Please contact me if you can help on contingency basis. thank you. teresa aguilar. 310-358-5924 - stclair43@yahoo.com
Plaintiff TERESA AGUILAR hereby answers and opposes defendants MIKE CHANG, and/or all other defendants, et al., demurrer(s) to plaintiff's complaint. This action is essentially for damages of conspiracy, discrimination, interference, intentional infliction of emotional distress, retaliation, and fraud case. Plaintiff's complaint entails matters to be decided by a resolution of the factual issues involved — and thus improper to resolve on demurrer.

Dated: April 8, 2002
By: ________________________________
Teresa Aguilar, Plaintiff pro se

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO DEFENDANTS' DEMURRERS
I. INTRODUCTION
The complaint alleges that plaintiff Teresa Aguilar, a real estate broker, suffered damages as a result of the defendants acting in concert, using plaintiff's real estate services to their benefit and colluding to leave plaintiff out of her transaction, without compensation as promised even after defendants Chang and Patels constantly encouraged her to continue with her efforts while the defendants schemed to finalize the transaction behind her back. After plaintiff complied with defendants' demands -- finding a buyer for Chang's property, and finding a property for Patel and his assignees -- she was defrauded of her commission by defendants.
On March 15 and/or 18, 2002, defendant Mike Chang demurred to Plaintiff complaint on grounds alleging "all causes of action are barred by res judicata" and that "all causes of action fail to state facts sufficient to constitute a cause of action and uncertainty."
A hearing has been set for April 17, 2002, at 8:30 A.M. in Department 44 of this Court, at the Los Angeles County Courthouse, located at 111 N. Hill Street, Los Angeles, CA 90012.
II. ARGUMENT
A.
DEFENDANT HAS UNCLEAN HANDS AND IS NOT ENTITLED TO
RES JUDICATA AND CANNOT MEET HIS AFFIRMATIVE DEFENSES
Defendant Chang's intentional self-contradictions were used as a means of obtaining unfair advantage, and his inconsistent arguments and efforts to suppress evidence (See Attachments 1,2,3) are sufficient to invoke the unclean hands doctrine since these actions are clearly attributable to his intentional wrongdoing and to his efforts to conceal the facts [Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal. App. 4th 497, 509-510, 85 Cal. Rptr. 2d 352 ].
In Michelson v. Camp (1999) 72 Cal. App. 4th 955, 959-961, 970-971, 85 Cal. Rptr. 2d 539 the court held that the defendant's deliberate inconsistencies are tantamount to a knowing misrepresentation and even fraud on court. Likewise, this claim cannot be barred by the prior judgment. The defense misrepresentations were knowing to defendant Chang and to his counsel, Mr. Jones, and were made with the specific intent to cheat appellant out of due process and to defraud the court. Defendant Chang's testimony and Mr. Jones assertions were fraudulent in an effort to establish a meritless defense. Defendant Chang has "dirty hands," in the sense that he violated an interest of the plaintiff's. In November 2000, in Chang's deposition of Plaintiff, Chang's lawyer asked Plaintiff: "Did you ever tell Mr. Chang, "Look, why don't you just sell it for [$] 2.1 [million] and not give me all the extra money and I'll take my 3 percent?" (Attch 3), but, in court under oath, and other motions, Chang denied ever offering a commission to Plaintiff (Attch 2). This action alone supports the unclean hands doctrine, which does not entitle defendant Chang to a res judicata affirmative defense. (See Church of Scientology v. Wollersheim Cite as: 96 C.D.O.S. 733.)
B.
COMPLAINT IS NOT BARRED BY CLAIM PRECLUSION WHEN COMPLAINT INVOKES TWO DIFFERENT "PRIMARY RIGHTS" DEFENDANTS ARE THEREFORE NOT IN PRIVITY WITH DEFENDANT CHANG
Aguilar v. Chang action focused on the "breach of contract" of Chang's wrongdoing, while this present action of Aguilar v. Patel ..., is directed to damages caused by interference of defendants Jade and patel, and other discriminatory issues illustrating that both cases invoked two different "primary rights," hence, the Patels and Jade interference are not in privity with Chang's breach. Environmental World Watch v. Cummins Engine (1999) Cal.App.2d. Aguilar v. Patel litigation was not present in the Aguilar v. Chang action, since there are different damages for interference by the Patels and Jade as opposed to Chang's breaches; their discriminatory tactics where not adjudicated much less decided. The Interference and breach claims were against Chang not Patel.
C.
ISSUE PRECLUSION ONLY PRECLUDES RELITIGATION OF ISSUES "ACTUALLY" LITIGATED AND DETERMINED IN THE PRIOR ACTION
The plaintiff's other causes of action — for damages of conspiracy, intentional infliction of emotional distress, retaliation, fraud by concealment of evidence, [Attach 1, 2] and by defendant's doctoring of binding documents [Attch 4], discrimination, interference against defendants Patel and Jade Escrow — are not barred by res judicata because these issues were not adjudicated, much less actually decided, in the prior action. In Taylor v. Hawkinson (1957) 47 Cal. 2d 893, 895-896, 306 P.2d 797 the court held that "... issue preclusion only precludes relitigation of issues actually litigated and determined in the prior action.
D.
AS IMPORTANT AS IT IS THAT RES JUDICATA'S ASPECTS NOT BE UNDERCUT, IT IS EVEN MORE IMPORTANT THAT INDIVIDUALS
NOT BE DEPRIVED OF DUE PROCESS"
Issue Preclusion may be applied only if due process requirements are satisfied [ Clemmer v. Hartford Insurance Co. (1978) 22 Cal. 3d 865, 875, 151 Cal. Rptr. 285, 587 P.2d 1098 ; Bernhard v. Bank of America (1942) 19 Cal. 2d 807, 811-812, 122 P.2d 892 ; White Motor Corp. v. Teresinski (1989) 214 Cal. App. 3d 754, 761, 263 Cal. Rptr. 26 ]. Due process requirements were not satisfied in Aguilar v. Chang, when: a) defendant did not provide to plaintiff the evidence she requested of him [Attach 1, 2]; b) defendant Chang 's and his counsel's perjured testimony was fed to the court [Attach.5]; c) the trial court does not answer plaintiff's questions, e.g., telling her "I [pro tem judge] don't repeat myself" when plaintiff asked what was the document the judge had just told defendant's counsel was missing, yet, when the opposite attorney or other lawyers ask questions the trial court politely answered to them; d) defense undermines plaintiff's case by misleading her with misinformation, e.g.: 1) telling the court that plaintiff's best precedent, Torelli v. J.P. Enterprises, was unpublished when it was well known that Torelli was published in 1998, causing more confusion and stress on plaintiff [see Attch 5]; 2) Mr. Jones telling plaintiff that the wrong document was missing when the pro tem judge would not repeat the information plaintiff requested (see item 'c' above); e) the trial court tells plaintiff "why are you looking at an 'old' motion for" when plaintiff tried to prove the defense's inconsistencies in its testimony and contradictions in its motions to the court [see Attch 6]; f) the trial court tells plaintiff not to speak unless she is told to, leaving her to say very little, but allowing opposing party to talk all he wants without interruptions, and when plaintiff tried to say something by saying, "if I may speak your honor ..." the judge pro tem snapped "you don't have to keep saying that"; g) and so it went, plaintiff's due process indeed. The issue above becomes one of law, which Plaintiff shall resolve in the proper district court. In City of Sacramento v. State of California (1990) 50 Cal. 3d 51, 64, 266 Cal. Rptr. 139, 785 P.2d522 the court ruled that when the issue is a question of law rather than one of fact the prior determination is not conclusive if injustice would result or if the public interest requires that relitigation not be foreclosed. Further, the defense knew, or reasonably should have known that they arbitrarily, and deliberately, meshed in actions that deprived the plaintiff of her due process rights in violation of Rule 62(A) and Rule 63(A), and that they knowingly engaged in conduct to interfere with the plaintiff's due process.
E.
PUBLIC POLICY OF UNCLEAN HANDS OUTWEIGHS THE PUBLIC POLICY UNDERLYING THE DOCTRINE OF RES JUDICATA
Moreover, the Court's ruling must be based on its determination that the public policy of preventing fraud to perpetuate fraud, condoning perjured testimony, the braking of agreements at will, and discriminatory tactics, outweighed the public policy underlying the doctrine of res judicata, at least as applied on the facts of this case. The defense unlawfully obstructed plaintiff's access to evidence by telling her to go get the evidence herself from escrow (Attch. 4) when the defendant as a real estate broker knew he had to preserve copies of all documents in a transaction for three years from origination. Defendant Chang also unlawfully altered plaintiff purchase agreement by cutting her name and the commission clause from page eight, tampering with a binding document [Attach. 4] in an effort to destroy and conceal facts with potential evidentiary value in violation of Model Rule 3.4(a). Defendant Chang promise to give but never gave to plaintiff an offer he claimed to have from an Ishishi Patel, yet showed up in court with a copy of page one of an old fainted doctored Offer, willfully suppressing evidence.
F.
FOR ISSUE PRECLUSION TO APPLY,
THE ISSUE DECIDED IN THE PRIOR ADJUDICATION MUST BE "IDENTICAL"
WITH THE ISSUE PRESENTED IN THE INSTANT ACTION
There are matters that were not adjudicated in the Aguilar v. Chang action much less decided by the court. The dominant issue in Aguilar v. Chang was defendant's "Breach"; that is, breach of contract and breach of the covenant of good faith. But the dominant issues in Aguilar v. Patel action are Damages for other issues as: discrimination, interference (by the Patels, not by Chang), conspiracy, intentional infliction of emotional distress, and fraud (by Patel). In Hollis v. Hollis , 650 So. 2d 1371, 1377 (Miss.1995) the court ruled that collateral estoppel only bars relitigation of issues that were actually decided in the prior action.
For issue preclusion to apply, the issue decided in the prior adjudication must be identical with the issue presented in the instant action [ Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal. 3d 903, 910, 226 Cal. Rptr. 558, 718 P.2d 920 ; Wimsatt v. Beverly Hills Weight Etc. Internat., Inc. (1995) 32 Cal. App. 4th 1511, 1516, 38 Cal. Rptr. 2d 612 ]. The doctrine of collateral estoppel depends on what issues were adjudicated, not the nature of the proceeding or the relief requested [ Lumpkin v. Jordan (1996) 49 Cal. App. 4th 1223, 1231, 57 Cal. Rptr. 2d303 ]. The issues must have been litigated and determined in the first action [Taylor v. Hawkinson (1957) 47 Cal. 2d 893, 895-896, 306 P.2d 797 (collateral estoppel not found); Nash v. Workers' Comp. Appeals Bd. (1994) 24 Cal. App. 4th 1793, 1812-1813, 30 Cal. Rptr. 2d 454 (collateral estoppel not found); Corral v. State Farm Mutual Auto. Ins. Co. (1979) 92 Cal. App. 3d 1004, 1010, 155 Cal. Rptr. 342 (collateral estoppel not found)].
No aspect of what was decided in the previous proceeding can be left to conjecture on the record, and if it is left to conjecture, estoppel is inapplicable [ Silver v. Los Angeles County Metropolitan Transportation Authority (2000) 79 Cal. App. 4th 338, 357, 94 Cal. Rptr. 2d 287 ; see Dunkin v. Boskey (2000) 82 Cal. App. 4th 171, 181-182, 98 Cal. Rptr. 2d 44 (it must appear precise question was raised and determined in former suit)]. In this action, the fraud claim could not even be mentioned according to trial judge pro tem, much less raised and determined rightfully by a jury (See Attch.10.) The trial court in the previous action mentions only: a) Breach of Contract, b) Interference (by Chang, not Patel), c) Breach of Implied Covenant of Good Faith ..., d) Fraud; the fraud claim was dismissed by the court under protest of Plaintiff. Plaintiff stated "may the record show that Plaintiff objects to the court's removal of Plaintiff's claim of fraud." At which time the court removed it and went on to say that Plaintiff had agreed. Plaintiff shall pursue this issue in the District Court at a later date.
1. In the Fifth Count plaintiff alleges the intentional infliction of emotional distress, not previously litigated. Unprivileged conduct that subjects another to economic ruin has been considered outrageous. Sanchez-Correa v. Bank of America (1985) 38 Cal.3d 892, 908-909; cf. Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 67. In Wollersheim v. Church of Scientology (1989) 212 Cal.App.3d 872, 881-882, the court held that the defendant's intentional financial ruination of an apostate member constituted extreme and outrageous conduct. In this case, plaintiff alleges that defendants intentionally led her to work on this transaction, at the exclusion of others, by making her believe that she would be compensated not only the 3% commission she had asked for but even increased her commission expectancy to 6%. But once defendants had acquired the benefit of plaintiff's real estate work, they not only terminated her services but worked behind her back to close the transaction she started. In the process, they subjected her to ill treatment, misrepresentations, and required her to perform several tasks they knew she was not going to be paid for. They then locked her out of the transaction by not being available when communications were indispensable and were extremely necessary when they knew time was of the essence. This destruction of plaintiff's livelihood through chicanery and deceit constitutes outrageous conduct and subjects defendant to liability for the intentional infliction of emotional distress.
G.
RES JUDICATA IS INAPPROPRIATE AS A DEFENSE
AT THE DEMURRER STAGE
Res judicata is inappropriate as a defense at the demurrer stage since there are many undecided issues remaining that were never adjudicated, nor decided. Furthermore, many facts alleged herein above, justify setting the prior judgment, on the breach of contract action, aside [ Bennett v. Hibernia Bank (1956) 47 Cal. 2d 540, 554, 305 P.2d 20 ; Henry v. Clifford (1995) 32 Cal. App. 4th 315, 320, 38 Cal. Rptr. 2d 116; Frommhagen v. Board of Supervisors (1987) 197 Cal. App. 3d 1292, 1299-1300, 243 Cal. Rptr. 390] due to defendant's perjured testimony, willful suppression of evidence, and his counsel's untruths [Attachs 1, 2, 5.]
CONCLUSION
There are genuine issues of material facts not adjudicated in the prior proceedings, hence, the court must rule in favor of plaintiff, and promptly schedule a jury trial.
Dated: April 9, 2001
Respectfully submitted,


By: ____________________________
Teresa Aguilar,
Plaintiff pro se


Teresa Aguilar P.O.Box 24-B-09 Los Angeles, California 90024 310-358-5924 In Pro Per
CASE NO: BC230208
OPPOSITION OF PLAINTIFF TO DEMURRER OF DEFENDANT
JADE ESCROW
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
DATE: May 2, 2002 TIME: 8:30 A.M. DEPT: 44 ACTION FILED: Feb. 11, 2002
Plaintiff TERESA AGUILAR hereby answers and opposes defendant JADE ESCROW, and/or all other defendants, et al., demurrer(s) to plaintiff's complaint. This action is essentially for damages of conspiracy, discrimination, interference, intentional infliction of emotional distress, retaliation, and fraud case. Plaintiff's complaint entails matters to be decided by a resolution of the factual issues involved — and thus improper to resolve on demurrer.
Dated: April 8, 2002
By:
Teresa Aguilar, Plaintiff pro se
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO DEFENDANTS' DEMURRERS
I. INTRODUCTION
The complaint alleges that plaintiff Teresa Aguilar, a real estate broker, and plaintiff pro se seeking to redress her grievance, not in a vexatious manner but in a plea seeking to hold defendants accountable for their fraudulent conduct, suffered damages as a result of the defendants' wrongdoing acting in concert against plaintiff, and who used her real estate services to their benefit and did not compensate plaintiff as promised by Defendant Chang even after they constantly encouraged her to continue with her efforts while the defendants colluded to finalize the transaction behind her back. After plaintiff complied with defendants' demands, she was never paid the commission promised, and Jade Escrow knew of the existence of the agreement between defendant Chang and Plaintiff, yet wrongfully opted to conspire to deprive plaintiff of the commission by negligently releasing all the proceeds to Defendant Chang who had Wang absconded with the proceeds to Taiwan.
On March 25, 2002, defendant Jade Escrow (hereinafter referred to as Jade) demurred to Plaintiff complaint on grounds alleging that plaintiff does not state a cause of action.
A hearing has been set for May 2, 2002 at 8:30 A.M. in Department 44 of this Court, at the Los Angeles County Courthouse, located at 111 N. Hill Street, Los Angeles, CA 90012. Plaintiff ask the court to join defendant's Chang hearing date of April 17, 2002 at 8:30 A.M. in Department 44 of this Court, to the May 2, 2002 date.
That plaintiff pro se may write a complaint in the wrong format does not mean that her causes of action evaporate at the will of defendant. The facts are clear, and the defendants' state of mind palpable; their assertions of no wrongdoing shows that they do not recognize their offenses, may not correct their misconduct, and will continue to defraud the unsuspected public.
II. ARGUMENT
1.
JADE ESCROW HAD KNOWLEDGE OF THE EXISTENCE OF THE CONTRACT TO PAY A BROKER'S FEE, AND SHOULD HAVE HELD ONTO THE MONEY BECAUSE IT HAD A "DUTY" TO DO SO.
As asserted by Jade escrow (see Defendant Jade Escrow Demurrer to Complaint dated 3/25/02, Page 1, Paragraph 2, Lines 24,25) it had knowledge of the existence of the contract between defendant Chang and Plaintiff in which Jade was timely notified of defendant Chang's agreement to pay plaintiff the 6% commission, yet, Jade decided not to pay any of the commission to plaintiff as the broker; therefore, plaintiff must be awarded damages pled, for Jade Escrow's intentional interference with Plaintiff's contractual right to her commission. [145 Cal.App.3d 1002] conspiring with the other defendants to deprive plaintiff of her earnings by not holding amount due to her and releasing the entire funds to Chang who entrusted the assets to Wang who absconded to Taiwan. In Routh v. Quinn (1942) 20 Cal.2d 488 [127 P.2d 1, 149 A.L.R. 215 the court held "We can conceive of no requirement that, to afford an assignee the right to recover assigned funds, held in escrow, the escrow holder must owe to the assignee some "legal duty" or have entered into a contract with the assignee."
It would be a terrible precedent if sellers could cancel their agreements to third parties at will. Jade should have held onto the money because it had a "duty" to [CONTEMPORARY INVESTMENTS, INC. v. SAFECO TITLE INS. CO. , 145 Cal.App.3d 1003] do so. Thus, Jade should not have released the funds to the sellers because Jade had clear knowledge of the existence of the agreement providing to pay a broker's fee to Plaintiff.
2.
JADE INTERFERED WITH THE CONTRACT BY RELEASING THE FUNDS.
In Contemporary Investments, Inc. v. Safeco Title Ins. Co. , 145 Cal.App.3d 999, the trial court found Safeco interfered with the contract by releasing the funds. In this action, Plaintiff asserts her claim that Jade had no duty to obey defendant Chang reneging and canceling payment of the commission he promised in writing to plaintiff. Civil Conspiracy and Interference with Contractual Relations, 8 LOYOLA L.A. L. REV. 302, 308, n.28 (1975). Defendant Chang even increase commission payment from 3% to 6% of purchase price, evidencing his satisfaction with plaintiff's real estate services.
The elements of a cause of action for inducing breach of contract 'are: (1) that a valid contract existed between the plaintiff and another party; (2) that the defendant had knowledge of the contract and intended to induce a breach thereof; (3) that the contract was breached, (4) as a proximate result of the defendant's wrongful or unjustified conduct, (5) resulting in damage to the plaintiff.'" (Mayes v. Sturdy Northern Sales, Inc. (1979) 91 Cal.App.3d 69, 78 [154 Cal.Rptr. 43].) (1) Jade knew of the valid agreement existed between plaintiff and Defendant Chang; (2) Jade had knowledge of the contract and the discovery face will show its involvement in this action; (3) the contract was breached by Chang; (4) as a result of Jade not holding the amount of the commission due to Plaintiff; (5) resulting in damages to plaintiff.
In Wise v. Southern Pac. Co., 223 Cal. App. 2d 50, 35 Cal. Rptr. 652 (1963), the Wise court did hold that a party to a contract could be held liable for a civil conspiracy to interfere (tortuously) with [a] ... contract.
3
JADE HAD KNOWLEDGE OF THE AGREEMENT,
INTERFERED WITH THE COMPLIANCE OF THE AGREEMENT BY
NOT HOLDING THE COMMISSION DUE TO PLAINTIFF,
By Jades's own words, Plaintiff has met her burden of proof on the issue that Jade had knowledge of the agreement of Defendant Chang to promise to pay plaintiff, interfered with the compliance of the agreement by not holding the commission due to plaintiff.
In Ogdahl v. Title Ins. & Trust Co. (1977) 72 Cal.App.3d Supp. 41 [ 140 Cal.Rptr. 148, the court cites the rule that when the escrow agent has been notified the proceeds of sale have been assigned to a third party, he must pay the funds despite the attempts of the assignor to cancel. Builders' Control Service of No. Cal., Inc. v. North American Title Guar. Co. (1962) 205 Cal.App.2d 68, 70 [22 Cal.Rptr. 712] is given as authority. In Builders', the complaint alleged a third party had assigned the sale proceeds to Builders'. The title company acted as escrow agent for the assigned funds but refused to pay the funds to Builders'. The court also noted: "[O]nce ... the escrow holder [is] notified of the assignment, the escrow holder must observe such assignment, even though the assignor should give it contrary instructions." (Id, at p. 73.)
In Feinberg v .Intrastate escrow Corp. (1963) 216 Cal.App.2d 80, 82-84 the court held that a plaintiff, who was the third party beneficiary of an escrow that was secretly canceled, was entitled to recover against the escrow holder under estoppel principles. Thus, it should follow that a third party beneficiary of an escrow that was secretly wrapped up and consummated, should also be entitled to recover against the escrow holder under estoppel principles.
As stated above, Jade, the escrow holder had notice that [215 Cal.App.2d 682] defendant Chang had promised in writing to pay plaintiff the 6% commission. It is the duty of an escrow holder to exercise ordinary skill and diligence (Amen v. Merced County Title Co., supra, 58 Cal.2d 528, 532; Rianda v. San Benito Title Guar. Co., supra, 35 Cal.2d 170, 173), and if escrow acts negligently it is responsible for any loss occasioned thereby, [215 Cal.App.2d 683]. (Amen v. Merced County Title Co., supra, 58 Cal.2d 528, 532; Rianda v. San Benito Title Guar. Co., supra, 35 Cal.2d 170, 173; Karras v. Title Ins. & Guar. Co., supra, 118 Cal.App.2d 659, 665.)
Whether this conduct, under all of the circumstances, amounts to a failure of the escrow holder to exercise ordinary skill and diligence that constitutes negligence, [215 Cal.App.2d 684] is a question of fact for determination by a jury.
Ordinarily the issue of damages in negligence actions present questions of fact (Hilyar v. Union Ice Co., 45 Cal.2d 30, 37 [286 P.2d 21]; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 319 [282 P.2d 12]); the state of the evidence in the instant case does not justify a determination thereof as a matter of law; and defendant escrow holder's contention to the contrary would be without merit.
4.
WHEN THE ESCROW AGENT IS NOTIFIED THAT
THE PROCEEDS OF SALE HAD BEEN ASSIGNED TO
A THIRD PARTY, ESCROW IS REQUIRED TO DISBURSE FUNDS
"... the [escrow] agent is required to disburse funds to [a] creditor even though the party to the escrow attempts to cancel the agent's authority." (2 Miller & Starr, The Current Law of Cal. Real Estate (1968 ed.) Ownership, § 285, p. 361; e.g., Warrington Lbr. Co. v. Fullerton Mtge. & escrow Co. (1963) 222 Cal.App.2d 706, 711 [35 Cal.Rptr. 423].) The same basic rule applies when the escrow agent is notified that the proceeds of sale had been assigned to a third party. (See Builders' Control Service of No. Cal., Inc. v. North American Title Guar. Co. (1962) 205 Cal.App.2d 68, 70 [22 Cal.Rptr. 712].) Discovery will show the motive behind escrow wrongful actions of releasing all proceeds without withholding Plaintiff commission when notified of the existence of an agreement for Plaintiff to be paid
CONCLUSION
The transaction involved here is not an uncommon one; it constituted an agreement to a commission payment. One should find no reason in the decisions or in commercial practice why such an assignment should not be recognized by an escrow holder who has received notice of it. [BUILDERS' CONTROL SERVICE OF NO. CAL., INC. v. NORTH AMERICAN TITLE GUAR. CO., First Dist., Div. One. 1962 205 Cal.App.2d 68.]
Plaintiff's complaint entails matters to be decided by a resolution of the factual issues involved -- and thus improper to resolve on demurrer. Furthermore, there are genuine issues of material facts not adjudicated in the prior proceedings, hence, the court must rule in favor of plaintiff, and promptly schedule a jury trial.
Dated: April 9, 2001

Respectfully submitted,
By:
Teresa Aguilar,
Plaintiff pro se

Teresa Aguilar
P.O.Box 24-B-09
Los Angeles, California 90024
310-357-5924, 213-387-4079
In Pro Per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
CASE NO: BC268016
NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF RULING ON DEMURRER OF DEFENDANTS CHANG AND JADE TO OPPOSITION OF PLAINTIFF TO DEMURRERS AND
FOR THE COURT DENYING THE MOTION TO STRIKE DEFENDANT PATEL'S ANSWER TO COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
DATE: June 26, 2002
TIME: 8:30 A.M. DEPT: 44 ACTION FILED: Feb. 11, 2002
To the above-named defendants and to their attorneys:
NOTICE IS HEREBY GIVEN that, on June 26, 2002, at 8:30 A.M., or as soon thereafter as the matter may be heard, in Department 44 of this Court, located at the Los Angeles County Courthouse, located at 111 N. Hill Street, Los Angeles, CA 90012, plaintiff will, and hereby does, move for an order for reconsideration of an order setting aside, the order of this court, the Honorable Reginald A. Dunn presiding, sustaining defendant's demurrer to plaintiff's complaint without leave to amend made on May 2, 2002, and for an order Denying Motion to Strike defendant Gunvant Patel's Answer and its contradictions. The motion is made on the ground that a plaintiff pro se with a grievance should not be denied due process based on technicalities, but decisions should be based on the merit of her complaint.
The motion is based on this notice of motion, on the memorandum of points and authorities and the proposed amended complaint served and filed herewith, and on the records and file herein.


Dated: May 13, 2002
By: ________________________________
Teresa Aguilar, Plaintiff pro se


MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO DEFENDANTS' DEMURRERS
I. INTRODUCTION
The complaint alleges that plaintiff Teresa Aguilar, a real estate broker, suffered damages as a result of the defendants acting in concert, using plaintiff's real estate services to their benefit and colluding to leave plaintiff out of her transaction, without compensation as promised even after defendants Chang and Patels constantly encouraged her to continue with her efforts while the defendants schemed to finalize the transaction behind her back with same terms as negotiated by plaintiff less part of her commission, after plaintiff complied with defendants' demands -- finding a buyer for Chang's property, and finding a property for Patel and his assignees. At close of escrow, Defendant Jade refused to hold Plaintiff earned commission after Plaintiff notified Jade of the assignment and gave a copy of Defendant Chang's signed counter offer where the promise to pay the 6% commission was memorialized.
Defendants Chang and Defendant Jade demurred, and Defendant Patel "Answer to Plaintiff Complaint" included 84 plus denials that contradicted his 17 separate affirmative defenses, and other matters that were wholly vague and that it otherwise admitted the material allegations of the complaint.
On May 2, 2002, the court sustained defendants demurrers to plaintiff's complaint without leave to amend as a reward for defendant Chang's not even showing up to the April 17, 2002, 8:30 A.M. hearing and notifying no one of his intent to be absent. At the May 2, 2002 hearing Patel's defense was late and the court rewarded this defendant by not striking his Answer to Plaintiff Complaint and condoning all the contradictions between defendant's denial and his affirmations. Plaintiff untimely motion, due to her unfamiliarity with the court, has nothing to do with the merits of her case, and in order to resolve the case, her day in court should not be denied. An unprejudiced court would have overruled defendant's demurrers for his untimely absence, and plaintiff is hereby asking the court to strike defendants' demurrers if there is to be fair due process.
PRO SE LITIGANTS ENSURED MEANINGFUL ACCESS TO THE COURTS
In RAND V. ROWLAND, 154 F3d 952 (9th Cir. 1998) the court ruled that
Pro se Litigants ensured meaningful access to the courts, and Plaintiff ask this Court, if allowable, to appoint an attorney to 'assist' Plaintiff with the paper-trail part of her plea since it seems that otherwise Plaintiff will always be denied due process. Defendant Chang nor his attorney showed up in Court for the scheduled April 17, 2002 hearing. At the May 2, 2002 hearing, the Court granted a motion to vacate due to the fact that an opposing attorney did not show up for a hearing. Plaintiff feels, and is herein asking the court, that she be accorded the same treatment as given to others in the same circumstances, and consequently for the Court to penalize Chang's defense in the same manner, and do not instead compensate defendants by sustaining their demurrers and denying Plaintiff's motion to strike Defendant Patel's contradiction-riddled-answer to Plaintiff's Complaint. Furthermore, if there is to be meaningful due process for plaintiff, the court cannot overlook defendant's fraudulent and perjured testimony which leaves him not entitled to preclusions. The claim of fraud against Defendant Chang was dismissed by the previous court at the request of defendant and over plaintiff's objection, and must be tried and decided. Plaintiff must be relief from previous judgments and orders by evidence of want of jurisdiction in court, defense withholding evidence from plaintiff, and of fraud in the defense, leaving plaintiff without a fair hearing on issues. A defendant who chose to defraud a party cannot claim protection from controversy and expense at any stage.
In US V. KIND, 194 F3d 900 (8th Cir. 1999), the court stated that Pro se defendants have right of access to adequate assistance from persons trained in law, hence Plaintiff feels an attorney should be appointed by this Court to assist Plaintiff with her questions at least, when it is not made clear to Plaintiff what is it that the court wants where the Court's requests are not clear to Plaintiff and where opposing attorneys file contradictory, and meritless contentions in their motions, do not show up without notifying Plaintiff, do not provide requested evidence, etc.
COURTS WILL GO TO PARTICULAR PAINS TO PROTECT PRO SE LITIGANTS AGAINST CONSEQUENCES OF TECHNICAL ERRORS IF INJUSTICE WOULD OTHERWISE RESULT
Court should freely give complainant, especially pro se's, leave to amend defective allegation in pleading (McCLELLON V. LONE STAR GAS CO., 66 F3d 98 (5th Cir. 1995). Plaintiff in this action was not given the opportunity to amend. It is clear that Plaintiff meritorious grievance is not being redress due to technical issues. Plaintiff should have the right to obtain Interrogatories and Documents from defendants in order for her to proceed with discovery.
Jade Escrow aided, cooperated, and assisted in Defendant Chang noncompliance, conspiring to interfere with the agreement for plaintiff to receive her commission by not holding the funds due to her under that agreement.
DEFENDANT JADE IS LIABLE TO PLAINTIFF FOR FAILING TO COMPLY WITH AN AGREEMENT VOLUNTARILY UNDERTAKEN BY DEFENDANT
Escrow Holder's Liability to Third Party. When an escrow agent intentionally makes himself or herself a party to a contract with a third party to the original escrow, recovery can be had against the escrow agent for failing to comply with the terms of the contract (Warrington Lumber Co. v. Fullerton Mortgage & Escrow Co. (1963) 222 Cal. App. 2d 706, 710, 35 Cal. Rptr. 423) [Deering's.] An escrow holder is liable for a broker's commission when there was knowledge by the escrow holder of an agreement providing for a brokerage commission and therefore is liable for interference with a brokerage contract; the court must allow for developments of the facts through discovery. The jury must be allowed to decide whether the Defendants' misrepresentations and contradictions are material, a conduct made to affect plaintiff's attitude, action and to discourage, mislead and deflect plaintiff efforts.
Additionally, an escrow holder is liable for a broker's commission when there is knowledge by the escrow holder of an agreement providing for a brokerage commission therefore recovery must be had against the escrow agent for failing to comply with the terms of the agreement between Defendant Chang and Plaintiff.
All factual disputed issues must be resolved by the trial of fact weighing all the declarations, other documentary evidence, oral and written testimony to reach a final decision. Therefore, Plaintiff must be allowed to continue with due process.
CONCLUSION
For the above reasons, and due to the fact that (1) Defendant Chang untimely not showing up to the scheduled April 17, 2002 hearing and not notify Plaintiff of any intended changes; (2) Defendant G.Patel contradictory allegations. His Answer to Complaint dated March 25, 2002, unnumbered page 2, Paragraph 6, Line 11, states "Gunvant Patel ... DENIES any acts, ..." denying everything. And, Fourteenth Affirmative Defense states: "... all acts or [sic] this answering defendant were justified." Not only admitting his previously denied acts, but justifying them! (3) Defendant Jade continuing assertions of no wrongdoing showing its refusal to recognize their offenses, may not correct their misconduct, making it essential to continue with due process with no further delays, (4) previous case was not fairly litigated and determined, Plaintiff ask the Court to 1) continue with this trial, 2) allow for the Defendants to comply with the rules by answering Plaintiff's interrogatories and demand for documents, 3) to set a jury trial date.
Dated: May 13, 2002 By: ________________________________
Teresa Aguilar, Plaintiff pro se

CASE NO: BC268016
PROPOSED AMENDED COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
DATE: June 26, 2002 TIME: 8:30 A.M. DEPT: 44 ACTION FILED: Feb. 11, 2002
COMES NOW the plaintiff Teresa Aguilar and for his causes of action against the named Defendants states the following:
1. Plaintiff Teresa Aguilar is a resident of Los Angeles, California.
2. Defendants are charged with new cause of action, a RICO claim against all defendants.
3. Defendants Ken Patel, and Ms. M. Kao, of Jade Escrow, are herein added to this Complaint.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against all Defendants, as follows:
A. For all fees and expenses incurred herein;
B. For costs of the action incurred herein; and
C. For such other and further relief as the court deems just and proper.
Dated: May 13, 2002 Respectfully submitted,
By: ________________________________
Teresa Aguilar, Plaintiff pro se
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PROPOSED AMENDED COMPLAINT
I. INTRODUCTION
Plaintiff, a real estate broker, found a buyer for Defendant Chang's property. Plaintiff presented to Defendant Chang a standard form real estate purchase contract signed by the buyer, Defendant Gunvant Patel which called for the broker to be paid a 3 percent commission. The Defendant Chang signed a counteroffer, which, with several exceptions not relevant to this complaint, accepted the terms of the offer set out in the purchase contract, including a 6% commission arrangement. The counteroffer was not accepted but the defendants began negotiating on their own and soon came to an agreement on substantially the same terms as it contemplated in the counteroffer without paying Plaintiff the agreed commission. Jade Escrow aided, cooperated, and assisted in Defendant Chang and Patel noncompliance, conspiring to interfere with the agreement for plaintiff to receive her commission by not holding the funds due to her under that agreement.
On May 2, 2002, the court erred in finding that Plaintiff failed to comply with the statutory time requirement and denying appellant's motion to strike defendant Patel's answer without leave to amend, and sustaining Chang and Jade's demurrers, since such determination must be based on the substantive issues raised by Plaintiff on the merits. These actions do not constitute "adequate remedies at law" for the purpose of denying a Plaintiff to amend at a demurrer stage.
In this proposed amended complaint, plaintiff asserts a RICO claim against defendants. Defendants Patel allegedly conduct many transactions in a similar manner, where the Patels utilize alter-egos or straw-men, to purchase properties presented to them by others and play parties against each other while leading real estate professionals to believe they are earning a commission when all the defendants have them do is work, then, deny implied representation. The Patels secure an option to acquire a property through one broker then enter into additional negotiations through others, open an escrow to purchase the property while still encouraging the broker who presented the property to them in the first place, and leading them to believe they would be representing them in the transaction allowing the broker to earn the commission.
The Patels form a RICO enterprise by associating in fact to conduct the above described fraudulent real estate transactions. Each Defendant seemed to be in charge of and played a vitally important role in controlling and managing a specific phase of the enterprise's activities. Specifically, Defendant G.Patel placed himself in charge of locating and securing the right to purchase the properties at one cost. While the other Patels also direct G.Patel to make other offers on the same property at different price excluding an "unsuspecting" broker's commission and to misrepresent the through scheme in which one of the Patels seemed to be in charge of having the one group execute real property purchase agreements, while another negotiate the price down to exclude broker's commission after benefiting from broker's real estate services. In return for their respective roles, all the Patels profit from the conspiracy. It is clear, that the Patels, as associates, functioned as a continuing unit. Defendant G.Patel is still claiming to be the owner of a motel at Beverly Blvd., yet he does not explain why the need exists for the motel to be under the name of another Patel, explicitly evidencing the Patels to be repeated offenders, proving the existence of an enterprise at all times (Turkette, 452 U.S. at 583) and exhibiting some sort of structure that provides some mechanism for controlling and directing the affairs of the Patel group on an on-going basis, clearly illustrating an organization separate and apart from that inherent in the perpetration of the alleged fraudulent actions and interference to deprive plaintiff of her commission.
The decision-making apparatus that guided Defendants Patel in the performance of their respective duties has the purpose to cover each other interests, for the benefit of the whole enterprise. The proceeds to purchase the subject property, seemed to come from the controlling enterprise, the structure for decision making, with some interim financing machination, allegedly diverting funds from one place to another, that the court must allow the [trier] of fact to mull over by the trier of fact.
The Supreme Court has held that a group of individuals associated in fact for wholly unlawful ends could constitute an enterprise for purposes of RICO. United States v. Turkette, 452 U.S. 576, 580. The organizational nexus at the heart of the Patel scheme, has access to resources that pose a special threat to legitimate business in the real estate industry. The Patel enterprise, conspired to interfere with Chang-Aguilar agreement, "maliciously" interfered with the contract by "enticing" Chang to abandon his agreement with Plaintiff that Defendant Chang memorialized in his counter offer dated March 4, 2000.
In addition, Defendant Chang was very secretive as to the subject property being for sale all through the transaction. Yet, this court does not give plaintiff the opportunity to continue with her discovery efforts. And, Jade Escrow sent a letter to Plaintiff denying payment of her commission, then the letter was stolen from Plaintiff's place of business, never to be seen again, a factual matter and as such properly in the domain of the trier of fact.
For the above reasons, Plaintiff ask the Court to 1) continue with this trial,
2) order the Defendants to comply with the rules by answering Plaintiff's interrogatories and demand for documents, 3) to set a jury trial date.
Dated: May 13, 2002
By: ________________________________
Teresa Aguilar, Plaintiff pro se