breach of contract claim, traditionally that plaintiff was required 24 to attach the contract to the complaint or plead in terms verbatim. Otoworth v. S. Pac. Trans. 25 (1985) 166 Cal. App. 3d 452, 459 (“If the action is base on an alleged breach of a written contract, 26 the terms must be set out verbatim in the body of the complaint or a copy of a written instrument 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 5 must be attached and incorporated by reference.”). See also Harris v. Rudin, Richman & Appel, 1 (1999) Cal. App. 4th 299, 307. 2 In the alternative, a plaintiff may “plead the legal effect of te contract rather than its 3 precise language.” Miles v. Deutsche Bank Nat’l Trust Co., (2015) App. 4th 394, 402 (quoting 4 Constr. Protective Servs., Inc. V. TIG Specialty Ins. Co., (2002) 29 Cal. 4th 189, 198. 5 The problem with Plaintiff’s FAC is that the so called written proof of the Parties’ 6 agreement has nothing to do with the legal effect that Plaintiff is assigning to the so called 7 agreements. 8 This inherent conflict in Plaintiff’s FAC cannot be resolved. Therefore, the Court must 9 sustain Defendant’s demurrer without leave to amend. 10 4. Defendant demurs to the third cause of action for 11 Cancellation of Instrument on the grounds that they fail to allege facts sufficient to establish any causes of action. 12 CCP § 430.10 (e) 13 California Civic Code § 3412 allows the cancellation of a written instrument, in respect to 14 which there is a reasonable apprehension that if left outstanding it may cause serious injury to a 15 person against whom it is void or voidable. 16 To state a cause of action for Cancellation of instrument a plaintiff must state sufficient 17 allegations to show that if [an instrument] was not cancelled a “reasonable apprehension” of 18 “serious injury” would occur. Malfatti v. Mortgage Elec. Registration Sys. 2012 U.S. Dist. LEXIS 19 16939. Plaintiff has left the allegations for these two crucial elements of a cause of action for 20 Cancellation of Instrument out and therefore the Court must sustain Defendant’s general 21 demurrer. Nor, she has alleged enough facts to show reasonable apprehension of serious injury. 22 /// 23 /// 24 /// 25 /// 26 /// 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 6 B. Special Demurrers 1 1. The Claim for a cause of action for breach of contract is 2 subject to special demurrer because Defendant cannot ascertain whether the action is based on written or oral 3 contract. CCP § 430.10(g). 4 California Code of Civil Procedure. § 430.10.(g) allows a special demurrer to a complaint 5 if in an action founded upon a contract, defendant cannot be ascertained from the pleading 6 whether the contract is written, is oral, or is implied by conduct. 7 In this case, Plaintiff has attached a text where Defendant suggest to sell the jointly owned 8 property and split the proceeds and a signed agreement between the parties where Defendant 9 agrees to take $150,000.00 from the proceeds of the sale of the property to her Complaint and 10 FAC. Exhibit 4 of the FAC and Exhibit A of Complaint. As stated before these documents do 11 not constitute a contract where Defendant agrees to sell his share of the property to Plaintiff for 12 $150,000.00 but then in paragraphs. 13 Then, in paragraph 13 of the FAC, Plaintiff states: 14 “Plaintiff [ ] offered to take-over the entirety of the Subject Property, and to pay 15 Defendant [ ] ths sum of $150,000.00, for Defendant’s share of equity in the Subject 16 Property, by electronic mail. A true and correct copy of the aforementioned electronic mail 17 is attached hereto as Exhibit ‘5' and is incorporated by this reference.” FAC paragraph 13. 18 Exhibit 5 is a screen shot of an exchange of 5 texts on three days (April 18th, 19th and 25th 19 of 2021) that seems to be about setting up a meeting. From the pleadings it is not clear how 20 Plaintiff made an OFFER to sell his share to HER for $150,000.00 and where and how Plaintiff 21 accepted the offer. Since what Plaintiff has attached is not adequate, was this offer and 22 acceptance made in person, or telephonically? Or, are there other documents out there that could 23 establish a contract between the Parties? 24 The exhibits to the Compliant and FAC are vague and Defendant cannot ascertain whether 25 the agreement was written or oral. The Court must sustain Defendant’s demurrer without leave to 26 amend. 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 7 2. The Claim for a cause of action for breach of contract is 1 uncertain. CCP § 430.10(f). 2 The court may not consider conclusions of law in a compliant when deciding whether a 3 cause of action has been stated. Going v. Dinwiddie, Supra at 638; Faulkner v. California Toll 4 Bridge Auth. (1953) 40 Cal. 2d 317, 329, 253 P. 2d 659. Mere recitals, references to, or 5 allegations of material facts, which are left to surmise are subject to a special demurrer for 6 uncertainty. Bernstein v. Piller (1950) 98 Cal. App. 2d 441, 443, 220 P. 2d 558. The party 7 against whom an action founded upon a contract has been filed may object to the complaint “if the 8 pleading is uncertain, ambiguous or unintelligible.” Code of Civil Procedure § 430.10(f). 9 To state a cause of action for breach of contact a party must allege (1) the existence of the 10 contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendant's breach, and (4) 11 the resulting damages to the plaintiff." Oasis West Realty, LLC v. Goldman, (2011) 51 Cal. 4th 12 811, 821. The most obvious deficiency in the Cross-complaint is that Cross-complainant has 13 failed to allege the second element to maintain a cause of action for breach of contract. 14 Furthermore, lack of clarity in pleading of allegations of material facts which are left to 15 surmise, and statement of facts which cannot be understood without the aid of other conjectured 16 facts have all aided the courts in sustaining demurrers." See generally, Crow v. Hildreth (1870) 39 17 Cal. 618, 620, Bernstein v. Piller (1950) 98 Cal. App. 2d 441,443 and Going V. Dinwiddie (1890) 18 86 Cal. 633, 637. 19 For the exact reasons as above, Plaintiff’s cause of action for Breach of Contract and by 20 extension the third cause of action for Specific Performance of that contract is uncertain. Plaintiff 21 will not be able to cure these uncertainties and deficiencies and therefore the Court must sustain 22 Defendant’s demurrer without leave to amend. 23 /// 24 /// 25 /// 26 /// 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 8 III. CONCLUSION. 1 For the foregoing, the Court must sustain Defendants’ demurrer. 2 3 Dated: December 27, 2021. 4 SHOMLOO LAW CORPORATION 5 6 By: Farsheed Shomloo ___________________________________ FARSHEED SHOMLOO of attorney for 7 Defendant. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 9 DECLARATION OF FARSHEED SHOMLOO 1 1. I am an attorney duly licenced to practice in the State of California. I am of the attorneys 2 representing Defendant in this matter and make this declaration based on my own personal 3 knowledge, information and belief and can competently testify if called upon. 4 2. Pursuant to CCP 430.41, on December 13, 2021, with the purpose of meeting and 5 conferring with him before filing Defendant’s demurrer to the First Amended Complaint, I 6 called Mr. Jerome Clay, who represents Plaintiffs in this matter. We spoke at length but I 7 could not convince Mr. Clay to amend his client’s First Amended Complaint. 8 I declare under penalty of perjury under the laws of the State of California that the forgoing is true 9 and correct. I have executed this declaration, on December 27, 2021 in Los Angeles, California. 10 11 12 Farsheed Shomloo ___________________________________ FARSHEED SHOMLOO 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 10 PROOF OF SERVICE 1 STATE OF CALIFORNIA 2 COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles, State of California. I am over the age of 18 4 and not a party to the within action. My business address is 6320 Commodore Sloat Drive, Los Angeles, California 90048. 5 On December 27, 2021, I served 6 NOTICE OF MOTION AND MOTION TO CONSOLIDATE CASES; 7 MEMORANDUM OF POINTS AND AUTHORITIES 8 on Plaintiff’s attorney in this action by emailing the same to: 9 Jerome Clay, Esq. 10 Law Office of Jerome Clay 11 Jclay7@claylaw.net 12 9 (BY MAIL) 13 9 I deposited such envelope in the mail at Los Angeles, California. The envelope 14 was mailed with postage thereon fully prepaid. 15 9 I am readily familiar with the business practice of my place of employment in respect to the collection and processing of correspondence, pleadings and notices for mailing with 16 United States Postal Service. The foregoing sealed envelope was placed for collection and mailing this date consistent with the ordinary business practice of my place of employment, so 17 that it will be picked up this date with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of such business. 18 9 (BY FEDERAL EXPRESS) I am readily familiar with the business practice of my place 19 of employment in respect to the collection and processing of correspondence, pleadings and notices for delivery by Federal Express. Under the practice it would be deposited with Federal 20 Express on that same day with postage thereon fully prepared at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed 21 invalid if delivery by Federal Express is more than one day after date of deposit with Federal Express. 22 9 (BY FACSIMILE) On ______________, I transmitted the foregoing document(s) by 23 facsimile sending number. Pursuant to rule 2009(i)(4), I caused the machine to print a transmission record of the transmission, a true and correct copy of which is attached to this 24 declaration. 25 : (BY EMAIL) On December 27, 2021 I transmitted the foregoing document(s) by email to the attached email addresses. 26 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 11 9 (BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the 1 addressee. 2 9 (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 3 4 9 (FEDERAL) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed at the office of a member of the bar of this Court at whose direction the 5 service was made. 6 Executed on December 27, 2021 at Los Angeles, California. 7 8 Farsheed Shomloo Farsheed Shomloo 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER THE TO THE FIRST AMENDED COMPLAINT 12