Aurora  Bautista Quicho
207 Albatross Lane
Fountain Valley, California

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

Aurora Bautista Quicho,             ) CASE NO.  BC324176
              Counterclaimant,      ) 
                                    ) POINTS AND AUTHORITIES IN
             v.                     ) IN OPPOSITION TO DEMURRER
                                    ) OF Arnold, Ellison, 
THE PEOPLE OF THE STATE OF          ) Sokolov, AND Wiley,
CALIFORNIA, et al.                  ) 
                                    ) Date:  January 10, 2005
              Counterdefendants.    ) Time:  8:30 a.m.
                                    ) Dept:  30
                                    ) Ministerial Officer:
                                    )   Magistrate E.A. Grimes
                                    )
                                    )
------------------------------------)----------------------------

POINTS AND AUTHORITIES
IN OPPOSITION TO DEMURRER OF
Wiley, Arnold, Ellison, and Sokolove

1.  Counterplaintiff is one of the People of California, and in this court of record opposes the demurrer of counterdefendants Arnold, Ellison, Sokolov, and Wiley.
COUNTERDEFENDANTS ADMIT FACTS SHOWING THEY HAVE 
COMMITTED WRONGFUL ACTS UNDER COLOR OF LAW, 
WITHOUT JURISDICTION, THUS BREACHING THEIR DUTY TO 
COUNTERPLAINTIFF.  THEIR DEMURRER SHOULD BE DENIED.

2.  The organic law is the Constitution of Government, and is altogether written. Other written laws are denominated statutes. The written law of this State is therefore contained in its Constitution and statutes, and in the Constitution and statutes of the United States. [California Code of Civil Procedure, Section 1897] 

3.  [5] "The general rule in appraising the sufficiency of a complaint for failure to state a claim is that a complaint should not be dismissed '***unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' CONLEY VS. GIBSON (1957), 355 U.S. 41, 45, 46, 78 S.Ct. 99, 102, 2LEd 2d 80; SEYMOUR VS. UNION NEWS COMPANY, 7 Cir., 1954, 217 F.2d 168; and see rule 54c, demand for judgment, FEDERAL RULES OF CIVIL PROCEDURE, 28 USCA: "***every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." U.S. V. WHITE COUNTY BRIDGE COMMISSION (1960), 2 Fr Serv 2d 107, 275 F2d 529, 535 

4.  "A complaint may not be dismissed on motion if it states some sort of claim, baseless though it may eventually prove to be, and inartistically as the complaint may be drawn. Therefore, under our rules, the plaintiff's allegations that he is suing in 'criminal libel' should not be literally construed. [3] The complaint is hard to understand but this, with nothing more, should not bring about a dismissal of the complaint, particularly is this true where a defendant is not represented by counsel, and in view of rule 8{f} of the rules of civil procedure, 28 U.S.C., which requires that all pleadings shall be construed as to do substantial justice BURT VS. CITY OF NEW YORK, 2Cir., (1946) 156 F.2d 791. Accordingly, the complaint will not be dismissed for insufficiency. [4,5]" STEIN VS. BROTHERHOOD OF PAINTERS, DECORATORS, AND PAPER HANGERS OF AMERICA, DCCDJ (1950), 11 F.R.D. 153. 

5.  "A complaint will not be dismissed for failure to state a claim, even though inartistically drawn and lacking in allegations of essential facts, it cannot be said that under no circumstances will the party be able to recover." JOHN EDWARD CROCKARD VS. PUBLISHERS, SATURDAY EVENING POST MAGAZINE OF PHILADELPHIA, PA (1956) Fr Serv 29, 19 F.R.D. 511, DCED Pa 19 (1958) 
6.  "FRCP 8f: CONSTRUCTION OF pleadings. All pleadings shall be so construed as to do substantial justice. DIOGUARDI VS. DURNING, 2 CIR., (1944) 139 F2d 774” Judge Bouvier’s Law Dictionary, Vol. 1, page 458

7.  "Counterclaims will not be dismissed for failure to state a claim, even though inartistically drawn and lacking in allegations of essential facts, it cannot be said that under no circumstances will the party be able to recover." LYNN VS VALENTINE VS. LEVY, 23 Fr 46, 19 FDR, DSCDNY (1956)” Judge Bouvier’s Law Dictionary, Vol. 1, page 458  

8.  “It is not enough that a special demurrer object, in general terms, that the pleading is ‘uncertain, defective, and informal,’ or the like, but it is necessary to show in what respect it is uncertain, defective, and informal.  1 Wms. Saund. 161, n. 1, 337 b, n. 3; Stephen, Plead. 159, 161; 1 Chitty, Plead. 642”  Judge Bouvier’s Law Dictionary, Vol. 1, page 458

9.  When a wrong has been committed, or a breach of duty has occurred, the cause of action has accrued, although the claimant may be ignorant of it.  3 Barnew. & Ald. 288, 626; 5 Barnew. & C. 259; 4 Carr. & P. 127”  Judge Bouvier’s Law Dictionary, Vol. 1, page 247

10.  Counterdefendants only demurrer is a special demurrer simply stating, “The cause of action fails to state facts sufficient to constitute a cause of action against moving defendants.”  They do not show in what respect it “fails to state facts sufficient to constitute a cause of action against moving defendants.”  On that ground alone counterdefendants’ demurrer should be denied.

11.  Their demurrer fails to take into account that they acted as individuals without acquiring any lawful jurisdiction.  The mere wearing of a robe does not confer upon them jurisdiction over their victims.  Further, their pseudocourt did not act as, nor was it properly constituted as a court of record, nor was it a lawful nisi prius court, all of which they admit.  Their actions were ultra vires, so plaintiff does not hold the corporation (i.e. the government) responsible.  It is for counterdefendants’ admitted entrepreneurial actions resulting in plaintiff’s injuries for which they are sued.  If they have lawful jurisdiction, except where constitutionally protected rights are concerned, they are entitled to the benefits of the umbra of sovereign immunity; but where they factually have no jurisdiction, there is no immunity and they must answer for their breach of duty to the plaintiff.

12.  It should be noted here that counterdefendants mischaracterize counterplaintiff’s action.  Counterplaintiff’s action primarily concerns the counter-defendants’ total lack of jurisdiction and their pseudocourts to proceed.  Counterdefendants acknowledge counterplaintiff’s objection to their jurisdiction and their failure to satisfy the burden of proof of jurisdiction.  No amount of citing of codes, titles of nobility, and other accouterments of office can relieve them of their obligation and burden to prove their jurisdiction when challenged.

Judicial immunity is rightfully acquired once jurisdiction is lawfully established.  But, when there is 100% lack of lawful jurisdiction, judicial immunity, as a matter of law, simply does not exist for persons so acting.

13.  Counterdefendants are loose canons.  Their courts are not of competent authority because none is a court of record as required by the 1879 California Constitution.  They failed on two points:

A.	Not proceeding according to the common law.
B.	The tribunal is not independent of the magistrate who is conducting the proceedings (in this case the magistrates each acted as a tribunal).

14.  Further, as counterdefendants admit, Aurora Bautista Quicho timely objected to the jurisdiction of the court not of record; and she objected to their pseudo nisi prius court.

15.  Further, “...where the cause of action is not within the jurisdiction granted by law to the tribunal, it will dismiss the suit at any time when the fact is brought to its notice.”  22 Barb. N.Y. 271; 23 Conn. 172; 2 Ohio St. 26; 5 T.B.Monr.Ky. 261; 13 Vt. 175; 4 Ill. 133.  Counterdefendants, when they had the opportunity, did not so do.  Nor did they consider the objection, but assumed the jurisdiction without proof or ruling.

16.  Counterdefendants, as a matter of law, are not exempt from liability for their actions when they act with no jurisdiction.

17.  Counterdefendants, as a matter of law, are subject to suit when they act under color of law as if they were performing a judicial function, and cause injury to the counterplaintiff.

18.  The above-entitled action is against individuals acting in their individual capacities under color of law.  The government is not a defendant, nor has it yet appeared as a defendant in this action.  Paragraph 12 of the action duly identifies “Complainer Doe” as one with an alias of “People of the State of California”.  Nowhere in the suit is the government itself named as a defendant.  As an aside, it is highly questionable that public funds should used to provide free attorney representation by Attorney General Bill Lockyer and his deputies for counterdefendants who acted ultra vires and on their own volition.

19.  Counterdefendants maintain custody of the counterplaintiff.  Said custody served as a major impediment to counterplaintiff’s timely compliance with anything other than the demands of the counterdefendants.  Now they want the fruits of their poisoned tree:  under color of law they want counterplaintiff’s action denied because they claim that counterplaintiff failed to plead timely compliance with the requirements of a governmental entity not a party to the action.

20.  In summary, counterdefendants set up an unconstitutional court not of record over the objection of the counterplaintiff, they ignored the objections and failed to prove their jurisdiction, they now admit all that, and now they want the protection of this court of record.  Their general demurrer should be denied.

21.  Counterdefendants wish to present other matters at the hearing.  Counterplaintiff objects to “trial by surprise”.  They were served; they demurred to the action under full and fair conditions.  They may not be permitted to present any new matters beyond the content of the action and the demurrer.

22.  To conserve the resources of the court, counterplaintiff invites the court to consider on it own motion to consolidate all the hearings of the demurrers of all the counterdefendants, or at least that the ruling on the demurrer be taken under advisement and delayed until all counterdefendants have had a full and fair opportunity to respond.  Essentially all the same facts and points of law are being introduced.  By consolidating all the hearings into one the court may achieve a greater efficiency and consistency in time, resources, and rulings.

December 29, 2004 

_____________________________
Aurora Bautista Quicho