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Sample California demurrer to complaint for breach of contract

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This sample California demurrer to a complaint for breach of contract and common counts is made on the grounds that the causes of action fail to state sufficient facts as it cannot be ascertained …

This sample California demurrer to a complaint for breach of contract and common counts is made on the grounds that the causes of action fail to state sufficient facts as it cannot be ascertained whether any contract was written, oral or implied by conduct, no contract is attached and on other grounds as well. This is a preview of the 12 page sample sold on scribd.com by LegalDocsPro which includes a memorandum of points and authorities with citations to case law and statutory authority and a proof of service by mail.


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  • 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Any Attorney or Party Any Street Any Town, CA 55555 714-555-5555 Any Attorney or Party Superior Court of the State of California For the County of _________________ Any Plaintiff, Plaintiff, vs. Any Defendant, and DOES 1-5 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) Case No. NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES DATE: TIME: DEPT: To subscribe to my FREE California weekly legal newsletter visit http://www.legaldocspro.net/newsletter.htm and enter your e-mail address. Be sure to remove these notices before using this document. To purchase and download the entire sample document visit: http://www.scribd.com/doc/25455024/Sample-Demurrer-to-Complaint-for- Breach-of-Contract 1NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT BY DEFENDANT ________________________________________ - 1 - NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
  • 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on _______________ at ___________. in Department ___of the above entitled court, located at ____________________________________________, Defendant, _________________________, will and hereby does move the Court for an order sustaining general demurrers to the first, second, third fourth, fifth and sixth causes of action in Plaintiff’s Complaint. This demurrer is made pursuant to California Code of Civil Procedure § 430.10(e) on the grounds that the first, second, third, fourth, fifth and sixth second causes of action in Plaintiff’s Complaint fail to state sufficient facts to constitute causes of action, and pursuant to California Code of Civil Procedure § 430.10(g) on the further grounds that the first, third and fifth causes of action fail to allege whether the alleged contract or contracts are written, oral or implied by conduct. This demurrer is based upon this notice of hearing of demurrer, the attached demurrer, the memorandum of points and authorities, and upon such oral and documentary evidence as may be presented by Defendant upon the hearing of the demurrer. DATED: ___________________ _____________________________________________ Any Attorney or Party - 2 - NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
  • 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER TO PLAINTIFF’S COMPLAINT Defendant, __________________________ (“Defendant”) hereby generally demurs to the first, second, third, fourth, fifth and sixth causes of action in Plaintiff’s Complaint as follows: FIRST CAUSE OF ACTION 1. Defendant generally demurs to the First Cause of Action for Breach of Contract on the ground that it fails to allege whether the contract is written, oral, or is implied by conduct. Code of Civil Procedure § 430.10(g). And further that it fails to state facts sufficient to constitute a cause of action for Breach of Contract as a copy of the alleged contract has not been attached, nor has Plaintiff pled the essential terms of the alleged contract. Code of Civil Procedure § 430.10(e). Be sure to modify these paragraphs to suit your individual situation. Do NOT just use the wording here unless it definitely applies to your particular situation. DATED: __________________ ___________________________________________________ ___________________________, Defendant, In Pro Per - 3 - NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
  • 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. PRELIMINARY STATEMENT Plaintiff, ______________________(“Plaintiff ) filed their complaint against Defendant, _____________________ (“Defendant”). The complaint has six causes of action, (1) Breach of Contract; (2) Common Count for Open Book Account; (3) Breach of Contract; (4) Common Count for Open Book Account; (5) Breach of Contract; (6) Common Count for Open Book Account. Defendant contends that the three causes of action for Breach of Contract fail to allege whether the contract is written, oral or implied by conduct, and further that the three causes of action for Breach of Contract fail to state facts sufficient to constitute Causes of Action for Breach of Contract in that Plaintiff has failed to either attach the alleged contract or contracts, nor has Plaintiff pled the essential terms of the alleged contract or contracts. For these reasons, this demurrer should be granted in its entirety. Be sure to modify these paragraphs to suit your individual situation. Do NOT just use the wording here unless it definitely applies to your particular situation. /// /// /// /// /// - 4 - NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
  • 5. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. ARGUMENT A. THE COURT IS AUTHORIZED TO GRANT THIS DEMURRER 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 admits the truth of all facts pleaded. Rosland v. Morgan Stanley Dean Witter Co., (2000) 80 Cal.App.4th 345, 349. 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. Hall vs. Chamberlin, (1948) 31 Cal.2d 673, 679-680. Thus, the Court is authorized to grant this demurrer. B. THE FIRST, THIRD AND FIFTH CAUSES OF ACTION FOR BREACH OF CONTRACT FAIL TO ALLEGE WHETHER THE ALLEGED CONTRACT OR CONTRACTS ARE WRITTEN, ORAL OR IMPLIED BY CONDUCT, THEY FURTHER FAIL TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION FOR BREACH OF CONTRACT AS PLAINTIFF HAS FAILED TO EITHER ATTACH A COPY OF THE ALLEGED CONTRACT OR CONTRACTS, AND HAS ALSO FAILED TO PLEAD THEIR ESSENTIAL TERMS - 5 - NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
  • 6. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant generally demurs to the first, third and fifth causes of action for Breach of Contract on the ground that they fail to allege whether the alleged contract or contracts are written, oral or implied by conduct. Therefore it cannot be ascertained from the pleading whether the contract is written, oral or implied by conduct. Code of Civil Procedure § 430.10(g). If you like this sample document please visit theFacebook page for LegalDocsPro at: http://www.facebook.com/LegalDocsPro and give it a like. - 6 - NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT
  • 7. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant generally demurs to the first, third and fifth causes of action for Breach of Contract on the ground that they fail to allege whether the alleged contract or contracts are written, oral or implied by conduct. Therefore it cannot be ascertained from the pleading whether the contract is written, oral or implied by conduct. Code of Civil Procedure § 430.10(g). If you like this sample document please visit theFacebook page for LegalDocsPro at: http://www.facebook.com/LegalDocsPro and give it a like. - 6 - NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT