The filing of a general demurrer to a complaint for breach of contract in California is the topic of this blog post. Many times a plaintiff will include a cause of action for breach of contract in a complaint that is deficient for one of several reasons.
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: “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.
The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter.
Section 425 of Code of Civil Procedure states that a complaint must contain “a statement of the facts constituting the cause of action in ordinary and concise language.” A complaint must contain facts which are sufficiently clear and specific to inform both the Court and parties of the nature of the claim and the factual basis of the claim. Code of Civil Procedure §430.10.
A complaint “must allege the ultimate facts necessary to the statement of an actionable claim.”
It is well settled that in order to state a cause of action for breach of a contract, the terms of the contract must be set out verbatim in the complaint, or a copy of the written instrument must be attached and incorporated by reference.
If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.
“To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.”
And a plaintiff must also allege all of the elements required for a cause of action for breach of contract.
“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom. A written contract may be pleaded either by its terms-set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference-or by its legal effect. In order to plead a contract by its legal effect, plaintiff must allege the substance of its relevant terms.” McKell v. Washington Mut., Inc. (2006) 142 Cal.App 4th 1457, 1489 (internal citations omitted.)
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.
Thus if a plaintiff fails to allege even one of the essential elements of a cause of action for breach of contract than many judges will sustain a general demurrer.
The issue of whether or not to file a general demurrer to a breach of contract cause of action in California should only be made after legal research on the elements required to state a cause of action for breach of contract. If the complaint does not allege all of the required elements then a general demurrer should be filed.
Attorneys or parties who would like to view a sample demurrer to a California complaint for breach of contract can see below.
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The author of this blog post, 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.
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Filed under: California civil litigation, California freelance paralegal | Tagged: breach of contract in California, California civil litigation, California freelance paralegal, California law, California law and motion, General demurrer in california, Law | Leave a comment »