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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT

ELIZABETH B. GRIFFITH, JOHN GRIFFITH, ROYEL GRIFFITH, Plaintiffs and Appellants V. ALLSTAR FINANCIAL SERVICES INC., ET AL., PACIFIC COAST BUILDERS INC., ET AL. Defendants and Respondents

Court of Appeal No.: C072123

Superior Ct. No.: S-CV-0024987

Appeal from a Judgment of the Superior Court State of California, County of Placer The Honorable Michael A. Jacques, Commissioner ____________________________________

APPELLANTS OPENING BRIEF


_____________________________________

Elizabeth B. Griffith, John Griffith, Royel Griffith 3881 Eureka Rd., #1102 Roseville, CA 95661 Cell # 916-410-1619 (John) r1master3@yahoo.com

Appellants in Pro Per

TABLE OF CONTENTS

TABLE OF CONTENTS ----------------------------------------------------------------- i TABLE OF AUTHORITIES-------------------------------------------------------------- ii STATEMENT OF THE CASE ----------------------------------------------------------- 1 STATEMENT OF APPEALABILITY -------------------------------------------------- 2 STATEMENT OF FACTS ---------------------------------------------------------------- 2 ARGUMENT ------------------------------------------------------------------------------- 6 CONCLUSION ----------------------------------------------------------------------------- 8 CERTIFICATE OF WORD COUNT --------------------------------------------------- 9 PROOF OF SERVICE ------------------------------------------------------------------- 10

TABLE OF AUTHORITIES

CASES
McBride v. Boughton (2004) 123 Cal. App. 4th 379, 385 ----------------------------- 6 Saunders v. Cariss (1990) 224 Cal. App. 3rd 905 -------------------------------------- 6 Poggi v. Scott (1934) 167 Cal. 372 ------------------------------------------------------ 5 Union Oil Co. of Cal. V. Hane (1938) 27 Cal.App.2nd 106, 110 [80 P.2nd 516] --- 7

STATUTES
California Constitution Art. 1, Sec. 16 -------------------------------------------------- 6 California Constitution Art. VI, Sec. 4.5 ------------------------------------------------ 7 California Code of Civil Procedure, Sec. 580a or 726 -------------------------------- 4 California Civil Code, Sec. 2924, 2924b, 2924c --------------------------------------- 4 California Civil Code, Sec. 2953 -------------------------------------------------------- 3

OTHER LEGAL SOURCES


Restatement, 2nd, Torts, Sec. 221 & 226 ----------------------------------------------- 6 Restatement, 2nd, Torts, Sec. 410 ------------------------------------------------------- 5 Restatement, 2nd, Torts, Sec. 571 (a), (b) ---------------------------------------------- 6 Restatement, 2nd, Torts, Sec. 876 (b), (c) ---------------------------------------------- 4 Restatement, 2nd, Torts, Sec. 877 (a) --------------------------------------------------- 4

STATEMENT OF THE CASE


This case was originally filed May 19, 2009. August 10, 2010 a first amended complaint was filed, to which Pacific Coast Builders Inc. (PCB) responded with an answer which was filed on Nov. 8, 2010. (1 CT 87) Although a verified answer to the complaint was filed there has been no trial. There have been numerous delays. Problems serving, no notification from court, three different Judges/Commissioners, defendants not showing up, or not having proper representation, demurrers, oppositions. Granted some of the delay rests on us. However, not being attorneys, and out of the loop so to speak, the law is as hard to describe as it is to try and muddle through. Yet here we are. We have a mountain of evidence of wrong doing, (documents, pictures, invoices, sworn statements, that are proven untrue by the documents, pictures, and invoices), but no one wants to see it, or even hear about it. Its like it isnt their problem, but in a way it is every bodys problem. If these people keep getting away with what theyre doing, eventually everyone gets hurt. Placer County unfortunately does mot use court reporters, so there is no transcript, but during one opposition when Commissioner Jacques was asked, since when is it legal to go to some ones property, change the locks, fence it off, and bar the owners access? His reply was It isnt, but youve already told me more now than what is written in this complaint. It wasnt until August 13, 2012 that there was a signed order from which to appeal. The appeal was filed September 17, 2012. We made a motion to use a settled statement, but that was denied by Commissioner Jacques.

STATEMENT OF APPEALABILITY
This Appeal comes from the sustaining of a demurrer without leave to amend And the subsequent order for dismissal, (C of CP 581d) signed by the Honorable Commissioner Jacques filed August 13, 2013. (2 CT 512) Appeal filed Sept. 17, 2012.

STATEMENT OF FACTS
On January 15, 2006, Elizabeth took out a Construction Loan with Washington Mutual (WaMu) to start construction on a new 5800 +/- Sq. ft. home. (Placer County Building Permit #19249). Elizabeth B. Griffith, purchased property on July 9, 1990, APN#: 468-050-017. Physical address is: 9480 Sierra College Bd., Roseville, CA 95661. Lot size; 2.3 Acres. This was her primary residence until June of 2007. On March 20, 2006, Elizabeth entered into a contract with Edward Britt Gregurich (Britt), President of Pacific Coast Builders, Inc. (PCB), CSLB #443773. The contract was only to frame the house, and to pass frame inspection. PCB never passed frame inspection. It was difficult to get the work done when WaMu would only pay 85% until final inspection. At that point we knew we needed a different loan. Dino Rosetti, former broker, and President of 1 st Option Mortgage (no longer in business), had Elizabeth sign several blank Uniform Residential Loan Application and modified them to fit the different requirements of each lender or broker. February 16, 2007, Elizabeth re-financed with Allstar Financial Services, Inc. (Allstar FS) for 1.3 million (to Pay-off WaMu & complete construction project).

June 18, 2007 we entered into a 2nd contract with Britt of PCB to Demo and clear debris off lot. Instead Britt created a landfill with all the construction debris on the back of property. (1 CT 202) Britt & PCB were FIRED on June 21, 2007. On June 22, 2007 Placer County, Department of Health & Human Services was called regarding landfill and we were citied with a Violation (1 CT 60) And had to clean-up landfill immediately. The clean-up took 2 months and approx. $20,000.00 to comply with Placer County. On December 04, 2007, Britt of PCB, filed a False Mechanics Lien, #20070114341-00 in the amount of $35,558.00, stating he completed his work on July 10, 2007. This is NOT true. John E. and Royel M. Griffith corrected the 3 pages of inspection errors written on December 14, 2007 by Placer County Inspection Dept. On December 28, 2007, Allstar FS issued Check #1020 for the amount of $12,458.33 for January 2008 payment that was withdrawn from Mellon Business Acct. In February 2008, Erik Halberstroh of Allstar FS called John EG. And told John that the investors had decided not to remove any more monthly payment of $12,458.33 from our building fund acct. and to use the money towards completing the project. So long as progress moved along fast enough the lenders would hold off on foreclosure. April 4, 2008, Allstar FS filed a Notice of Default. #2008-27394, of which we were notified by USPS Certified Mail on April 19, 2008. NO communication, no access to remaining loan (approx. $88,875.61) to continue and finish project. Then on July 28, 2008, Allstar FS created a WORKOUT [FORBEARANCE] AGREEMENT. (1 CT 62) This was a sign or well foreclose agreement reviewed by attorney, Mitchell Abdallah who advised Elizabeth to execute it. Sec 2953 of the California Civil Code reads; Any express agreement made or entered into by a borrower at the time of or in connection with the making of or renewing of any loan secured by a deed of trust, mortgage or other instrument

creating a lien on real property, whereby the borrower agrees to waive the rights, or privileges conferred upon him by Sections 2924, 2924b, 2924c of the Civil Code [pertaining to notices of default and election to sell] or by Sections 580a or 726 of the Code of Civil Procedure, shall be void and of no effect. (1 CT 67) On August 8, 2008, Allstar FS took control of Elizabeths finances regarding the remaining amount of $88,875.61 + the additional New Promissory Note of $275,000.00. (2 CT 66) On August 8, 2008, Allstar FS hired and contracted with Pacific Coast Builders, Inc. (PCB) without Elizabeths knowledge or consent, then proceeded to damage personal property & damage new construction. (2 CT 324) Also see: Restatement, 2nd, Torts, Sec. 876 (b), (c) Persons Acting in Concert, and Restatement, 2nd, Torts, Sec. 877 (a) Directing or Permitting Conduct of Another. On August 10, 2008, John E. Griffith and Royel M. Griffith had an appointment with Allstar FS, Alfred Haberstroh to meet on property at 10:00am to discuss project. Al Haberstroh was there with Britt Gregurich of PCB. When John Griffith told Al Haberstroh that he (John) didnt want him (Britt Gregurich) on the property. Al said Im the one who finds the money for this project and I will say how it is spent and who will get paid, and keep that nut job of a wife of yours off the property. On August 26, 2008, PCB installed a new lock on the front door without the owners permission or knowledge, denying EBG access to her property, and/or personal property. On September 4, 2008, PCB placed a security fence around the property and chained and locked it, again without permission or knowledge of the owner (EBG), denying EBG access to her property and/or personal property. On September 26, 2008 the value of the home dropped considerably when Britt hired Roberti Roofing to remove a new genuine slate roof. This slate roof was 98% complete, ONLY the Ridges needed to be laid. Britt was fully aware of the status of the roof from Royel Griffith who verbally told him on August 10, 2008 that he was

NOT to finish the roof and NOT to allow anyone on the roof and when his job was completed and he was off the jobsite, the roof then would be completed & inspected by an authorized roof inspector. That natural slate roof had taken 1-1/2 years to complete and was laid better than the standard requirements (1 CT 191-196) Britt not only destroyed a 100+ year slate roof, but he stole all the Copper flashing, Copper valleys and Copper nails. In his contract with Roberti roofing Britt stipulated that all copper was to be saved for the General contractor (himself). There is a picture of the copper flashing in the back of a ford truck that belongs to Britt Gregurich of PCB (1 CT 84) The house was LESS COMPLETE in Nov 2008 than it was in August 2008. Also see: Restatement, 2nd, Torts, Sec. 410 Contractors Conduct in Obedience to Employers Directions. The destruction to the house from August 10, 2008 through November 2, 2008 is overwhelming. On November 10, 2008, three of the investors came to the property to see the progress. When we asked if all the $275,000.00 was gone? And one of them said that was what he understood; another said he had handed a check to Britt in person. We have yet to receive any accounting of how the money was spent, yet it is clear he did NOT pay any of the sub-contractors or the materials. Total Mechanics Liens filed against our property after August 2008 is $523,192.17. . On Oct. 21 2008 Elizabeth had no choice but to file Chapter 7, bankruptcy because the lender, Al of Allstar FS, gave Britt of PCB complete control of the project, which has caused us complete financial ruin from which we probably will never recover. When the bankruptcy happened we were finally able to access the property again, and found that nothing had been done to complete the house. All the material for the stairs (oak balusters, railings, newell posts etc.), and floors (12x12 marble tile), Brazilian cherry wood, as well as the crown molding, door and window casing was gone. At the very least these things aforementioned add up to conversion. 'Conversion consists in the unwarranted interference by defendant with the dominion

over the property of plaintiff, from which injury to the latter results'. (Poggi v. Scott (1934) 167 cal 372). Also see: Restatement, 2 nd, Torts, Sec. 226 Conversion by Destruction or Alteration. The owner, Elizabeth now a 90-year-old woman has absolutely nothing because of PCB. Britt has SLANDERED our name to the lender, many subcontractors we worked with, supply companies, and he even wrote to his bond company telling them that John Griffith had embezzled over a million dollars. That is a complete fabrication. Also see: Restatement, 2 nd, Torts, Sec. 571 (a), (b) Slanderous Imputations of Criminal Conduct.

ARGUMENT
The 2nd amended complaint for damages, states facts sufficient to be a cause of action. The names and labels given to the causes of action might not be correct, but in (McBride v. Boughton (2004) 123 Cal. App. 4th 379, 385). In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. We also consider matters which may be judicially noticed. Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context, and ignoring erroneous or confusing labels if the complaint pleads facts which would entitle the plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3rd 905). It has long been established that in ruling on a demurrer, the trial court is obligated to look past the form of a pleading to its substance. Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief.

The trial court erred when it would not give leave to amend the entire complaint. The first cause of action, which could have Conversion and or Waste added to it, was dismissed. All we are asking for is a trial by jury, which is guaranteed in CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS SEC. 16, Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three-fourths of the jury may render a verdict. A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant's counsel. In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute. In civil causes the jury shall consist of 12 persons or a lesser number agreed on by the parties in open court. As the Court said in (Union Oil Co. of Cal. v. Hane (1938) 27 Cal.App.2d 106, 110 [80 P.2d 516]): "A denial of the right to trial by jury to a party entitled thereto is a miscarriage of justice within the meaning of that phrase as used in section 4 1/2, article VI, of the Constitution of the state of California, which error requires a reversal of the judgment of the trial court. The titled owner of the property was Elizabeth B. Griffith until May 20th, 2009. The damages to the property started in 2007 with the landfill and continued until September 26th, 2008, when the new genuine slate roof was torn off to get at the copper flashing. Elizabeth had to file for bankruptcy because of these and other atrocities. The things that have been done to us are horrendous and Im sure we arent alone, but without enough money for an attorney, most folks give up. That is a shame. We arent going away. We should have the right to present our evidence in court, and let a jury decide.

CONCLUSION

There is ample evidence of wrong doing. We respectfully ask this Court to reverse the trial Courts decision so that the evidence can be presented, and a jury can decide. Thank You for your time.

DATED: July 13, 2013

Respectfully submitted,

___________________________ Elizabeth Griffith John Griffith Royel Griffith

CERTIFICATE OF WORD COUNT

I certify that, according to the computer program used to prepare this brief, the Appellants Opening Brief contains 2,831 words, not including the cover, the Table of Contents and Authorities, the Certificate of Interested Entities or Persons, this certificate, and the signature block. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed July 22, 2013, in Roseville, California.

_______________________ Elizabeth Griffith John Griffith Royel Griffith Appellants in Pro Per

PROOF OF SERVICE
I, the undersigned, declare as follows:

I am a citizen of the United States, over the age of 18 years, and am not a party to this action. My address is: 3767 Annabelle Ave., Roseville, California 95661. On the date entered below, I served the attached Appellants Opening Brief by placing a true copy thereof in an envelope addressed to the persons named below at the addresses shown, and by sealing and depositing that envelope in the United States Mail at Roseville, California, with fully prepaid postage. There is delivery service by the United States Postal Service to each of the places so addressed. Karen M. Goodman Goodman & Associates 3840 Watt Ave., Bldg. A Sacramento, CA 95821-2640 Edward C. McDonald, Jr. Adleson, Hess & Kelly 577 Salmar Ave., 2nd Floor Campbell, CA 95008 Clerk Superior Court of CA. Placer County 10820 Justice Center Dr. Roseville, CA 95678 Clerk California Supreme Court 914 Capitol Mall Sacramento, CA 95814 (4 copies) I declare, under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 22, 2013, in Roseville, California __________________________ Mark Fratis