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Filing a general demurrer to a breach of contract cause of action in California

http://legaldocspro.net/blog/2013/01/demurrer-to-complaint-in-california/

Demurrer to complaint in California based on lack of standing to sue

http://legaldocspro.net/blog/general-demurrer-to-a-complaint-in-california-for-lack-of-standing/

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.

“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.

I have worked in California and Federal litigation since 1995, and in that time have noticed that about one-half of the fraud causes of action I have 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, some 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.”

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.

Sample demurer to a fraud complaint in California for sale.

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.

 

Attorneys or parties in California that would like more information on a California law and motion litigation document package containing over 90 sample documents including a sample demurrer to a fraud complaint can use the link shown below.

California law and motion litigation document package

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.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

For licensed attorneys and law firms that need 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.

Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.

Follow Stan Burman on Twitter at:

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

Demurrer to complaint in California

Filing a demurrer to a complaint in California is the topic of this blog post.

There are two types of demurrers in California, a general demurrer, and a special demurrer.

General demurrer to complaint in California.

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.

Special demurrer to a complaint in California.

A special demurrer can be made on any one of several grounds, including uncertainty and lack of capacity to sue. The grounds for a special demurrer are waived unless they are raised by a special demurrer, or listed as affirmative defenses in the answer. Note that special demurrers are not allowed in limited civil cases.

Limitations on a demurrer to a complaint in California.

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 California Supreme Court has stated that 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.  .

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.

And a California Court of Appeal has stated that a general Demurrer admits the plaintiff’s interpretation of a contract, even if the contract is ambiguous.

A demurrer to a complaint tests only the legal sufficiency of the allegations. It does not test their truth, the plaintiffs’ ability to prove them, or the possible difficulty in making such proof.

The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action–not whether they are true. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.  Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.

It is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she can prevail. But if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer.

Special demurrers for uncertainty are a disfavored ground for a demurrer. A Demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him.

And the “uncertainties” must be specified. Where a demurrer is made upon this ground, it must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers of the complaint.

Even if a demurrer is sustained, leave to amend the complaint is routinely granted. Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent: “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.”

It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action.

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

And the issue of whether or not to file a special demurrer should only be made after a careful review of the complaint, as most special demurrers are made on the ground of uncertainty then the moving party should be certain that the complaint is so poorly written that it would not be possible to respond.

Sample demurrer to a complaint in California.

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

 

Attorneys or parties in California who wish to view a portion of a sample opposition to a demurrer sold by the author please see below.

 

 California law and motion litigation document package with over 90 sample legal documents.

Attorneys or parties in California that would like more information on a California law and motion litigation document package containing over 90 sample documents including both a sample demurrer to a complaint and a sample opposition to a demurrer to a complaint can use the link shown below.

California law and motion litigation document package

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.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

View legal document packages for sale at: http://www.legaldocspro.net

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

Motion for Judgment on the Pleadings by Plaintiff in California

http://legaldocspro.net/blog/2013/01/a-motion-for-judgment-on-the-pleadings-in-california/

Demurrer to answer in California

http://legaldocspro.net/blog/demurrer-to-an-answer-in-california/

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