NAME

1
ADDRESS
2 ADDRESS
PHONE
3 In Pro Per
4

6 SUPERIOR COURT OF CALIFORNIA, COUNTY OF XXXXXXX

7 TRAFFIC DIVISION
8 THE PEOPLE OF THE STATE OF CALIFORNIA
Case No.: XXXXXXXXXX
9

10 Plaintiff, DEMURRER
11 vs. TO "COMPLAINT"
12 XXXXXXXXXXX (Your Name) P.C. 1002, 1003, 1004, 1005, &1006
13 Alleged Defendant Date: xxxxxxx
14 Time: xxxx
15 Dept.: xxxxx
16
DEMURRER
17

18
To the Court: Pursuant to the above enumerated Penal Code citations, defendant demurs to the
19
cause of action, all counts inclusively of the ‘complaint’, which has not been filed, on the
20
following grounds:
21
1. The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
22
(see: DONALD RALPH, V. THE POLICE COURT OF THE CITY OF EL CERRITO, ,
23
84 Cal. App. 2d 257; 190 P.2d 6323: 1948 Cal. App. LEXIS 1186 March 8, 1948.)
24
2. There is defect or mis-joinder of the parties.
25
3. The pleading does not state facts sufficient to constitute a cause of action. There has
26
been NO probable cause determination before a MAGISTRATE in this matter. A
27
commissioner is NOT a magistrate.
28

Demurrer - 1
 1 4. In an action founded upon a contract, it cannot be ascertained from the pleading whether
2 the contract is written, is oral or is implied by conduct.
3

4 Penal Code 1002

5 "The only pleading on the part of the defendant is either a demurrer or a plea."
6

7 Penal Code 1003

8 "Both the demurrer and plea must be put in, in open court, either at the time of the arraignment
9 or at such other time as may be allowed to the defendant for that purpose."
10

11
Penal Code 1004
12
“The defendant may demur to the accusatory pleading at any time prior to the entry of a plea,
13

14
1. If an indictment, that the grand jury by which it was found had no legal authority to
inquire into the offense charged, or, if any information or complaint that the court has no
15 jurisdiction of the offense charged therein;
2. That it does not substantially conform to the provisions of
16 Sections 950 and 952, and also Section 951 in case of an indictment
17
or information.
3. That more than one offense is charged, except as provided in penal code section 954;
18 4. That the facts stated do not constitute a public offense;
5. That it contains matter which, if true, would constitute a
19
legal justification or excuse of the offense charged, or other legal bar to the prosecution.”
20
Objections Presented & Grounds for a Demurrer
21
(Cal. P.C. 1005)
22

23 “The demurrer must be in writing, signed either by the defendant or his counsel, and filed. It
must distinctly specify the grounds of objection to the accusatory pleading or it must be
24 disregarded.”
25
Grounds of Objection(s):
26
[1] A Complaint has not been filed. The “Complaint” drafted on: April 28, 2010, by Unknown,
27
D.A., Bar #Unknown, does not bear a filing or endorsement stamp nor is it endorsed by any
28

Demurrer - 2
 Magistrate pursuant to Penal Code 738, 739, 740, 872 (a) and 1382 where a probable cause
1

2 hearing was held within 15 days of the commitment. Said “complaint” is wholly deficient and

3 completely without any proof of ever being properly placed into the record or properly filed
4
before this court. Therefore, there is no charging instrument before this court, (No in personam
5
jurisdiction, and no subject matter jurisdiction.)
6

7
Thus, there is no lawful instrument for which to hold the defendant to “Answer” or “Plea.”

8 [2] Sufficiency of an Accusatory Pleading. California. P.C 959, states the following:
9 “The accusatory pleading is sufficient if it can be understood therefrom:
10
1. That it is filed in a court having authority to receive it, though the name of the court be
11 not stated.
2. If an indictment, that it was found by a grand jury of the county in which the court was
12
held, or if an information, that it was subscribed and presented to the court by the district
13 attorney of the county in which the court was held.
3. If a complaint, that it is made and subscribed by some natural person an sworn to before
14 some officer entitled to administer oaths.
4. That the defendant is named, or if his name is unknown, that he is described by a
15
fictitious name, with a statement that his true name is to the grand jury, district attorney,
16 or complainant, as the case may be, unknown.
5. That the offense charged therein is triable in the court in which it is filed, except in case
17 of a complaint filed with a magistrate for the purposes of preliminary examination.
6. That the offense was committed at some time prior to the filing of the accusatory
18
pleading. See People v, Brussel:
19

20
THE PEOPLE, Appellant, v. H. BRUSSEL, Respondent Cr. A. No. 729
21
APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF CALIFORNIA, LOS
22
ANGELES COUNTY 122 Cal. App. Supp. 785; 7 P.2d 403; 1932 Cal. App. LEXIS 3,
23
January 20, 1932, Decided
24
PRIOR-HISTORY: APPEAL from an order of the Municipal Court of the City of Los
25
Angeles, dismissing the action. Ida May Adams, Judge.
26

27
COUNSEL: Charles P. Johnson, City Prosecutor, and John L. Bland and Joe W. Matherly,
28
Deputies City Prosecutor, for Appellant.

Demurrer - 3
 1 H. Brussel, in pro. per. for Respondent.
2

3 JUDGES: McLUCAS, P. J. Shaw, J., and Craig, J., pro tem., concurred.
4

5 OPINION BY: McLUCAS

6

7 OPINION
8 McLUCAS, P. J. After examination of the complaint, on the motion of defendant, the
9 court dismissed this action for want of jurisdiction. The apparent ground of this ruling, as
10 disclosed by the record, was that the complaint was not properly signed and not under oath.
11 The question has been raised whether the superior court has jurisdiction of an appeal from an
12 order dismissing the action. In People v. Garcia, Cr. A. No. 700, decided by this court (120
13 Cal. App. (Supp.) 767 [2 Cal. Supp. 5, 7 Pac. (2d) 401]), the appeal was taken from an order
14 dismissing the action. It appeared that the order of dismissal was made after the case had
15 gone to trial and evidence had been received against the defendant. This court held, on
16 authority of People v. Knowles, 27 Cal. App. 498 [155 Pac. 137], and Penal Code, sections
17 1237, 1238 and 1466, that there is no appeal from an order dismissing the action after the
18 trial has been entered upon. A like ruling has been made regarding an appeal from an order
19 dismissing an action under section 1382 for want of prosecution. ( People v. Hollis, 65 Cal.
20 78 [2 Pac. 893].) In People v. Ellis, 204 Cal. 39 [266 Pac. 518], an order dismissing an
21 information for lack of jurisdiction, on the ground that the information did not state an
22 offense, where the defendant had not been placed in jeopardy, was held to be appealable on
23 the ground that the order of dismissal was substantially equivalent to a judgment for
24 defendant on demurrer. In the present case also, the defendant had pleaded not guilty, but had
25 not been placed in jeopardy. In our opinion, the order of dismissal was appealable under
26 subdivision 1 of section 1238 of the Penal Code. It was, in substance and effect, an order
27 setting aside the complaint because it was not properly signed or not under oath
28

Demurrer - 4
 1 The complaint was filed on October 16, 1931. On the same day the case was called the
2 defendant was in court, was duly arraigned, informed of the charge against him and of his
3 legal rights. Defendant entered his plea of not guilty and personally waived jury trial. The
4 case was set for trial on October 28th and the defendant released on his own recognizance.
5 The case was called for trial on October 28th. There was no appearance by the defendant, and
6 the trial court ordered and issued a warrant for his arrest. On November 10th the cause was
7 again called for trial and, upon motion of defendant, was ordered dismissed. The statement
8 on appeal recites that "The complaint in this action was examined by the court and appeared
9 on its face not to be personally signed by the alleged or any complainant, but there appeared
10 upon said complaint the impression of a rubber stamp of the name 'Jos. B. Bunning' at the
11 beginning of said complaint immediately following the words, to-wit: 'Personally appeared
12 before me this day of Oct. 16, 1931' and a similar impression of such rubber stamp at the end
13 of said complaint, immediately following the words, to-wit: 'Said complainant therefore
14 prays that a warrant may be issued for the arrest of said defendant (Whose true name to
15 affiant is unknown) and that he may be dealt with according to law.'" A complaint under
16 oath, as required by section 1426 of the Penal Code, is substantially an affidavit. It appears
17 that signatures to affidavits are not required in civil cases in the absence of a statute requiring
18 signatures. ( City of Petaluma v. White, 152 Cal. 190, 195 [92 Pac. 177]; Hotaling & Co. v.
19 Brogan, 12 Cal. App. 500 [107 Pac. 711]; Lutz v. Kinney, 23 Nev. 279 [46 Pac. 257].)
20 Section 1426 of the Penal Code does not specifically require a complaint to be signed. It has
21 been held in other states that in prosecutions for misdemeanors it is not necessary that the
22 affidavit be signed by affiant. ( Holman v. State, 144 Ala. 95 [39 South. 646]; see, also,
23 Husbands v. State, 105 Miss. 548 [62 South. 418].) We conclude that the signature of the
24 complainant is not essential to the validity of the complaint.
25
A prosecution for misdemeanor must be commenced by a complaint under oath. (Pen.
26
Code, sec. 1426; In re Williams, 183 Cal. 11 [190 Pac. 163].) In the ordinary case the fact
27
that the complaint is under oath is shown by the signature of the officer administering the
28
oath. But where it is otherwise shown that affiant in fact swore to the affidavit, the failure of

Demurrer - 5
 1 the officer to affix his signature to the jurat will not vitiate the proceedings. (2 C. J., p. 363.)
2 Where the signature of the officer does not appear, the prosecution must otherwise show that
3 the oath was administered. In this case, the statement on appeal reads, "It further appeared
4 on the face of said complaint that the attached jurat was not personally signed by any officer
5 but that there appeared thereupon the impression of a rubber stamp of the name of 'J. M.
6 Askin', immediately after the following words, to wit: 'Subscribed and sworn to before me
7 this day of Oct. 16, 1931. W. S. Dinsmore, Clerk of the Municipal Court of Los Angeles
8 City, in said County and State. By .' And before the words, to-wit: 'Deputy Clerk'." The
9 prosecution did not show or offer to show that the rubber stamp signature was made
10 personally by J. M. Askin or that he adopted the rubber stamp signature. The courts seem to
11 be generally in accord in holding that a printed or stamped signature of a court officer is a
12 sufficient authentication, fulfilling the requirement of a signature, where such signature has,
13 in effect, been adopted by the officer. (Note, 30 A. L. R. 703; Ligare v. California Southern
14 R. R. Co., 76 Cal. 610 [18 Pac. 777].) If the persons whose names appeared upon the
15 complaint as signers thereof adopted or used a rubber stamp as their signature, and such
16 stamp was affixed by them personally, or by another in their presence and by their direction,
17 the impression of such stamp became the lawful signature of such persons. Whether such
18 rubber stamp impression was or was not used or adopted by the persons, whose names so
19 appeared upon the complaint, was a question of fact which the trial court could not determine
20 from an examination of the complaint alone. On October 28th the trial court ordered and
21 issued a warrant of arrest, which that court could order only after the filing of a sworn
22 complaint. ( Sections 1426, 1427, Pen. Code.) Under such circumstances, the presumption
23 applies that official duty has been regularly performed (sec. 1963, subd. 15, Code Civ. Proc.;
24 16 Cor. Jur. 539, 540), and that the complaint when filed was under oath of the complainant.
25 In Lewis v. United States, 279 U.S. 63 [73 L. Ed. 615, 49 Sup. Ct. Rep. 257], it was held that
26 generally all necessary prerequisites to the validity of official action are presumed to have
27 been complied with. In State v. Lester, 161 Wash. 227 [296 Pac. 549], the court held that in
28 the absence of a contrary showing the presumption is that a public officer did his duty. There

Demurrer - 6
 1 was a similar holding in In re Solman, 107 Cal. App. 727 [291 Pac. 224]. In the face of this
2 presumption, the trial court, after a mere examination of the complaint, in effect found that
3 the complaint, when filed, was not under oath, without taking any evidence as to whether the
4 complaint when filed was under oath of the complainant or as to whether the rubber stamp
5 signatures had been used or adopted by the persons named therein, and dismissed the action
6 for want of jurisdiction. Under such circumstances, we find no justification for this action of
7 the trial court.
8
The order of dismissal is reversed and the cause is remanded to the municipal court for
9
further proceedings.
10
Shaw, J., and Craig, J., pro tem., concurred.
11

12
Legal Requirements of a Complaint
13
In legal terms, a demurrer attacks or responds to the legal sufficiency of the complaint.
14

15 Defendant is asserting that the complaint does not amount to a legally valid claim even if the

16 factual allegations contained in the complaint are accepted as true. Usually, a demurrer
17
attacks a complaint as missing one or more required elements of a claim. The ‘Complaint’
18
fails to state facts sufficient to constitute a claim for relief. In the context of the
19
‘Complaint,’ the people assert that it is based upon “information and belief.”
20

21 Such “Information and Belief” is nothing more than ‘Rumor’ or ‘Hearsay’ and is NOT

22 admissible unless a properly verified complaint is indorsed by a Magistrate pursuant to the

23
provisions of Penal Code 872 (a), and filed accordingly.
24

25

26
Challenge to Jurisdiction

27 Defendant Challenges the Jurisdiction of this Court

28

Demurrer - 7
 In any judicial proceeding, the moving party has the burden of proof of demonstrating that
1
the court has subject matter jurisdiction over the matters and parties before it. See the
2 following authorities:
3
• Scott v. Sandford, 60 U.S. 393 (1856)
4
• Security Trust Co. v. Black River National Bank, 187 U.S. 211 (2002)
5 • McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)
• Hague v. Committee for Industrial Organization Et. Al., 307 U.S. 496 (59 S.Ct. 954,
6
83 L.Ed. 1423 (1939)
7 • United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 36454 L.Ed. 2d 376
8 (1977)
• Chapman v. Houston Welfare Rights Organization Et. Al., 441 U.S. 600, 99 S.Ct.
9
1905, 60 L.Ed. 2d 508 (1979)
10 • Cannon v. University Chicago Et. Al., 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed. 2d 560
11
(1979)
• Patsy v. Board Regents State Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172
12
(1982)
13 • Merrill Lynch v. Curran Et Al., 456 U.S. 353, 102 S.Ct. 1825, 72 L.Ed.2d 182, 50
U.S.L.W. 4457 (1982)
14
• Insurance Corporation Ireland v. Compagnie Des Bauxites De Guinee, 456 U.S. 694,
15 102 S.Ct. 2099, 72 L.Ed.2d 492, 50 U.S.L.W. 4553 (1982)
16 • Matt T. Kokkonen v. Guardian Life Insurance Company America, 128 L.Ed.2d 391,
62 U.S.L.W. 4313 (1994)
17

18 See Also:
DONALD RALPH, Petitioner, v. THE POLICE COURT OF THE CITY OF EL CERRITO,
19 Respondent Civ. No. 13652 Court of Appeal of California, First Appellate District, Division
20
One , 84 Cal. App. 2d 257; 190 P.2d 632; 1948 Cal. App. LEXIS 1186 March 8,1948

21 PRIOR-HISTORY: PROCEEDING for a writ of prohibition to restrain a police court from

further proceeding in an action.
22

23
COUNSEL: Fabian D. Brown and Kenneth C. Zwerin for Petitioner.

24 No appearance for Respondent.

25
JUDGES: Peters, P. J. Ward J., and Bray, J., concurred.
26
OPINION BY: PETERS
27

28
OPINION

Demurrer - 8
 This is a petition for a writ of prohibition to restrain the respondent police court from further
1
proceeding to prosecute petitioner on a chrge of reckless driving, causing bodily injury in
2 alleged violation of section 505(b) of the Vehicle Code.

3
The petition avers that the alleged offense occurred on April 22, 1947; that petitioner pleaded
not guilty to the charge on June 7, 1947; that no written complaint was ever filed; that
4 petitioner did not at any time waive, in writing, the filing of such a verified complaint; that,
although no complaint was filed or waiver given, petitioner was placed on trial and found
5
guilty by respondent court; that he moved in arrest of judgment and for a new trial; that both
6 motions were denied; that petitioner appealed to the superior court from the judgment of
conviction and from the order denying the motion for a new trial; that the judgment and order
7 were affirmed on September 25, 1947; that thereafter a rehearing was denied by the superior
court and that court issued its remittitur to the respondent court; that that court is about to
8
pronounce sentence upon petitioner; that respondent court is without jurisdiction over the
9 proceeding in the absence of a written complaint or a written waiver thereof.
These facts stand uncontradicted. Respondent court, and the district attorney of Contra
10
Costa County, although properly served, have not responded by filing a return to the
11 alternative writ, nor did they appear through counsel or otherwise at the oral argument.
Under the admitted facts, in our opinion, the writ must issue.
12
Under the provisions of the Vehicle Code a person arrested for the misdemeanor defined
13 in section 505(b) may be immediately taken by the arresting officer before a magistrate, or, at
the option of the arresting officer, may be given a written notice to appear before the
14
magistrate within five days (§ 737). If the arrested person is immediately taken before a
15 magistrate "the arresting officer shall file with said magistrate a complaint stating the offense
with which such person is charged" (§ 738). The procedure where written notice is given,
16 the contents of such notice, and the proceedings to be had thereunder are prescribed by
section 739.
17
Section 739.1 reads as follows:
18
"Whenever written notice to appear has been prepared, delivered and filed with the court,
19 as provided in section 739 hereof, . . . an exact and legible duplicate copy of said notice when
filed with the magistrate specified herein, in lieu of a verified complaint, shall
20
notwithstanding the provisions of section 1426 of the Penal Code, constitute a complaint to
21 which the defendant may plead 'Guilty.'
"If, however, the defendant shall violate his promise to appear in court or shall not
22
deposit lawful bail, or shall plead other than 'Guilty' of the offense charged, a complaint shall
23 be filed which shall conform to the provisions of said section 1426, Penal Code, and which
shall be deemed to be an original complaint, and thereafter [proceedings] shall be had as
24 provided by law; provided, that a defendant may, by an agreement in writing, subscribed by
him and filed with the court, waive the filing of a verified complaint and elect that the
25
prosecution may proceed upon the written notice mentioned in section 739 hereof."
26 Penal Code, section 1426, provides as follows: "All proceedings and actions before a
27 justice's or police court, or a municipal court, for a public offense of which such courts have
jurisdiction, must be commenced by complaint under oath, setting forth the offense charged,
28 with such particulars of time, place, person, and property as to enable the defendant to

Demurrer - 9
 understand distinctly the character of the offense complained of, and to answer the complaint
1
. . ." (Italics added.)
2 Thus it is quite apparent that whether the arrested person is taken immediately before a
3
magistrate, or is given a five-day notice to appear and pleads not guilty and does not waive
the requirement, a complaint under section 1426 of the Penal Code "must" be filed. Unless
4 waived, as provided by statute, the filing of such complaint is essential to the jurisdiction of
the police court. That has been the law of this state for many years. It was stated as follows
5
in the case of In re Williams, 183 Cal. 11, 12 [190 P. 163]: "It goes without saying that it is
6 essential to the jurisdiction of a police court to put a person upon trial for a public offense
that there should be on file therein a complaint charging such person with the commission of
7 such offense." (See, also, People v. Brussel, 122 Cal.App.Supp. 785 [7 P.2d 403].) It is also
the law in other jurisdictions. The rule, supported by many authorities, is stated as follows in
8
22 Corpus Juris Secundum pages 456, 457, section 303: "The term 'complaint' is a technical
9 one descriptive of proceedings before magistrates. It is and has been defined to be the
preliminary charge or accusation against an offender, made by a private person or an
10 informer to a justice of the peace or other proper officer, charging that accused has violated
the law. It has also been defined as a preliminary charge before a committing magistrate; . . .
11
The complaint is the foundation of the jurisdiction of the magistrate, and it performs the same
12 office that an indictment or information does in superior courts." (See, also, cases collected
16 C.J. § 492 p. 286.)
13
Section 739.1 of the Vehicle Code, above quoted, dispenses with a formal complaint
14 when the accused pleads guilty, or where he pleads not guilty and waives in writing the
filing of such a complaint. Otherwise, the provisions of section 1426 of the Penal Code
15 apply.
16 The petition here involved does not disclose whether petitioner upon his arrest was
immediately taken before a magistrate or given a five-day notice. It does disclose, however, a
17
plea of not guilty and it does aver that no waiver was made. Under such circumstances the
18 filing of a complaint was mandatory, and essential to the jurisdiction of the court.
"Jurisdiction is fundamental. It is the primary question for determination by a court in any
19 case for jurisdiction is the power to hear and determine. [Citing cases.] If a judgment is
rendered by a court which did not have jurisdiction to hear a cause, such judgment is void ab
20
initio. [Citing cases.] Even though a void judgment is affirmed on appeal, it is not thereby
21 rendered valid." ( In re Wyatt, 114 Cal.App. 557, 559 [300 P. 132].)

22
Let the peremptory writ issue as prayed.
23

24
Memoranda of Authority & Case Law
25

26
Defendant Argues the Following Relative to this Demurrer:
27

28

Demurrer - 10
 Again, the complaint fails to state facts sufficient to constitute a cause of action and no
1
possible amendment can convert plaintiffs' pleading into a legally cognizable claim.
2

3 The sole function of a demurrer is to challenge the legal sufficiency of a pleading. Century
4 Indemnity Co. v Superior Court (1996) 50 Cal. App. 4th 1115, 1118 n. 6, 58 Cal. Rptr. 2d
5 69, 71 n. 6, quoting Committee on Children's Television, Inc. v. General Foods Corp. (1983)

6 35 Cal. 3d 197, 213, 197 Cal Rptr. 783, 793. A demurrer is properly sustained when the

7
‘Complaint’, taken as a whole and reading its parts in context, fails to state facts sufficient to
constitute a cause of action against the demurring defendant. C.C.P. Section 430.10 (e),
8
Cross v. Bonded Adjustment Bureau (1996) 48 Cal App. 4th 266, 275, 55 Cal. Rptr. 2d 801,
9
805.
10

11 There are NO facts before this court as there has been no probable cause determination
12 pursuant to the provisions of Penal Code 738, 739, & 872.

13
Sustaining of the Demurrer or Dismissal of the Action is
14

15 Appropriate as No Probable Cause Hearing has Taken Place.

16

17

18 Penal Code 872 (a) States: “If, however, it appears from the examination that a public
offense has been committed, and there is sufficient cause to believe that the defendant is
19
guilty, the magistrate shall make or indorse on the complaint an order, signed by him or her,
20 to the following effect: "It appearing to me that the offense in the within complaint
mentioned (or any offense, according to the fact, stating generally the nature thereof), has
21 been committed, and that there is sufficient cause to believe that the within named A. B. is
guilty, I order that he or she be held to answer to the same."
22

23

24
ONLY a Magistrate may order an action tried, a Commissioner in Not a Magistrate.
25

26

27
Elements of a Demurrer
28

Demurrer - 11
 (Cal. P.C. 1006)
1

2
“Upon the demurrer being filed, (presented in court, upon arraignment) the argument upon
3 the objections presented thereby must be heard immediately, unless for exceptional cause
shown, the court shall grant a continuance. Such continuance shall be for no longer time than
4 the ends of justice require, and the court shall enter in its minutes the facts requiring it.”
5

6
Due Process
7
Defendant is entitled to Due Process:
8

9
U.S. Constitution Section 1 of the Fourteenth Amendment provides:
10
"All persons born or naturalized in the United States and subject to the jurisdiction
11
thereof, are citizens of the United States and of the State wherein they reside. No State shall
12 make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property, without due
13 process of law; nor deny to any person within its jurisdiction the equal protection of the
14
laws."

15 The denial or revocation of a license can trigger the procedural requirements of the Due
16
Process clause. See, e.g., Bell v. Burson, 402 U.S. 535, 539 (1971).
17
Fraud Upon the Court
18

19
A District Attorney is an Officer of the Court:
20

21 A ‘complaint’ that is neither indorsed or sworn to under oath is nothing more than a piece of
22 paper, and when it is used to prosecute an individual in violation of his due process rights, it
23 appears to be a fraud upon the court.

24
Whenever any officer of the court commits fraud during a proceeding in the court, he/she

25 is engaged in "fraud upon the court". In Bulloch v. United States, 763 F.2d 1115, 1121 (10th
26
Cir. 1985), the court stated "Fraud upon the court is fraud which is directed to the judicial
27
machinery itself and is not fraud between the parties or fraudulent documents, false
28

Demurrer - 12
 statements or perjury. ... It is where the court or a member is corrupted or influenced or
1

2 influence is attempted or where the judge has not performed his judicial function --- thus

3 where the impartial functions of the court have been directly corrupted."
4
"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace
5
that species of fraud which does, or attempts to, defile the court itself, or is a fraud
6

7
perpetrated by officers of the court so that the judicial machinery can not perform in the usual

8 manner its impartial task of adjudging cases that are presented for adjudication." Kenner v.
9 C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th
10
Circuit further stated "a decision produced by fraud upon the court is not in essence a
11
decision at all, and never becomes final."
12

13 Conclusion:
14 Since no repleading or amendment can correct Plaintiff’s fatal flaw, this demurrer should

15 be sustained without leave to replead. "Leave to amend should be denied where the facts are
16
not in dispute, and the nature of the plaintiff's claim is clear, but, under the substantive law,
17
no liability exists. Obviously, no amendment would change the result." 5 B. WITKIN,
18
CALIFORNIA PROCEDURE (4th ed .) Pleading Section 946, p. 403 (1997); Heckendorn v.
19

20 San Marino (1986) 42 Cal. 3d 481, 489, 229 Cal. Rptr. 324, 329.

21 WHEREFORE, defendant requests that:

22

23 1. Defendant's demurrer be sustained without leave to amend;

24

25
2. The court enter an order dismissing the action;

26
3. Defendant be awarded the costs of this action; and
27

28
4. The Court grant such other and further relief that the court considers proper.

Demurrer - 13
 1 Respectfully Submitted,
2

3 NAME , DATE.
4

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Demurrer - 14