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VAN N. RANDON, JR. 8245 Bramhall Way Fair Oaks, CA 95628 (916) 276-9212 DEFENDANT, IN PRO PER

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO LVNV FUNDING, LLC Assignee of Citibank, Plaintiff, vs. VAN N. RANDON, JR.,DOES 1-100, INCLUSIVE Defendants ) ) ) ) ) ) ) ) ) ) Case No.: 34-2011-00102984 NOTICE OF HEARING; DEMURRER TO COMPLAINT OF LVNV FUNDING, LLC; MEMORANDUM OF POINTS AND AUTHORITIES Date: December 9, 2011 Time: 2:00 Dept: 53 Judge: David Brown Confirmation: 158199 Action Filed: May 5, 2011

TO EACH PARTY AND TO THE COUNSEL OF RECORD FOR EACH PARTY: YOU ARE HEREBY NOTIFIED THAT at the above-captioned date and time and department in the courthouse located at 800 Ninth Street, Sacramento, California, that Defendant, Van N. Randon, will generally demurrer the Plaintiffs Complaint. This demurrer is based on the fact that the Complaint and each cause of action fails to state facts sufficient to set out a cause of action. This motion will be based on this Notice of Motion, and the Memorandum of Points and Authorities, on the records and files herein, and such evidence may be presented at hearing of this Motion.
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Pursuant to Local Rule 3.04, the court will make a tentative ruling on the merits of this matter by 2:00 p.m., the day before the court hearing. You may access and download the courts ruling from the courts website at http://saccourt.com. If you do not have online access, you may obtain the tentative ruling over the telephone by calling (916) 874-8142 and a deputy clerk will read it to you. If you wish to request an oral argument, you must contact the courtroom clerk at (916) 874-7858 (Department 53) or (916) 874-7848 (Department 54) and the opposing party before 4:00 p.m. the court day before the hearing. If you do not call the court and the opposing party by 4:00 p.m. on the court day before the hearing, no hearing will be held. DATED: July 16, 2011 Van N. Randon, Jr. Defendant, In Pro Per

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DEMURRER

The Defendant generally demurs to the Complaint and all causes of action on the following grounds: 1. The Complaint fails to assert facts sufficient to constitute a cause of action because it fails to assert the real party in interest requirement. 2. The Complaint fails to assert the real party in interest requirement because the Plaintiff does not have the legal capacity to sue in the state of California pursuant to Code of Civil Procedure 430.10(b).

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MEMORANDUM OF POINTS AND AUTHORITIES

The liability the pleader seeks to weave is verbalized but no fibers of fact, real or synthetic, are pleaded to make a web. Vaughn v. Certified (1965) 238 Cal.App.2d 177. A demurrer is a pleading used to test the legal sufficiency of other pleadings. I. APPLICABLE LAW A. Ground for Objection Appears on the Face of the Complaint. When any ground for objection appears on the face thereof, the objection on that ground may be taken by a demurrer to the pleading (Code of Civ. Proc. 430.30(a)). B. Objection by General Demurrer. The party against whom the complaint has been filed may object, by demurrer to the pleading, on the ground that the pleading does not state facts sufficient to constitute a cause of action (Code of Civ. Proc 430.10(e)). C. Limited Liability Companies. A limited liability company has the power to sue, be sued, complain and defend in its own name on any action or proceeding. (Corps. C. 17003(b)). The Plaintiff in this case is a limited liability company. D. A Limited Liability Company Must be Registered with the California Secretary of State. Before any foreign LLC conducts intrastate business in California, it must register with the California Secretary of State. The Plaintiff in this case makes a business out of purchasing alleged debts of Californians, attempts to collect those debts, and when unable to do so, files suit in California Superior Courts. As it is in the business of purchasing and collecting alleged debts of Californians, the
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Plaintiff is conducting business in California, and must be registered with the Secretary of State (Corporations Code 17451(a)). Until such time that it complies with this requirement, the Plaintiff does not have the legal capacity to sue in this Court, and any lawsuit filed is subject to abatement through demurrer (Corporations Code 17456). E. Use of Judicial Council Form does not Excuse Adherence to Normal Rules of Pleading. Although the Plaintiff used a Judicial Council form, the Plaintiffs Complaint is still subject to a demurrer, motion to strike, or other attack, just as an attorney-drafted Complaint. Utilizing Judicial Council forms do not relieve the Plaintiff of the obligation to plead all ultimate facts essential to a cause of action. F. Sustain Demurrer without Leave to Amend. A trial court does not abuse its discretion by sustaining a general demurrer without leave to amend if it appears from that complaint that under applicable substantive law there is no reasonable possibility that an amendment could cure the complaints defect (Heckendorn v. City of San Marino (1986) 42 Cal. 3d 481, 486, 229 Cal. Rptr. 324, 723 P.2d 64; Dalton v. East Bay Mun. Utility Dist. (1993) 18 Cal. App. 4th 1566, 1570-71, 23 Cal Rptr. 2d 230). Moreover, when a complaint is successfully challenged by a general demurrer, the burden is on the Plaintiff to demonstrate how the complaint might be amended to cure the defect (Association of Community Organization for Reform Now v. Department of Industrial Relations (1995) 41 Cal. App. 4th 298, 302, 48 Cal. Rptr. 2d 486). II. ARGUMENT The Plaintiffs Complaint suffers from two fatal flaws. First, the Complaint lacks sufficient information to allow the Defendant to identify
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the original creditor, or any other information that would allow the alleged debt to be challenged. The fact that the Plaintiff has used a Judicial Council form does not alleviate the Plaintiff from the duty of providing any identifying information regarding this alleged debt that would allow the Defendant to ascertain the basis of the lawsuit. Second, the Plaintiff is a well-known debt collection company, and has actively attempted to collect alleged debts in the state of California, as evidenced by the hundreds of lawsuits the Plaintiff has filed in Sacramento County alone. Since the collection of alleged debts is considered a business activity, and the filing of a lawsuit by a debt collector is considered an attempt to collect an alleged debt, it follows that the Plaintiff is actively conducting business in California. Hence, the Plaintiff must be registered with the Secretary of State before conducting any business in California. The Secretary of State has no record of the Plaintiff having registered as a limited liability company; therefore, this lawsuit is subject to abatement. III. CONCLUSION For the foregoing reasons, the Plaintiffs Complaint should be dismissed, without leave to amend.

DATED: June 13, 2011

Respectfully Submitted,

______________________ Van N. Randon, Jr. DEFENDANT, In Pro Per

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