Tag Archives: General demurrer in california

Demurrer to a fraud cause of action in California

A demurrer to a fraud cause of action in California is the topic of this blog post.

A demurrer to a fraud cause of action in California is usually what is known as a general demurrer.

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.

Law authorizing a demurrer to a fraud cause of action in California.

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.

Grounds for a demurrer to a fraud cause of action in California.

“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 demurrer to a fraud cause of action 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.

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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.

General demurrer to a complaint in California for lack of standing

Filing a general demurrer to a complaint in California for lack of standing is the topic of this blog post.

Lack of standing to sue means the right to obtain relief in Court. In order to have standing to sue, plaintiff must be the “real party in interest” with respect to the claims sued upon.

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.

Law requiring standing to sue in California.

Except as otherwise provided by statute, “every action must be prosecuted in the name of the real party in interest . . .” Code of Civil Procedure § 367; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.

Generally, the real party in interest is the person who has the right to sue under the substantive law. It is the person who owns or holds title to the claim or property involved, as opposed to others who may be interested or benefited by the litigation. Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.

Purpose of standing to sue requirement in California.

The purpose of the real party in interest requirement is to assure that any judgment rendered will bar the owner of the claim sued upon from relitigating. “It is to save a defendant, against whom a judgment may be obtained, from further harassment or vexation at the hands of some other claimant to the same demand.” Giselman v. Starr (1895) 106 Cal. 651, 657; see also Cloud v. Northrop Grumman Corp. supra at 1003.

For instance, a plaintiff who unintentionally failed to schedule her prepetition claim for wrongful termination as an asset in her bankruptcy action lacked standing to sue. However, the defect could be cured by substituting the bankruptcy trustee as the real party in interest or obtaining the trustee’s abandonment of the claim. Judicial estoppel does not arise absent a finding of bad faith. Cloud v. Northrop Grumman Corp., supra at 1002-1003; see also Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 599.

When a party lacks standing to sue, the action must be dismissed, unless the complaint can be amended by substituting a party who has standing. Cloud v. Northrop Grumman Corp. supra at 1004-1011. The author worked on a case several months ago where this very situation was present in that someone had failed to list their claim against someone as an asset in their bankruptcy petition so a demurrer to their complaint based on lack of standing was filed.

If a plaintiff clearly does not have standing to sue such as the situation just discussed, a general demurrer on that basis may be filed.

Sample demurer to complaint in California for lack of standing for sale.

Attorneys or parties in California who wish to view a sample demurrer to a complaint for California based on lack of standing that is sold by the author can see below.

 

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The author of this blog post, Stan Burman, is a freelance paralegalwho 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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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.

These 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 a complaint in California

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

Filing a demurrer to a complaint in California is the topic of this blog post.   There are two different types of a demurrer to a complaint in California, a general demurrer and a special demurrer.

Grounds for a general demurrer to a 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. Code of Civil Procedure § 430.10 is the relevant code section that authorizes both general and special demurrers in California. The grounds for a general demurrer are never waived. See Code of Civil Procedure § 430.80.

Most common grounds for a 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.

However, a demurrer is not concerned with the likelihood that the plaintiffs will prevail, nor even whether they have evidence to support their allegations, it 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.

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, so that he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him.

The issue of whether or not to file a general demurrer should only be made after careful legal research on the elements required to state a particular cause of action. The California Civil Jury Instructions (CACI) contain detailed explanations of the elements for most common causes of action such as breach of contract, fraud, negligence, etc.

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 for breach of contract in California.

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

Law and motion document package containing over 55 sample documents including a demurrer to a complaint in California for sale.

California law and motion litigation document package

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.

Seven sample legal document packages for California and Federal litigation.

Website for Stan Burman

If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link: Free weekly newsletter

Copyright 2012 Stan Burman. All rights reserved.

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.

These 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 common counts in California

The filing of a demurrer to common counts in California is the topic of this blog post.

Many people are under the mistaken impression that it is not possible to file a demurrer to common counts in California. This is not always true as there are exceptions. In particular, there are many cases in which a plaintiff has included a breach of contract or other cause of action along with several common counts.

Common count causes of action in California.

There are several common count causes of action including:

1. Money had and received.

2. Money lent or paid.

3. Services and material.

4. Goods sold and delivered.

5. Quantum meruit.

6. Open book account.

7. Account stated.

Case law authorizing a demurrer to common counts in California.

It is true that common counts are not subject to a general demurrer, but they are subject to the rule that if a plaintiff is not entitled to recover under one count in a complaint where all the facts upon which his demand is based are specifically pleaded, it is proper to sustain a demurrer to a common count set forth in the complaint, the recovery under which is obviously based on the set of facts specifically pleaded in the other count.

And recent decisions of the California Courts of Appeal have affirmed that there are circumstances in which common counts are subject to a general demurrer. For example when a common count is essentially an alternative way of seeking the same recovery demanded in another cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.

Therefore, if the complaint contains a breach of contract cause of action or other cause of action which is subject to a general demurrer, then any common counts based on the same set of facts are also subject to a general demurrer.

Sample demurrer to common counts in California for sale.

Attorneys or parties in California who would like to view a sample demurrer to a complaint with causes of action for breach of contract and common counts sold by the author can see below.

 

Sample document collection containing over 55 documents including a sample demurrer to common counts in California for sale.

California law and motion litigation document package

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.

Sample legal document collections for sale.

Visit his website at http://legaldocspro.net/

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