REQUEST FOR IMMEDIATE STAY OF PROCEEDINGS - Info To Fight ...



STAY REQUESTED INSERT DATE IF SAY REQUESTEDAPPELLATE DIVISIONNo. ____________YOUR NAME,PetitionerVs.THE SUPERIOR COURT OF INSERT COUNTY/COURT NAME, Respondent,INSERT PLAINTIFF’S NAME,Real Parties of Interest__________________________________________________On Petition for Writ of Mandate from the INSERT COURT NAME,The Honorable INSERT JUDGE/COMMISIONER NAME, Department INSERT #, (INSERT PHONE NUMBER)Superior Court Case No. INSERT CASE NUMBER PETITION FOR WRIT OF MANDATE, IMMEDIATE STAY OF PROCEEDINGS on INSERT DATE AND SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIESINSERT FIRST/LAST NAME,In Pro PerINSERT STREET ADDRESSCITY/STATE/ZIPPHONEFAXEMAILTABLE OF CONTENTSREQUEST FOR IMMEDIATE STAY OF PROCEEDINGS…….5INTRODUCTION…………………………………………………5PETITION FOR WRIT OF MANDATE………………………….6PRAYER……………………………………….………………….11VERIFICATION………………………………….……………….12MEMORANDUM OF POINTS AND AUTHORITIES…………..13Writ Review is Appropriate……………………………………13 Right to Demurrer……………………………………………..13Petitioners Notice of Hearing was Proper……………………..14CONCLUSION……………………………………………………15Certificate of Compliance…………………………………………16TABLE OF AUTHORITIESState CasesPeople v. Superior Court (Stein) 239, Cal. App. 2d 99, 102 (1965) 2 Witkin…………11City of Stockton v. Superior Court (2007) 42 Cal. 4th 730, 74……………… ......…….13Peterson v. Cellco Partnership (2008) 164 Cal.App. 4th 1583, 1589………….………..13Torres v. City of Yorba Linda, Supra 13 Cal.App.4th at p.1040……………..…………13Peterson v. Cellco Partnership, Supra 164 Cal. App. 4th at p. 1589…………………….13Codes of Civil Procedure§ 418.10(c) ………………………………………………………………………………9§ 1166(a)…………………………………………………………………………………10§430.10(c) ……………………………………………………………………………….10§ 1161(a)(3)……………………………………………………………………………...10§ 1788.15…………………………………………………………………………………10§ 1161…………………………………………………………………………………….10§1085……………………………………………………………………………………..10§ 1170…………………………………………………………………………………….13§ 1167, 1167.3, 1170……………………………………………………………………..13§ 1005…………………………………………………………………………………….14§ 1167.4…………………………………………………………………………………..14§ 1170.7…………………………………………………………………………………..14§ 1177…………………………………………………………………………………….14§ 1159-1179.9……………………………………………………………………………14§ 307-106.20……………………………………………………………………………..14Civil Code§ 2924……………………………………………………………………………………10United States CodeTitle 15…………………………………………………………………………………10California Rules of Court3.1320(c)………………………………………………..………………………………143.1320(d)………………………………………………………………………………..14REQUEST FOR IMMEDIATE STAY OF PROCEEDINGSStay [Supersedeas] is hereby requested as to the INSERT COURT NAME Order for Petitioner to file an Answer insert time/date of Answer due. INSERT COURT NAMEINSERT JUDGE NAME AND DEPARTMENT NUMBERINSERT JUDGE’S PHONE NUMBERINTRODUCTIONCalifornia Civil Code is very clear that all complaints must be verified. The trial court denied Petitioner the right to be heard on the merits of her Demurrer including her questioning the validity of attorney verification when client verification was available. Both the United States Supreme Court and the California Appellate Court are very clear that complaints should be verified by the Plaintiff, not attorneys. May a trial court dismiss a Demurrer, without a hearing, that results in a Defendant defending themselves against an improperly (i.e. unverified) complaint? This Court should grant this Petition to prevent a needless and wasteful trial. If the Petition is denied, Petitioner will be forced to incur the costs of preparing an Answer and preparing for trial in a compressed timeline, even though there is no properly verified complaint before the court. In such circumstances, Petitioners only adequate remedy is a writ. III. PETITION FOR WRIT OF MANDATEIn support of the requested writ of mandate, Petitioner, by this verified petition, alleges as follows: Petitioner YOUR NAME is a defendant in the action hereinafter described and is a party beneficially interested herein. Respondent is the Superior Court of COURT NAME (hereinafter “Respondent”); (Superior Court Case No: CASE NUMBER) The Real Parties in Interest are INSERT PLAINTIFFS NAME Agreement. (CUSTOMIZE FOR YOUR SITUTATION – FOLLOWING IS A AN EXAMPLE: On December 8, 2010, Plaintiff filed in Respondent Court against this Petitioner, as defendant, a complaint numbered CASE NUMBER sounding in equity for Unlawful Detainer. A true and correct copy the Summons and Complaint is included as "Exhibit A" of the separately bound appendix of exhibits filed concurrently herewith, and explicitly made a part hereof by reference. The representation of Unlawful Detainer is based on the allegation that Plaintiff has fully complied with the requirements set forth by Statute in Civil Code 2924 and has conducted a non-judicial Transfer, to itself, of Defendant YOUR NAME’s home. The represented “Transfer” incorporated no receipt and exchange of funds or other considerations. Plaintiff further represents having properly served a “3 day notice to Quit” and further represents a service conformance with Statute and the Rules of the Superior Court the Summons and Complaint for Unlawful Detainer.Petitioner appeared specially in Respondent Court on December 20, 2010 (pursuant to the provision of §418.10 of the Code of Civil Procedure) by filing a Motion to Quash service of the summons on the grounds of failure to serve in conformance with Statue. A true and correct copy of Petitioner's Proof of Service, Notice of Motion, Points and Authorities in Support of Motion, Declaration of Kimberly Cromwell in Support of Motion to Quash Service of Process is included as "Exhibit B" of the separately bound appendix of exhibits filed concurrently herewith, and explicitly made a part hereof by reference. On or about December 19, 2010 the Plaintiff claimed a new and second presumptive Service of a Summons and Complaint on Petitioner. A Hearing was held by Respondent Court on December 20, 2010 at approximately 2:30 pm in Department XX of the NAME County Superior Court. An Order respecting Petitioner's Motion to Quash service of summons did not issue; the trial court took the view that the matter of Service of the Summons and Complaint was moot insofar as it was represented to the court by the presumptive Plaintiff that “fresh service” had been performed on December 19, 2010. A copy of the Proof of Services are attached as “Exhibit C”.A transcript of the proceedings of the hearing of the Motion To Quash has been requested; a declaration on its contents is include as “Exhibit D”. On December 23, 2010 Petitioner filed a Motion for Demurrer together with a Memorandum of Points and Authorities at the NAME County Superior Court at COURT ADDRESS. A true and correct copy of the Motion for Demurrer and Points and Authorities in Support of Demurrer is included as “Exhibit E” of the separately- bound appendix of exhibits filed concurrently herewith, and explicitly made a part hereof by reference. Defendant herein presented the Motion for Demurrer with supporting documents to the Clerk of the Court at COURT NAME County Superior Court. In a bizarre flux of events, the Clerk forthwith hand-carried the presented documents to the Chambers of the assigned Judge [JUDGES NAME.] and returned 10 minutes later with a handwritten Order overruling the Demurrer “Exhibit F” , informing Petitioner that the Clerk of the Court, was instructed to NOT calendar the Demurrer and to verbally instruct Petitioner to file an Answer to the Unlawful Detainer within 5 days. The manner in which Petitioner’s proposed Filing was disposed of does not appear to conform with established custom or precedent. This petition for Writ of Mandate is explicitly authorized by statute as outlined in C.C.P.§418.10(c). Petitioner represents that the trial court’s refusal to Calendar a proper Motion, prepared and presented to the Court for Filing and Calendaring in conformance with Statute and the California Rules of Court, is arbitrary and an abuse of judicial discretion. Petitioner further represents that the actions complained of effectively and substantively deny the petitioner the due process guaranteed by both the Constitutions of the State of California and of these United States. Petitioner herein represents that she faces imminent harm, will suffer irreparable loss, and has no other adequate remedy at law, should Respondent Court not be reversed as respect to its Order overruling Petitioner's Demurrer. At least in part, Petitioner will be forced to defend herself to an unverified complaint improperly filed and improperly before the trial court violative of CCP § 1166(a) [requiring that the complaint be properly verified, pursuant to § 430.10 (c) ] ; that there is another action pending between the same parties for the same cause of action; pursuant to CCCP § 1161(a) (3) that prior to commencement of any Complaint for unlawful detainer, there must be a proper foundation in title and right of action to the proposed plaintiff by an actual sale of the subject property in accordance with Section 2924 of the Civil Code, and title must be duly perfected consequent thereto; on the grounds that the three-day notice served on Defendant is defective as there was no attempts to personally serve, nor was it ever personally served on Defendant as required by CCCP § 1161, et. seq., thus it is fatally defective and will not support an unlawful detainer action. By this petition, petitioner seeks an order of this Court vacating the Order overruling the Demurrer and directing the Superior Court to File the Petitioner’s Motion Papers onto the Court Docket. Petitioner has been harmed by the failure of the Superior Court to calendar and conduct a Hearing for adjudication of the issues raised in the moving papers in that petitioner is entitled to a hearing, and the failure of the Superior Court to set the matter for hearing and peremptorily Deny the Motion is an abuse of discretion and a denial of due-process rights. Petitioner has no plain, speedy or adequate remedy in the ordinary course of the law to compel the Superior Court adjudicate the issues in controversy in open court. Mandate pursuant to Code of Civil Procedure section 1085 is the appropriate remedy for failure of the Superior Court to set the matter for hearing. See, e.g., People v. Superior Court (Stein), 239 Cal.App.2d 99, 102 (1965),2 Witkin, California Procedure, Jurisdiction §351, pp. 941-43 (4th ed. 1996). No other petition for writ of mandate or prohibition has been made by or on behalf of petitioner relating to this issue. All actions complained of in this petition occurred within the territorial jurisdiction of the Respondent court. IV. PRAYERWHEREFORE petitioner prays that:1. a peremptory writ of mandate issue from this Court directing the Superior Court to vacate the Order Denying the Petitioner’s Motion for Demurrer;2. an alternative writ of mandate issue from this Court directing the Superior Court to vacate the Order Denying the Petitioner’s Motion for Demurrer and to refile the Motion onto the Docket as un-adjudicated; or in the alternative to show cause before this Court at a specified time and place why the relief prayed for should not be granted, and that3. An immediate stay of proceedings be granted in the COURT NAME County Superior Court with respect to the Unlawful Detainer Case No. CASE NUMBER currently pending against Petitioner; and, 4. Petitioner be granted such other and further relief as this Court deems just. V. VERIFICATION I, YOUR NAME, Pro Per declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this verification was executed on December ___, 2012 Date: DATE ___________, 2012 ____________________________________YOUR NAME,Pro PeraddressVI. MEMORANDUM OF POINTS AND AUTHORITIESWrit Review is AppropriateWrit review of an order overruling a demurrer is governed by “the ordinary standards of demurrer review .?.?.?.” (City of Stockton v. Superior Court (2007) 42 Cal.4th?730, 747.) “[R]eview [of] the complaint [is] de novo to determine whether it contains sufficient facts to state a cause of action. [Citation.]” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th?1583, 1589.) We give the pleading “‘a reasonable interpretation, reading it as a whole and its parts in their context’” (Torres v. City of Yorba Linda, supra, 13 Cal.App.4th?at p. 1041), “accept as true all properly pleaded material facts, as well as facts that may be implied from the properly pleaded facts [citation], and .?.?.?also consider matters that may be judicially noticed,” but “do not assume the truth of contentions, deductions or conclusions of fact or law. [Citation.]” (Peterson v. Cellco Partnership, supra, 164 Cal.App.4th?at p. 1589.) Right to Demurrer Code of Civil Procedure § 1170 specifically recognizes a defendant’s right to either answer or demurrer in an unlawful detainer case. Any demurrer must be filed within five days after service of summons. See CCP § 1167, 1167.3, 1170. CUSTOMIZE: THIS IS AN EXAMPLE: The Motion to Quash Service was granted on December 20, 2010 and Petitioner had until December 27, 2010 to file. (taking into account Friday, December 24th was a judicial holiday, and December 25 and 26 were a Saturday and Sunday respectively). Petition filed well within the five days of service of summons by filing on December 23, 2010. Petitioners Notice of Hearing Was ProperThe Defendant must serve and file a notice of hearing with the Demurrer. The notice must specify a hearing date in accordance with CCP § 1005 Cal. Rules of Ct. 3.1320 (c). California Rules of Court 3.1320 (d) states that demurrer must be set for hearing not more than 35 days after it is filed or on the first date available thereafter. The unlawful detainer statues do not provide for a shortened period of notice of hearing on a demurrer as they do for a motion for quash. (See CCP § 1167.4) and for a summary judgment motion. (see CCP § 1170.7). See CCP § 1177 (except as otherwise provided in CCP § 1159-1179a, rules of practice contained in CCP § 307-1062.20 apply in unlawful detainer actions.) For good cause shown, a judge may order a hearing held on an earlier or later date, on notice prescribed by judge. Cal. Rules of Ct. 3.1320(d). Petitioner used the rules found in CCP § 1005 which requires 16 court days notice on the demurrer plus five calendar days for mailing. Petitioner filed the Demurrer on December 23, 2010, putting the proper date of the Hearing as January 19, 2011. VII. CONCLUSIONFor reasons given, this Court should grant the petition and issue a preemptory writ of mandate directing the respondent court to vacate its December 23, 2010 order and calendar Petitioner’s Demurrer for a hearing. For reasons given, this Court should stay the Unlawful Detainer proceedings until this matter can be resolved. Dated: ____, 2012Respectfully submitted,_______________________________YOUR NAMEPro PerADDRESS/PHONE NUMBERRule 14 (c) CERTIFICATE OF COMPLIANCEThe undersigned certifies that the PETITION FOR WRIT OF MANDATE, REQUEST FOR IMMEDIATE STAY AND SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES uses a proportionately spaced Times New Roman 13-point typeface, that the text of this brief comprises 2,693 words according to the word count provided by Microsoft word processing software.Dated: _____________,2012 ___________________________________ YOUR NAME, Pro Per ................
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