A person (hereinafter "Fraudster") who doctored a Grant Deed
, and a couple declarations of homesteads
with the help of a public notary, filed with the LA County Recorder's office a fraudulent deed forging an elderly gentleman signature (hereinafter "Elder") which granted the fraudster 50 percent interest in the elder's real property
. Unknown to the elder the fraudster submits for recording the forged instruments. Elder dies leaving a will granting brother full interest in property. Then the brother dies shortly after and does not leave a will. The successor of interest, the brother's son (hereinafter plaintiff), who was the nephew of the original elder decedent, discovers the fraud by the fraudster by reviewing all recorded documents at the County recorders office. Fraudster has now submitted more instruments to the recorder claiming the he has 100% interest and places the property in a land trust naming a trustee and second trustee.
Having overwhelming evidence of forgery and fraud and issues of concealment by both the fraudster and the notary (notary did not forfeit journals after commission ended to recorders office). Then when questioned by Sheriff's detective, notary claimed the journals lost or stolen three years prior and never reported the loss or theft to Secretary of state. (Several violations of Govt. Code)
The Plaintiff files both a petition for probate and a civil unlimited verified complaint for 1. FOR DECLARATORY RELIEF; 2. TO QUIET TITLE TO REAL PROPERTY,
3. CANCELLATION OF INSTRUMENTS, 4. FRAUD/INTENTIONAL
MISREPRESENTATION, 5. CONVERSION against the fraudster, trustee, 2nd trustee and notary.
The probate matter and civil matter after the initial hearing was transferred to the same judge hearing the civil case, stating the cases eventually will be combined.
Notary demurrers complaint claiming statute of limitations. Opposition is filed arguing statute of limitations not run for violations in govt. code, fraud by concealment of journals. Plaintiff essentially wins but granted leave to amend. Plaintiff files First Amended Verified complaint with changes. Notary files 2nd demurrer on grounds that the notary journals were submitted to recorder (doesn't state when and we know they were submitted after the recent Certification of Non-filing was provided by the recorder's office and after notary originally stated they were lost or stolen, thinking that this will have any impact on allegations pled to.
Here is the issue...
Additional to this ridiculous argument, notary is now claiming that the matter be dismissed pursuant to CCP section 377.22 for failing to provide an affidavit stating that “No proceeding is now pending in California for administration of the decedent’s estate,” was ever filed. It is true none was ever filed, however a verified complaint was submitted alleging all the facts of Plaintiff being Successor of interest. The Plaintiff petitioned the court to be appointed special administrator and that decision will be heard 7 days before the demurrer is scheduled to be heard. It would have happened sooner if it wasn't for the fraudster filing for a continuance as well as his opposition to Plaintiff's appointment as special administrator, which there are no grounds for and pretty obvious of fraud.
Question is: How to oppose demurrer, is this case subject to 377.22. The only defendant that does not have an interest in the property under probate is the notary. This issue was not address in prior demurrer and its been over 6 months since case was originally filed and determination that Plaintiff is special administrator will be decided before the demurrer is heard. What to do about this? Want to preserve civil case and not let this corrupt notary get away. Could the civil case be voluntarily dropped and then re-filed including affidavit after the Plaintiff is appointed special administrator.
I need a specific well cited answer to the problem. Any good opposing argument to demurrer and a course of action please, thank you