DemurrerCal. Super. - 6th Dist.March 2, 2021n->-- >d©\DOO\lO'\U1-I:-U~)l\) »--»-->--»-->--»-n»--»-- \DOO\IO\UI-I:-LoJ£\J DOUGLAS SCOTT MAYNARD (SBN 90649) LAW OFFICES OF MAYNARD & HOGAN 1 151 Minnesota Avenue San Jose, CA 95125 Telephone: (408)293-8500 Facsimile: (408) 293-8507 Attorney for Defendants Michael and Frances Hart, Tracy Hart-DeGregorio, and Gail Hart SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA FREDERICK HART, JR., Case No: 21 CV3 78991 Plaintiff, DEFENDANTS’ NOTICE OF DEMURRER & DEMURRER TO AMENDED COMPLAINT vs. Date: Time: Dept: 7 AP]: Honorable Christopher G. Rudy MICHAEL HART, FRANCES HART, TRACY HART-DEGREGORIO and GAIL HART Defendants. NOTICE OF DEMURRER AND DEMURRER TO AMENDED COMPLAINT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE NOTICE THAT DEF ENDANTS MICHAEL HART, FRANCES HART, TRACY HART-DEGREGORIO AND GAIL HART HEREBY DEMUR TO THE AMENDED COMPLAINT AND EACH AND EVERY CAUSE OF ACTION IN IT. A HEARING ON SAID DEMURRER WILL BE HELD ON AT 9:00 A.M. IN DEPARTMENT _ OF THE ABOVE ENTITLED COURT LOCATED AT 191 N. FIRST STREET, SAN JOSE, CALIFORNIA 95113. DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER T0 AMENDED COMPLAINT Hart v. Hart et 2:]. Case No. 2lCV378991 1 Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/24/2022 12:00 AM Reviewed By: M. Dominguez Case #21CV378991 Envelope: 8117288 21CV378991 Santa Clara - Civil M. Dominguez 9:00 AM 5-3-22 ._ ».-a»-« I-‘O\D0¢\lO'\<.h-I:-U3I\J [\3»a>-->-«>--->-»-«>-- ©\O0O\]O\Ur-B‘-»Jk\) l\) >- ix) IQ Ix) DJ N -l> I\) (/1 IO Ox l\> \! [Q 00 A. GROUNDS FOR DEMURRER TO AMENDED COMPLAINT The demurrer to the AMENDED Complaint is made on the grounds that: THE AMENDED COMPLAINT FAILS TO STATE A CAUSE OF ACTION AGAINST ANY OF THE DEFENDANTS UNDER CODE OF CIV. PROC. §430.10 (e[ FOR THE FOLLOWING REASONS: 1) 6) THE AMENDED COMPLAINT IS DEFECTIVE BECAUSE IT ALLEGES THAT PLAINTIFF INHERITED A 25% INTEREST IN THE PROPERTY WHEN JUDICIALLY NOTICED DOCUMENTS INDICATE THAT HE HAD NO SUCH INHERITANCE. BASED ON THE JUDICIALLY NOTICED DOCUMENTS, PLAINTIFF HAS NO INTEREST IN THE PROPERTY THAT CAN BE PARTITIONED. THE AMENDED COMPLAINT IS INCONSISTENT WITH THE ORIGINAL VERIFIED COMPLAINT, WHERE PLAINTIFF PREVIOUSLY ALLEGED THAT HIS MOTHER DIED INTESTATE AND THAT HE WAS AWARDED A 25% INTEREST IN THE PROPERTY THROUGH AN AWARD OF THE PROBATE COURT. JUDICIALLY NOTICED DOCUMENTS INDICATE THAT THIS IS FALSE. IN THE AMENDED COMPLAINT, PLAINTIFF NOW SAYS THAT HIS MOTHER DIED TESTATE AND LEFT HIM NOTHING, BUT THAT HE HAD AN ORAL AGREEMENT WITH SOME FAMILY MEMBERS TO RECEIVE THE SAME 25% INTEREST, BUT WITHOUT GOING THROUGH THE PROBATE PROCEEDING. INCONSISTENT PLEADING OF THIS SORT IS NOT PERMITTED, AND THE NEW INCONSISTENT ALLEGATIONS SHOULD BE IGNORED. WITHOUT THESE ALLEGATIONS, AND BASED ON THE JUDICIALLY NOTICED DOCUMENTS, PLAINTIFF HAS NO INTEREST IN THE PROPERTY THAT CAN BE PARTITIONED. PLAINTIFF’S ALLEGED ORAL AGREEMENT IS AN AGREEMENT TO COMMIT FRAUD ON THE PROBATE COURT AND ON 2 OTHER HEIRS, AND IS UNENFORCEABLE. BOTH THE ALLEGED ORAL AGREEMENT AND THE DOCUMENT ATTACHED AS EXHIBIT “A” TO THE AMENDED COMPLAINT VIOLATE THE STATUTE OF FRAUDS AS WELL AS CIVIL CODE §l09l AND ARE UNENFORCEABLE. THE DOCUMENT ATTACHED AS EXHIBIT “A” TO THE AMENDED COMPLAINT IS NOT SIGNED BY THE OTHER ALLEGED OWNERS OF THE PROPERTY, AND THUS THE STATUTE OF FRAUDS AND CIVIL CODE §109l INVALIDATE IT. ‘ PLAINTIFF ’S CLAIMS ARE BARRED BY THE PROBATE COURT’S ORDERS THAT WERE ISSUED IN THE ESTATE OF RUTH HART, CASE NO. 1-02-PR- DEF ENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO AMENDED COMPLAINT Hart v. Hart et al. Case No. 21CV378991 2 -F >-- >--»--.-->-n»-- # 00 GNU:-l>LoJl\) O\DO0\lO\U1 >-- \O 20 22 24 26 27 28 150962. DEFENDANTS HAVE ASKED THE COURT TO JUDICIALLY NOTICE THE FILE IN THAT CASE. 7) ORAL AGREEMENT TERMS CANNOT ATTACH TO A DEED, AND PLAINTIFF IS BARRED FROM PURSUING AN INTEREST IN THE PROPERTY BASED ON THE JUDICIALLY NOTICED DEED. SINCE HE HAS NO INTEREST IN THE PROPERTY, PARTITION IS NOT AN AVAILABLE CAUSE OF ACTION TO HIM. B. THE COURT HAS NO JURISDICTION OF THE SUBJECT OF THE CAUSE OF ACTION ALLEGED IN THE PLEADING BECAUSE THIS CLAIM WAS REQUIRED TO BE BROUGHT IN THE PROBATE COURT, IN THE ESTATE OF RUTH HART, CASE NO. 1-02-PR-150962. See, Code of Civ. Proc. §430.10 (a) This motion is based on this notice, Defendants’ accompanying Request For Judicial Notice in Support of Demurrer and the accompanying Memorandum of Points and Authorities. This motion is further based on Code of Civil Procedure §§430.10(a), and (e), 430.30. Respectfully submitted, Dated: Januaiy 23, 2022 éDoug1as Scott Maynard, SBN 90649 Attorney for Defendants DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO AMENDED COMPLAINT Hart V. Hart et al. Case No. 21CV378991 3