1 Jeremy J.

Alberts (SBN 273290)

Law Office of Jeremy J. Alberts
2
214 N. Malden Ave.
3 Fullerton, CA 92832
(949) 774-0406
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Attorney for Defendant, Ernie Luna
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
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Bank of America, Case No.: 30-2011-00459754
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Plaintiff, NOTICE OF MOTION; MOTION TO
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STRIKE PLAINTIFF’S COMPLAINT;
14 v. SUPPORTING MEMORANDUM;
[PROPOSED] ORDER
15 Ernie Luna , an Individual,
16 Defendant.
17
18
19 MEMORANDUM OF POINTS AND AUTHORTIES
20 I. INTRODUCTION
21 The unlawful detainer complaint filed by Plaintiff, Bank of America (“Plaintiff”), is
22 without proper verification. The verification attached to the Complaint is signed and verified by
23 Plaintiff’s attorney; not Plaintiff nor an agent for Plaintiff. The verification states in pertinent part:
24 “Such party (Bank of America) is absent from the county aforesaid where such attorneys have their
25 office and make the verification for and on behalf of that party for that reason.”
26 II. LEGAL ARGUMENT
27 A. THE COURT IS AUTHORIZED TO GRANT THIS MOTION TO STRIKE
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NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER
 1 Code of Civil Procedure § 436 states in pertinent part that a Motion to Strike may be filed to
2 strike any irrelevant matter inserted in any pleading, and to strike any pleading or part thereof not
3 drawn in conformity with the laws of this state. Plaintiff’s Complaint is not drawn in conformity
4 with the laws of California because they failed to properly verify the Complaint according to Code of
5 Civil Procedure § 1166(a)(1).
6 B. THE COURT MAY STRIKE PLAINTIFF’S COMPLAINT IN ITS ENTIRETY FOR
7 FAILURE TO VERIFY THE COMPLAINT
8 According to Code of Civil Procedure § 1166(a)(1), an unlawful detainer complaint must be
9 verified. If unverified, the complaint may be stricken in its entirety pursuant to a motion to strike.
10 Code of Civil Procedure § 436(b). Plaintiff’s Complaint is verified by his counsel of record in this
11 case.
12 Verification must substantially comply with Code of Civil Procedure § 446. The test is
13 whether it is sufficiently clear and certain to subject the party to perjury prosecution if material
14 statements are false. [Ancora-Citronelle Corp. v. Green (1974) 41 Cal. App. 3d 146, 150.] While
15 Plaintiff’s counsel states in the verification that Bank of America is absent from the county where his
16 office is located but his office is located in Orange County. The Court could judicially notice the fact
17 that Bank of America indeed has employees in Orange County. Plus, the courts have construed CCP
18 § 446 to permit attorney verification only where the client’s absence from the county makes it
19 impractical or impossible to obtain the client’s signature. If the client can be reached by mail, no
20 such impossibility exists … and attorney verification is not allowed. [DeCamp v. First Kensington
21 Corp. (1978) 83 Cal. App. 3d 268, 275 – verification of answer.]
22 As Plaintiff’s Complaint is unverified, it has not been drawn in conformity with the laws of
23 this state and should be stricken in its entirety.
24 ///
25 ///
26 ///
27 ///
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NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER
 1 III. CONCLUSION
2 Defendant respectfully requests that the Court grant the Motion to Strike as Plaintiff has failed
3 to properly verify the Complaint.
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5 DATED: December 9, 2021 Respectfully submitted,
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JEREMY J. ALBERTS
8 Attorney for Defendant,
Ernie Luna
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NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER
 Jeremy J. Alberts (SBN 273290)
1
Law Office of Jeremy J. Alberts
2 214 N. Malden Ave.
Fullerton, CA 92832
3 (949) 774-0406
4 Attorney for Defendant, Ernie Luna
5
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF ORANGE , CENTRAL JUSTICE CENTER

10
Bank of America , Case No.: 30-2011-00459754
11
12 Plaintiff,
[PROPOSED] ORDER
13 v.

14 Ernie Luna , an Individual,

15 Defendant.
16
17 TO ALL PARTIES AND THEIR ATTORNEY’S OF RECORD:

18 The motion of Defendant to strike Plaintiff’s Complaint came on for hearing in Department

19 ______ of this Court on ______________________. Having read the motion, the memoranda filed

20 by the parties, and having heard argument of counsel, IT IS ORDERED THAT:

21 [The motion to strike is granted. The Complaint shall be stricken in its entirety. Plaintiff is

22 granted leave to amend within ______ days of the date of service of notice of entry of this order.]

23 [or]

24 [The motion to strike is denied. Defendant shall answer the complaint within _____ days of

25 the date of service of notice of entry of this order.]

26 IT IS SO ORDERED.

27
Date: ___
28 Judge of the Superior Court

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NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER
 1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF ORANGE
3 I am employed in the County of Orange, State of California. I am over the age of 18 and not a
4 party to the within action. My business address is 214 N. Malden Ave., Fullerton, CA 92832.
5 On December 9, 2021, I served the foregoing documents described as Motion to Strike
6 Plaintiff’s Complaint, Memorandum of Points and Authorities, and Proposed Order on all interest
7 parties in this action by placing a true copy thereof enclosed in sealed envelopes addressed as
8 follows:
9 Anna A. Ghajar
Miles, Bauer, Bergstrom & Winters, LLP
10 1231 Dyer Road, Suite 100
Santa Ana, CA 92705
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BY MAIL – I deposited such envelope in the mail at Fullerton, California. The envelope was
12 mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s practice of
collection and processing correspondence for mailing. Under that practice it would be
13 deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at
Fullerton, California in the ordinary course of business. I am aware that on motion of the
14 party served, service is presumed invalid if postal cancellation date or postage meter date is
more than one (1) day after the date of deposit for mailing in affidavit.
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BY PERSONAL SERVICE – I caused such envelope to be delivered.
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BY FACSIMILE – I faxed said document to the office(s) of the addressee(s) shown above,
17 and the transmission was reported as complete and without error.
18 BY ELECTRONIC TRANSMISSION – I transmitted a PDF version of this document by
electronic mail to the party(s) identified on the attached service list using the email
19 address(es) indicated.
20 BY OVERNIGHT DELIVERY – I deposited such envelope for collection and delivery with
delivery fees paid or provided for in accordance with ordinary business practices. I am
21 “readily familiar” with the firm’s practice of collection and processing packages for overnight
delivery. They are deposited with a facility regularly maintained for receipt on the same day
22 in the ordinary course of business.
23 I declare under penalty of perjury under the laws of the State of California that the foregoing
24 is true and correct.
25 Executed on December 9, 2021 at Fullerton, California.
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27 Jeremy J. Alberts
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NOTICE AND DEMURRER TO COMPLAINT FOR UNLAWFUL DETAINER