Your Name

xxxx Street Address

City, State
In Propria Persona

IN THE SUPERIOR COURT OF CALIFORNIA

COUNTY OF ​COUNTY​, ​NAME OF COURT

PLAINTIFF NAME Case No. ​XXXXXXXXXX

Plaintiff, NOTICE OF DEMURRER AND DEMURRER TO UNLAWFUL DETAINER COM

REQUEST FOR JUDICIAL NOTICE; MEMORANDUM OF POINTS AND AUTH
v.
Date:
YOUR NAME Time:
Dept:
Defendant.

PLEASE TAKE NOTICE that on ​________________​ at ​________​ in

Department ​____​ of the above entitled court, located at ​Court Address​, Defendant, ​Your

Name​, will and hereby does move the Court for an order sustaining a general demurrer to

the unlawful detainer complaint filed by Plaintiff without leave to amend.

This demurrer is made pursuant to Cal. Code of Civ. Proc. § 1166(a) and Code

Civ. Proc. § 430.10(e) in that the complaint must be verified, and the complaint as

verified by the attorney on its face is improper and without foundation. Lacking proper

verification, the complaint is fatally defective as it does not state facts sufficient to

constitute an unlawful detainer action.

This demurrer is based upon this notice of demurrer, the attached demurrer, the

memorandum of points and authorities, and upon such oral and documentary evidence as

may be presented by Defendant upon the hearing of the demurrer.

 DEMURRER TO PLAINTIFF’S COMPLAINT

Defendant, ​Your Name​ (“Defendant”), hereby generally demurs to the unlawful

detainer complaint filed by Plaintiff, ​Plaintiff Name​ (“Plaintiff”).

GROUNDS FOR DEMURRER

Defendant generally demurs to the unlawful detainer complaint filed by Plaintiff

on the grounds of improper verification of the complaint. An attorney may not verify a

complaint without providing a proper foundation as to why they, and not the client, are

providing the verification. Simply repeating the language of the statute is not adequate.

Regardless, Code of Civ. Proc. § 1166(a) requires that the complaint “set forth the facts”,

and per Code Civ. Proc. § 446, when verification is made by an attorney on information

or belief, as is the case here, “the pleadings shall not otherwise be considered as an

affidavit or declaration establishing the facts therein alleged”. Therefore, without proper

verification, there are no facts; and without facts, there is no complaint; and with no

complaint, there is no jurisdiction for the court to decide anything but its own

jurisdiction, which is in this case it is lacking. Therefore, this complaint should be

dismissed.

DATE: ​Month DD, YYYY BY: ________________________________

​Your Name
In Propria Persona
 REQUEST FOR JUDICIAL NOTICE

Defendant respectfully requests this honorable Court take mandatory judicial notice per

Cal. Evid. Code §451(a) of ​Auto Equity Sales Inc. v Superior ​Court (1962) 57 Cal.2d 450,

establishing the doctrine of ​stare decisis​ in all California courts. Under the doctrine of

stare decisis,​ all tribunals exercising inferior jurisdiction are required to follow decisions

of courts exercising superior jurisdiction. It is not the function of courts exercising

inferior jurisdiction to attempt to overrule decisions of a higher court. A decision of a

court of superior jurisdiction supercedes contrary holdings of inferior tribunals.

DATE: ​Month DD, YYYY BY: ________________________________

​Your Name
In Propria Persona

MEMORANDUM OF POINTS AND AUTHORITIES

 I.

THE COURT IS AUTHORIZED TO GRANT THIS DEMURRER

Per Code of Civ. Proc. § 1170, a defendant in an unlawful detainer proceeding

may answer or demur. The period for noticing the hearing on a demurrer is not set forth

in the unlawful detainer statutes, §§ 1159 through 1179a. However, § 1177 provides that

all provisions of law contained in Part 2 of the Code of Civil Procedure (the ones

applicable to regular civil actions) are otherwise generally applicable to unlawful detainer

actions, unless other procedures are specified in the unlawful detainer statutes. Since the

unlawful detainer statutes do not provide for the timing of a hearing on a demurrer, the

timing for demurrers is governed by Code of Civ. Proc. § 1005, which requires 16

(sixteen) court days notice of the hearing on the demurrer, plus 5 (five) calendar days for

notice by mailing. Thus, this demurrer is properly before the Court and notice is proper.

The failure of the pleading to state facts sufficient to support 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

magistrate 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.

II.
 THE UNLAWFUL DETAINER COMPLAINT IS IMPROPERLY VERIFIED

AND RENDERS THE COMPLAINT GENERALLY DEMURRABLE

The complaint is improperly verified and the complaint is subject to a general

demurrer on that basis.

Jurisdiction in any proceeding is conferred by law (​Ex parte Kearny, 55

C 212; Harrington v Superior Court of County of Placer, 194 C 185, 228 P 15)​ ;

that is, jurisdiction is derived from constitutional or statutory provision (​De La

Montanya v De La Montanya, 112 C 101, 44 P 345; Superior Court of County of

Placer, 194 C 185, 228 P 15)​ . Jurisdiction cannot be conferred by the mere act

of the parties, by any omission on the part of counsel (​Lewis v Superior Court of

San Bernardino County, 21 CA2d 340, 69 P2d 220​), or by any decision, either

implied or direct, that a court may itself make (​Rogers v Cady, 104 C 288, 38 P

81​).

Lack of jurisdiction exists where, though the court has jurisdiction over

subject matter and parties in a fundamental sense, it has no jurisdiction or

power...to act without the occurrence of certain procedural prerequisites

(​Abelleira v District Court of Appeal, 17 C2d 280, 109 P2d 942)​ .

A universal principle as old as the law is that the proceedings of a court

without jurisdiction are a nullity and its judgment therein without effect either on

person or property (​Norwood v Kenfield, 34 C 329; Ex parte Giambonini, 117 C

573, 49 P 732​). Jurisdiction is fundamental and a judgment rendered by a court

that does not have jurisdiction to hear the cause is void ​ab initio​ (​Re Application
of Wyatt, 114 CA 557, 300 P 132; Re Cavitt, 47 CA2d 698, 118 P2d 846​). Thus,

where a judicial tribunal has no jurisdiction of the subject matter on which it

assumes to act, its proceedings are absolutely void in the fullest sense of the term

(​Thaxter v Finn, 178 C 270, 173 P 163; Taliaferro v County of Contra Costas

(1st​ ​ Dist) 182 CA2d 587, 6 Cal Rptr 231)​ .

Since jurisdiction is fundamental to any valid judicial proceeding, the

first question that must be determined by a trial court in any case is that of

jurisdiction (​Cohen v Barrett, 5 C 195; Clary v Haogland, 6 C 685; Dillon v

Dillon, 45 CA 191, 187 P 27; Fitzpatrick v Sonoma County, 97 CA 588, 276 P

113​). A court has jurisdiction to determine its own jurisdiction, for a basic issue

in any case before a tribunal is its power to act, and a court must have authority

to decide that question in the first instance (​Rescue Army v Municipal Court of

Los Angeles, 28 C2d 460, 171 P2d 8, appeal dismissed 331 US 549, 91 L Ed

1666, 67 S Ct 1409; Schaffer v Justice Court of Chico Judicial Dist. (3d Dist)

185 CA2d 405, 8 Cal Rptr 269; Saidi-Tabatabai v Superior Court of Los Angeles

County (2d Dist) 253 CA2d 257, 61 Cal Rptr 510)​ .

Jurisdiction of the subject matter is presumed in courts of record and

general jurisdiction, and facts showing that jurisdiction need not be affirmatively

alleged. But in courts of limited and special jurisdiction, such presumption does

not apply, and every fact necessary to jurisdiction must be alleged (​Doll v Feller,

16 C 432; Adolph M. Schwartz, Inc. v Burnett Pharmacy, 112 CA Supp 781, 295

P 508​).
 In all actions and proceedings commenced in a court of limited/special

jurisdiction which are subject to specific provisions of the Civil Code, the

plaintiff must state facts in the complaint verified by his oath or affidavit, or that

of his attorney, showing that the action has been commenced in a proper court

for the trial of such action or proceeding and is subject to the prescribed

provisions of the Civil Code.

No court or tribunal can acquire jurisdiction by the mere assertion of it

(​Mulligan v Smith, 59 C 206; Re Bonds of Madera Irrig. Dist., 92 C 296, 28 P

272, rehearing denied 92 C 341, 28 P 675​) or where the facts on which

jurisdiction depends are falsely alleged (​Mulligan v Smith, 59 C 206​).

Jurisdiction in any proceeding is conferred by the constitution or by statute, and

any mode thereby prescribed for the acquisition of jurisdiction must be strictly

complied with (​Pinon v Pollard, 69 CA2d 129, 158 P2d 254)​ .

III.

COURTS OF LIMITED OR INFERIOR JURISDICTION ACQUIRE

JURISDICTION ONLY FROM SUFFICIENT PLEADINGS

Reviewing the relevant case law with regards to the instant unlawful detainer

action assists us in piecing together the requirements for jurisdiction. First, courts of

limited/inferior jurisdiction have no inherent judicial power and acquire jurisdiction only

from sufficient pleadings (​Doll v. Feller, 16 Cal. 432.)​. A court has jurisdiction to

determine if it has jurisdiction (​Abelleira v District Court of Appeal, 17 C2d 280, 109

P2d 942​.). The controlling statute for invoking an unlawful detainer court is Code Civ.
Proc., §1166(a), which reads in pertinent part, “The complaint shall: (1) Be verified...; (2)

Set forth the facts [of the complaint].” Code Civ. Proc. §446(a), concerning verification,

reads in pertinent part, "When the verification is made by the attorney for the reason that

the parties are absent from the county where he or she has his or her office...​the pleadings

shall not be considered as an affidavit or declaration establishing the facts therein

alleged​." (​emphasis added​) (See also ​Zavala v. Board of Trustees, 16 Cal. App. 4th

1755.​) The provisions of Code Civ. Proc. §446 are to be strictly construed (​Silcox v.

Lang, 78 Cal. 118, 122 ).​ Code Civ. Proc., §446, does not authorize attorney

verifications where the absence of the party creates no inability on his part to verify

(​DeCamp v. First Kensington Corp., 83 Cal. App. 3D 268 ).​ A verification is an affidavit

(​Star Motor Imports, Inc. v. Superior Court, 88 Cal. App. 3D 201 ).​ An affidavit that

simply repeats the language or substance of the statute is insufficient as stating mere

conclusions of law (​Ricketson v Richardson, 26 Cal. 149 )​. An affidavit on “information

and belief” is hearsay and must be disregarded, and it is “unavailing for any purpose”

whatsoever (​Supra Star Motor Imports, Inc. v. Superior Court)​ . An agent making an

affidavit on behalf of a corporation must set forth under oath their relationship with the

corporation and why they are making it rather than an officer (​Maier Packing Co. v Frey,

5 CA 80, 80 P 875 ).​ An attorney verification of a complaint on information and belief

equals no verification at all, and an unverified complaint does not state facts sufficient to

constitute a cause of action (​Star Motor Imports, Inc. v. Superior Court, supra )​.

IV.
 IT DOES NOT APPEAR THE COURT IN THE INSTANT MATTER HAS

PLEADINGS SUFFICIENT BEFORE IT TO ACQUIRE JURISDICTION

Reviewing the unlawful detainer complaint filed in the instant action (the

“Complaint”) presumably on behalf of the captioned plaintiff, it does not appear the

unlawful detainer court has pleadings before it sufficient to acquire jurisdiction.

Applying the analysis above to the unlawful detainer Complaint:

a. We must employ strict construction with the wisdom of higher courts to guide our

review.

b. The verification appears faulty as it:

∙ Does not explain why the attorney could not have used the telephone, mail, or

Internet to verify the pleading with his client;

∙ Seems to simply repeat the language of the statute;

∙ Does not set forth with specificity in the affidavit the reasons why it is not

made by one of the parties;

∙ Does not aver that the facts are within the knowledge of the attorney;

∙ Does not aver that the attorney is an agent of the plaintiff, a corporation;

∙ The pleading, as an affidavit, does not seem to set forth facts because an

affidavit given on “information and belief” is hearsay and does not constitute

facts;

∙ Strictly construed, Code Civ. Proc. §446(a) disqualifies the pleading as

submitted as an affidavit establishing facts.

 Without a valid verification, and without stated facts, the complaint is not in

compliance with the requirements of Code Civ. Proc. §1166, and without a sufficient

pleading the unlawful detainer court cannot properly acquire jurisdiction to hear the

matter.

V.

CONCLUSION

The unlawful detainer complaint in the instant action is defective and does not

confer jurisdiction upon this honorable Court. The complaint is not properly verified and

is hearsay, and without a verification the complaint fails to satisfy the requirements of

Code Civ. Proc. §1166(a) to therefore invoke jurisdiction. The honorable Court in this

matter is without subject matter jurisdiction and for that reason the court should sustain

Defendant's demurrer.

Furthermore, Defendant brings to this honorable Court's attention what appears to

be a fraud committed upon the court by Plaintiff's attorney, ​ATTORNEY NAME​ (SBN

XXXXXX​), in making what appears to be a false declaration under penalty of perjury,

and encourages the Court on its own motion to sanction ​ATTORNEY NAME​ as it finds

appropriate.

DATE: ​Month DD, YYYY BY: ________________________________

​Your Name
In Propria Persona
 PROOF OF SERVICE

I am over the age of 18 and not a party to this action.

I am a resident of or employed in the county where the mailing occurred.

On ____________________ I served the foregoing document(s) described as:

NOTICE OF DEMURRER AND DEMURRER TO UNLAWFUL DETAINER
COMPLAINT; REQUEST FOR JUDICIAL NOTICE; MEMORANDUM OF
POINTS AND AUTHORITIES​ to the following parties:

PLAINTIFF CORPORATION
PLAINTIFF NAME
STREET ADDRESS
CITY, STATE ZIP

[ ] (By U.S. Mail) I deposited such envelope in the mail at ______________, California
with postage thereon fully prepaid.

[ ] (By Personal Service) I caused such envelope to be delivered by hand via messenger
service to the address above.

[ ] (By Facsimile) I served a true and correct copy by facsimile during regular business
hours to the number(s) listed above. Said transmission was reported complete and
without error.

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

DATED: ______________ _______________________________________

NAME OF PERSON SERVING PAPERS