Demurrer to a fraud cause of action in California

Filing a demurrer to a fraud cause of action in California is the topic of this blog post. It will mainly focus on a general demurrer to a fraud cause of action.

A general demurrer is made on one of two grounds, failure to state facts sufficient to constitute a cause of action, and the Court lacks subject matter jurisdiction. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.

Code of Civil Procedure § 430.10  states in pertinent part that, “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in section 430.30, to the pleading on any one or more of the following grounds…(e) the pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer can only be used to challenge defects that appear on the face of the complaint, or from matters that can be made the subject of judicial notice.

A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp.(1992) 4 Cal.App. 4th 857, 880.

“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Every element must be specifically pleaded.”  Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.

Fraud must be pleaded specifically; general and conclusory allegations do not suffice. This particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered.

Any party who has been served with a complaint that contains a fraud cause of action needs to carefully examine it for any defects, such as lack of specific allegations such as dates, what was said, etc.

This author has worked in civil litigation since 1995, and in that time has noticed that about one-half of the fraud causes of action he has reviewed were defective in some manner, mostly due to lack of specificity as to dates, what was said, etc. And many times a fraud cause of action will be for an alleged false promise, many attorneys will attempt to “convert” a simple breach of contract action and add a fraud cause of action based on a false promise. Most of the time they are very sloppy at it, on numerous occasions the author has noticed that the damages for the breach of contract action and the fraud cause of action are exactly the same amount!  That is a dead giveaway that the cause of action is demurrable.

“Whatever form it takes, injury or damage from fraud must not only be distinctly alleged but its causal connection with reliance on representations must be shown…. In order to recover for fraud, as in any other tort, the plaintiff must plead and prove the detriment proximately caused by the defendant’s tortious conduct. Deception without resulting loss is not actionable fraud. Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.”  Service by Medallion, Inc., id., at 1818.

Thus in order to recover damages for fraud based on a false promise the plaintiff must show specific damages that resulted from the false promise, and show a causal connection between the false promise and the damages.

The issue of whether or not to file a general demurrer to a fraud cause of action should only be made after careful review of the entire complaint, and legal research on the elements required to state cause of action for fraud. If the complaint does not allege all of the required elements for a fraud cause of action then a general demurrer should be filed.

Attorneys or parties in the State of California who wish to view a portion of a sample demurrer to a fraud complaint for sale by the author please see below.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Subscribe to his weekly newsletter with legal tips and tricks for California. http://www.legaldocspro.net/newsletter.htm

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