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8/2/2019 Ud Notice of Demurrer and Demurrer Redact
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NOTICE OF DEMURRER AND DEMURRER TO UNLAWFUL DETAINER COMPLAINT
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SACRAMENTO
LIMITED JURISDICTION
ELAINE AND STEPHEN WEEKS 2004FAMILY TRUST
Plaintiff,v.
MOHAMMED S, ABRAHIM, SAMIRA M.ABRAHIM;and DOES 1 through 10, inclusive,
Defendants.
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Case No.: 12UD01426(Unlawful Detainer)
NOTICE OF DEMURRER ANDDEMURRER TO UNLAWFUL DETAINERCOMPLAINT; MEMORANDUM OFPOINTS AND AUTHORITIES INSUPPORT THEREOF; ANDDECLARATION OF MOHAMMED S.ABRAHIM
Filed concurrently with Request for JudicialNotice; [Proposed] Order; and Proof ofService
Hearing Date:Time:Dept.:
UD Complaint Filed: 02/15/2012
Related Case: 34-2010-00072095
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on __________________________ or as soon thereafter as
the matter may be heard in Department 88 of the above-referenced Court, located at 301
Bicentennial Circle, Sacramento California 95826, Defendants
will, and hereby do, demur to Plaintiff ELAINE AND STEPHEN WEEKS 2004
FAMILY TRUST Unlawful Detainer Complaint on the following grounds:
1. Plaintiff ELAINE AND STEPHEN WEEKS 2004 FAMILY TRUST does not
have the legal capacity to sue pursuant to Code of Civil Procedure 430.10(b).
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NOTICE OF DEMURRER AND DEMURRER TO UNLAWFUL DETAINER COMPLAINT
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2. Since Plaintiff lacks standing to commence an unlawful detainer action against
Defendants as it fails the real party in interest requirement, the pleading does not state facts
sufficient to constitute a cause of action on behalf of the proper specific plaintiff pursuant to
Code of Civil Procedure 430.10(e).
This Demurrer is made pursuant to the provisions of Code Civil Procedure 430.10(b)
and 430.10(e), and is based upon this Notice; the attached memorandum of points and authorities;
declaration of Mohammed Abrahim -in support thereof; the concurrently-filed request for judicial
notice of Defendants Complaint court file; the records, files, and pleadings in this action; and
such further evidence and argument the Court may consider at hearing.
Respectfully submitted,
DATED: February 18, 2012
By ______________________________________
Mohammed Abdrahim
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TABLE OF CONTENT
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TABLE OF CONTENT
TABLE OF AUTHORITIES..... ii
MEMORANDUM OF POINTS AND AUTHORITIES... 1
STATEMENT OF FACTS ................................................. 1
SUMMARY OF ARGUMENT... 3
ARGUMENT... 4
I. DEFENDANTS MAY BASE THIS DEMURRER ON THEIRJUDICIALLY-NOTICEABLE WRONGFUL FORECLOSURECOMPLAINT........................................................................... 4
II. THIS GENERAL DEMURRER TO THE COMPLAINT MUST BESUSTAINED BECAUSE THE PLAINTIFF LACKS THE CAPACITY TO SUEPURSUANT TO CODE OF CIVIL PROCEDURE 430.10(b)......................... 4
III. THIS GENERAL DEMURRER TO THE COMPLAINT MUST BESUSTAINED BECAUSE THE UD COMPLAINT FAILS TOSTATE A CAUSE OF ACTION PURSUANT TO CODE OF CIVILPROCEDURE 430.10(e)... 7
CONCLUSION.. 7
DECLARATION OF MOHAMMED ABRAHIM IN SUPPORT OFDEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT........................... 9
[PROPOSED] ORDERFiled Separately
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRERFiled Separately
PROOF OF SERVICEFiled Separately
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TABLE OF AUTHORITIES
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TABLE OF AUTHORITIES
CALIFORNIA STATUTES:
Civil Code 2924Civil Code 2932.5Code of Civil Procedure 430.10(b)Code of Civil Procedure 430.10(e)Code of Civil Procedure 430.30Code of Civil Procedure 430.70Evidence Code 452Evidence Code 453
CASES:
Blank v. Kirwan (1985) 39 Cal.3d 311Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599County of Fresno v. Shelton (App. 5 Dist. 1998) 66 Cal.App.4th 996Parker v. Bowron, (1953) 40 Cal.2d 344Washington Mutual Bank v. Blechman (2007) 157 Cal.App.4th 662
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MEMORANDUM OF POINTS AND AUTHORITIESIN SUPPORT OF DEFENDANTS DEMURRERTO UNLAWFUL DETAINER COMPLAINT
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MEMORANDUM OF POINTS AND AUTHORITIES
STATEMENT OF FACTS
Plaintiffs Complaint provides that Defendants, as trustors, conveyed the subject property
at 3412 May Fair drive, Sacramento, CA 95864 (the Property or Home) to a Trustee by a
Deed of Trust executed and recorded in the Sacramento County Recorders Office on July 26,
2005 (Deed of Trust) to secure payment of said trustors Promissory Note. See, Plaintiffs
Complaint, 4(A). Thereafter, as alleged by Plaintiff, the Trustee of said Deed of Trust sold and
conveyed title to the Property to Plaintiff, ELAINE AND STEPHEN WEEKS 2004 FAMILY
TRUST, pursuant to the foreclosure and sale of the [Property], under the power of sale contained
in the Deed of Trust and in compliance with Civil Code 2924. Plaintiffs Complaint4(B).
On February 9, 2012, Plaintiff caused to be served a written 3/90-Day Notice stating that
Plaintiff had purchased the Property and demanded that all persons vacate the premises.
On February 22, 2011, Defendants filed an action for wrongful foreclosure in Sacramento
Superior Court, Unlimited Jurisdiction, Case No. 34-2010-00072095, naming California
Reconveyance and CHASE as one of the defendants (Defendants Wrongful Foreclosure
Complaint or Defendants Complaint or Defendants First Complaint); attached to the
concurrently-filed Request for Judicial Notice as Exhibit A). Concurrently with this Demurrer,
and in support thereof, Defendants request this Court to take judicial notice of Defendants
Wrongful Foreclosure Complaint pursuant to Evidence Code 452 and 453 and Code of Civil
Procedure 430.30 and 430.70.
Defendants Complaint includes claims for setting aside the Trustee Sale, canceling the
Trustees Deed, Quiet title, and declaratory and injunctive relief, while alleging, inter alia, the
following:
1) On or about July 26, 2005 Defendants entered into a written agreement withWashington Mutual Bank. for the financing of Defendants loan for the purchase of
their Home. Defendants for valuable consideration, as borrowers, made, executed, and
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MEMORANDUM OF POINTS AND AUTHORITIESIN SUPPORT OF DEFENDANTS DEMURRERTO UNLAWFUL DETAINER COMPLAINT
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delivered to Washington Mutual Bank. a written promissory note in the total amount of
$264,000.00.
2) To secure payment of the principle sum and interest as provided in the Note and as partof the same transaction, Defendants, as trustors, executed and delivered to Mortgage
Electronic Registration Systems, Inc. (MERS) as beneficiary, a Deed of Trust dated
September 14, 2006 (the Deed of Trust), by the terms of which Plaintiffs, as trustors,
conveyed to California Reconvenyance, as trustee, the Property. The Deed of Trust was
recorded on September 19, 2006.
3) On or about January 10, 2010, MERS assigned all beneficial interests under the Deedof Trust to California Reconvenyance Company (CRC) (hereinafter referred to as the
Assignment of Deed of Trust). Although executed in Jan 2010, the Assignment of
Deed of Trust was recorded only later, on August 26, 2010.
4) On or about Jan 12, 2010, Defendants CRC caused to be recorded a Notice of Defaultand Election to Sell on Defendants Property. Although CRC claimed to be either the
duly appointed Trustee, the substitute Trustee or acting as agent for Beneficiary under
[the Deed of Trust], no such indication is to be found in the Official Records in the
Office of the Recorder of Sacramento County, California.
5) On or about June 18, 2010, Defendants received a Notice of Trustee Sale from CRCstating that a Trustee Sale of the Property is set to take place on July 8, 2010.
6) On January 11, 2012, CRC conducted a Trustee Sale of the Property. The Property waspurportedly sold to Elaine and Stephen Weeks 2004 Family Trust., allegedly or
presumably, under the power of sale contained in the aforementioned Deed of Trust.
The Trustees Deed Upon Sale of the Property was recorded on January 26, 2012.
7) In their Wrongful Foreclosure Action, Defendants allege, inter alia, violations ofCalifornia law and Federal executive orders in improperly holding the sale of
Defendants Home and in wrongfully executing, delivering, and recording Trustees
Deed on the Property, as set forth below.
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MEMORANDUM OF POINTS AND AUTHORITIESIN SUPPORT OF DEFENDANTS DEMURRERTO UNLAWFUL DETAINER COMPLAINT
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On January 11, 2012, concurrently with Plaintiffs filing of their Complaint or immediately
thereafter, Elaine and Stephen Weeks 2004 Family Trust, the purported purchaser of the Property
in a Trustee Sale, filed this Unlawful Detainer action (UD Complaint) against Defendants.
On or about February 15, 2012, Defendants were served with Plaintiffs UD Complaint.
SUMMARY OF ARGUMENT
In their UD Complaint, Plaintiff explicitly held itself as an entity qualified to commence
this Unlawful Detainer action against Defendants. Plaintiffs Complaint 1. However,it appears
on the face of the UD Complaint and Defendants Complaint, which is judicially-noticeable
by this Court, that:
Plaintiff Elaine and Stephen Weeks 2004 Family Trust is not a real party in interest; Title
has not been perfected in Plaintiff since the title to the Property was not conveyed to Plaintiff
under the power of sale contained in the Deed of Trust and/or was not conveyed in compliance
with Civil Code 2924; Plaintiff Elaine and Stephen Weeks 2004 Family Trust lacks capacity and
standing to sue; and, Plaintiffs Complaint fails to state facts sufficient to constitute cause of
action on behalf of the proper specific plaintiff, pursuant to Code of Civil Procedure1 430.10(b)
and 430.10(e).
Therefore, Defendants Demurrer must be sustained without leave to amend and Plaintiffs
Complaint dismissed.
ARGUMENT
I
DEFENDANTS MAY BASE THIS DEMURRER ON THEIR JUDICIALLY-
NOTICEABLE WRONGFUL FORECLOSURE COMPLAINT
CCP 430.10 provides in pertinent part:
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MEMORANDUM OF POINTS AND AUTHORITIESIN SUPPORT OF DEFENDANTS DEMURRERTO UNLAWFUL DETAINER COMPLAINT
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The party against whom a complaint or cross-complaint has been filedmay object, by demurrer as provided in Section 430.30, to the pleadingon any one or more of the following grounds: (b) The person who
filed the pleading does not have the legal capacity to sue (emphasisadded).
In turn, CCP 430.30(a) states:
When any ground for objection to a complaint, cross-complaint, or answerappears on the face thereof, or from any matter of which the court isrequired to or may take judicial notice, the objection on that ground maybe taken by a demurrer to the pleading (emphasis added).
A demurrer may challenge the legal sufficiency of an opponent's pleading based on
defects that appear on the face of the pleading under attack and/or from matters outside the
pleading that are judicially noticeable. See, Blank v. Kirwan (1985) 39 Cal.3d 311, 318; County
of Fresno v. Shelton (App. 5 Dist. 1998) 66 Cal.App.4th 996, 1008-1009, as modified.
Concurrently with their Demurrer, Defendants are filing a Request for Judicial Notice of
said Wrongful Foreclosure Complaint pursuant to Evidence Code 452 and 453. Under CCP
430.30, Defendants may base their Demurrer on the judicially-noticed Wrongful Foreclosure
Complaint court file.
II
THIS GENERAL DEMURRER TO THE COMPLAINT MUST BE SUSTAINED
BECAUSE THE PLAINTIFF LACKS THE CAPACITY TO SUE
PURSUANT TO CODE OF CIVIL PROCEDURE 430.10(b)
Plaintiff Elaine and Stephen Weeks 2004 Family Trust filed this UD Complaint on or
about Feb 15, 2012, concurrently with or immediately after Defendants filed their Wrongful
Foreclosure Complaint naming CRC as defendant. Defendants Complaint alleges the following:
CRC had no legal capacity to commence, execute, or cause to be executed a Trustee Sale.
As a result of the Office of Thrift Supervisions March 19, 2009 Order, which appointed the FDICas the receiver for MERS, MERS became an inactive institution and no longer in existence on
January 26, 2012. MERS, a defunct corporation, had no authority and legal capacity to initiate a
trustee sale as of January 26, 2012. The only one who had such authority was the receiver, FDIC;
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Since MERS was unauthorized to conduct a trustee sale, its purported agents, CRC were
unauthorized to do so as well;
Also, CRC issued an unauthorized Notice of Default and Election to Sell as CRC did so
before the Assignment of Deed was duly acknowledged and recorded, as required by Civil Code
2932.5;
CRC was never dully appointed as a substitute Trustee and nonetheless acted as such;
CRC thus failed to comply with or misrepresented their compliance with the requirements
under Civil Code 2924 as they were not authorized to conduct a Trustee Sale and unlawfully
issued a Notice of Default and Election to Sell, a prerequisite thereto;
Since the underlying sale was unlawful, the Trustees Deed Upon Sale delivered to Elaine
and Stephen Weeks 2004 Family Trust is invalid and void. Further, Elaine and Stephen Weeks
2004 Family Trust is still subject to any deficiencies in the underlying Trustee Sale because Elaine
and Stephen Weeks 2004 Family Trust is not a bona fide purchaser, as it was already the
beneficial owner of the underlying obligation, whatever that might be and as such, did not
exchange any consideration for the so called Trustees Deed; Elaine and Stephen Weeks 2004
Family Trust did not acquire any interest in the property through a sale; did not pay fair
consideration or for that matter did not pay any consideration; was not a bona fide purchaser; had,
at all times, notice both actual and constructive of defects in the underlying Note, Deed of Trust
and the defects on the on the face of the documents recorded in the public records;
More specifically, Elaine and Stephen Weeks 2004 Family Trust had constructive notice of
the defects alleged by Defendants because the chain of title of the Property in the Official Records
in the office of the Recorder of San Mateo County, California clearly shows that a Notice of
Default was recorded before Power of Sale ever vested in CRC, i.e. before the Assignment of
Deed of Trust was duly acknowledged and recorded (Civil Code 2932.5). Further, Elaine
and Stephen Weeks 2004 Family Trust cannot be said to qualify as a bona fide purchaser without
notice since CRC serves as a Servicer of CHASE, which may indicate that the transfer of the
Property from CHASE to Elaine and Stephen Weeks 2004 Family Trust was part of a well
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calculated scheme between CRC and Elaine and Stephen Weeks 2004 Family Trust to sanitize the
Note..
In light of the foregoing in Defendants Complaint and attachments thereto, which are
judicially-noticeable, it appears title to the Property was not conveyed to Plaintiff under the power
of sale contained in the Deed of Trust and/or was not conveyed in compliance with Civil Code
2924. Thus, title has not been perfected in Plaintiff and Plaintiff is not a real party in interest.
A plaintiff lacks standing to sue if it not is a real party in interest. See, e.g., Washington
Mutual Bank v. Blechman (2007) 157 Cal.App.4th 662, 669 [citing Color-Vue, Inc. v. Abrams
(1996) 44 Cal.App.4th 1599, 1604]. Plaintiffs lack of legal standing is pertinent to the question
whether Plaintiffs UD Complaint sufficiently states a cause of action, see infra.
There is a difference between the capacity to sue, which is the right to come into court, and
the standing to sue, which is the right to relief in court (see Color-Vue, Inc. v. Abrams, id), in the
instant case Plaintiff Elaine and Stephen Weeks 2004 Family Trust also lacks the capacity to sue
as Elaine and Stephen Weeks 2004 Family Trust is subject to any deficiencies in the underlying
Trustee Sale and its alleged-predecessor in interest, CRC, which similarly lacks such legal
capacity.
Therefore, Plaintiff falls squarely within the objectionable grounds stated in CCP
430.10(b). Accordingly, Plaintiffs Complaint cannot stand and must be dismissed.
III
THIS GENERAL DEMURRER TO THE COMPLAINT MUST BE SUSTAINED
BECAUSE THE UD COMPLAINT ALSO FAILS TO STATE A CAUSE OF ACTION
PURSUANT TO CODE OF CIVIL PROCEDURE 430.10(e)
CCP 430.10 provides in pertinent part:
The party against whom a complaint or cross-complaint has been filedmay object, by demurrer to the pleading on any one or more of thefollowing grounds: (e) The pleading does not state facts sufficient to
constitute a cause of action (emphasis added).
A general demurrer should be sustained if a party is not the proper party to bring suit. See
Parker v. Bowron, (1953) 40 Cal.2d 344, 350-351.
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MEMORANDUM OF POINTS AND AUTHORITIESIN SUPPORT OF DEFENDANTS DEMURRERTO UNLAWFUL DETAINER COMPLAINT
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Here, the pleading does not meet the cause of action requirement because plaintiff lacks
standing to sue, as Plaintiff is not a real party in interest (see, supra). This is also why Plaintiffs
ability to state a claim is stymied.
Therefore, the Court cannot move forward with the merits of the case and Defendants
Demurrer should be sustained without leave to amend.
//
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CONCLUSION
FOR THE FOREGOING REASONS, Defendants respectfully request that this Court
sustain Defendants Demurrer without leave to amend.
Respectfully submitted,
Dated: February 18, 2012
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PROPOSED ORDER
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DECLARATION OF MOHAMMED ABRAHIM IN SUPPORT OF
DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT
I, Mohammed Abrahim, hereby declare the following:
1. I have personal knowledge of the facts contained in this declaration and if called asa witness, I could and would testify competently to these matters under oath.
2. Defendants filed an action for wrongful foreclosure in Sacramento Superior Court,
Unlimited Jurisdiction, on February 22, 2011 alleging, inter alia, violations of California law and
Federal executive orders in improperly holding the sale of Defendants Home and in wrongfully
executing, delivering, and recording Trustees Deed on Defendants Property.
3. On February 16, 2012, the purchaser of the Property in the Trustee Sale, Elaine and
Stephen Weeks 2004 Family Trust, filed an Unlawful Detainer action against Plaintiffs in
Sacramento Superior Court, Limited Jurisdiction.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on February 19, 2012 at Sacramento, California.
______________________
Declarant
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PROPOSED ORDER
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SACRAMENTO
LIMITED JURISDICTION
ELAINE AND STEPHEN WEEKS 2004FAMILY TRUST
Plaintiff,v.
MOHAMMED S, ABRAHIM, SAMIRA M.ABRAHIM;and DOES 1 through 10, inclusive,
Defendants.
))))))))))))
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Case No.: 12UD01426
[PROPOSED] ORDER
Date:Time:Dept:
Complaint Filed: 02/15/2012
Related Case: 34-2010-00072095(Unlimited)
TO ALL PARTIES AND THEIR COUNSELS OF RECORD:
IT IS HEREBY ORDERED THAT:
Defendants Demurrer to the Unlawful Detainer Complaint is hereby sustained without
leave to amend.
IT IS FURTHER ORDERED THAT:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
DATE: _________________________ __________________________________
Judge of the Superior Court
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PROPOSED ORDER
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SACRAMENTOLIMITED JURISDICTION
ELAINE AND STEPHEN WEEKS 2004FAMILY TRUST
Plaintiff,v.
MOHAMMED S, ABRAHIM, SAMIRA M.
ABRAHIM;and DOES 1 through 10, inclusive,
Defendants.
))))))))
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Case No.: 12UD01426(Unlawful Detainer)
PROOF OF SERVICE OF DEFENDANTSNOTICE OF DEMURRER ANDDEMURRER; MEMORANDUM OFPOINTS AND AUTHORITIES IN
SUPPORT THEREOF; DECLARATIONOF MOHAMMED ABRAHIM ;[PROPOSED] ORDER; REQUEST FORJUDICIAL NOTICE IN SUPPORT OFDEFENDANTS DEMURRER TOUNLAWFUL DETAINER COMPLAINT;AND EXHIBIT A
Hearing Date:Time:.Dept.:
UD Complaint Filed: 2/15/2012
Related Case: 34-2010-00072096
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
I am employed in the County of Sacramento, State of California. I am over the age of 18
and not a party to the within action. My business address is9091 Devon Crest, Elk Grove, Sacramento, CA 95624
On Feb 20, 2012, I served the following document described asDEFENDANTSNOTICE OF DEMURRER AND DEMURRER; MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT THEREOF; DECLARATION OF MOHAMMEDABRAHIM ; [PROPOSED] ORDER; REQUEST FOR JUDICIAL NOTICE IN SUPPORTOF DEFENDANTS DEMURRER TO UNLAWFUL DETAINER COMPLAINT; ANDEXHIBIT Aon all interested parties in this action by placing [X] a true copy [ ] the original thereof enclosed
in sealed envelopes addressed as follows:
SEE ATTACHED SERVICE LIST[ ] (BY FACSIMILE) The facsimile machine I used complied with Rule 2003(3) and no error
was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print arecord of the transaction.
[X] (BY MAIL, 1013a, 2015.5 C.C.P.)
[ ] I deposited such envelope in the mail at Sacramento, California. The envelope wasmailed with postage thereon fully prepaid.
[ ] I am readily familiar with the firms practice for collection and processingcorrespondence for mailing. Under that practice, this document will be deposited with the U.S.
Postal Service on this date with postage thereon fully prepaid at Sacramento, California in theordinary course of business. I am aware that on motion of the party served, service is presumedinvalid if postal cancellation date or postage meter date is more than one day after date of depositfor mailing in affidavit.
[ ] (BY PERSONAL SERVICE) I caused the foregoing envelope to be delivered by hand tothe addressee on the attached Service List.
[ ] (BY FEDERAL EXPRESS ) I caused the foregoing envelope to be delivered by xxxxFEDEX
[X] (STATE) I declare under penalty of perjury under the laws of the State of California thatthe above is true and correct.
[ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of thisCourt at whose direction the service was made.
Executed on Feb 19, 2012, Sacramento California._______________________________
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SERVICE LIST
Attorney(s) for Plaintiff, ELAINE AND STEPHEN WEEKS 2004 FAMILY TRUST
SID M ROSENBERG & LINK
AN ASSOCIATION OF PROFESSIONAL LAW CORPORATION
725 30TH
STREET STE 107
SACRAMENTO, CA 95816