A+Demurrer+is+a+Type+of+Motion+That+Can+Be+Filed+With+the+Court+Instead+of+Filing+an+Answer

8/7/2019 A+Demurrer+is+a+Type+of+Motion+That+Can+Be+Filed+With+the+Court+Instead+of+Filing+an+Answer

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A demurrer is a type of motion that can be filed with the court instead of filing ananswer. The deadline for filing is the same as your answer. The arguments in this

demurrer specifically address a complaint for breach of contract where no exhibitsare attached. Generally, the contract is required to pursue a breach of contract

claim, so they won't be able to proceed with their case until they present thecontract to the court.

Here's the meat of the brief:

_________________________

I. INTRODUCTION & RELEVANT BACKGROUND

Defendant ______________ ("Defendant") respectfully submits the following

Memorandum of Points and Authorities in support of her General Demurrer toPlaintiff Midland Funding LLCs (Plaintiff) Complaint.

On ___________________, Plaintiff filed the instant suit for monetary damages in

the sum of $____________. In its Complaint, Plaintiff claims this amount accrued

under a written agreement between the parties. Plaintiffs Complaint, however, isfatally flawed. Plaintiff neither attaches a copy of the purported agreement with

Defendant to its Complaint, nor pleads any of the essential elements of the alleged

contract. The lack of a contract or, alternatively, a recitation of its terms, leavesDefendant completely in the dark as to the basis of the claim being asserted against

her by an entity which is completely unknown to her. Plaintiff conspicuously fails toprovide information regarding the date the purported contract was entered into or

even the subject of the contract (i.e., whether for goods, services, credit, etc.).

Not only does Plaintiffs vague pleading fly in the face of the interests of justice, suchpleading is prohibited by statute. As set forth in more detail below, Plaintiff has

wholly failed to meet its statutory obligations under California Code of Civil Procedure

[CCP] Section 430.10(e), and it is respectfully requested that the Court sustainDefendants demurrer without leave to amend since it appears that there is noreasonable possibility that Plaintiff can cure the fatal defects.

II. LEGAL AUTHORITY

A. A Demurrer is Properly Sustained Where a Pleading Fails to State Facts Sufficient

to Constitute a Cause of Action

A general demurrer is proper when the complaint fails to allege facts sufficient toconstitute a cause of action. (CCP 430.10(e).) To determine whether a complaint

fails to allege sufficient facts, a demurrer must challenge defects that appear on theface of the complaint. (Id., 430.30(a).) The face of the complaint includes

matters shown in exhibits attached to the complaint and incorporated therein byreference and matters of which the court may take judicial notice. (Ibid.; Frantz v.

Blackwell (1987) 189 Cal.App.3d 91, 94.) If upon consideration of all facts stated it

appears that plaintiff is not entitled to the relief sought, the complaint or any causesof action therein will be held invalid. (Songer v. Cooney (1989) 214 Cal.App.3d 389,

390.)

It is well settled that a plaintiff must set forth specific facts in a complaint so that the

defendant may plead intelligently and responsively to the pleading without having to


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guess or speculate as to the items of material or essential facts. (See Ankeny v.Lockheed Missile & Space Company (1979) 88 Cal.App.3d 931, 937.)

In the instant action, Plaintiffs entire Complaint is subject to demurrer because it

fails to state facts sufficient to constitute causes of action for common counts (FirstCause of Action) or breach of contract (Second Cause of Action). (Code Civ. Proc.

430.10(e).)

B. Plaintiffs Claims for Breach of Contract and Common Counts Fail as a Matter ofLaw

In order to make out a claim for breach of contract, Plaintiff must plead the contract,

its performance of the contract or excuse for nonperformance, Defendants breachand the resulting damage. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.)

Here, Plaintiff fails to plead the terms of the alleged agreement between the parties

or to attach a copy of the alleged agreement to the Complaint. Instead, Plaintiff

alleges a written agreement was entered not on a specific date but rather within thelast four years. (See Complaint at p. __, ___.) Plaintiff then merely inserts the

following boilerplate language claiming it constitutes the essential terms of thisalleged contract:

Plaintiff, or Plaintiffs assignor, and defendants, and each of them, entered into awritten agreement. By the terms of the said agreement(s), plaintiff provided

defendants, and each of them, with [services rendered] and/or [goods, wares andmerchandise] and/or [extension of credit] and/or [monies paid laid out or expended]

at defendant(s) request.(See Complaint at p. __, ___.)

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. (Wise v. Southern Pacific Co.(1963) 223 Cal.App.2d 50, 59, emphasis added; Otworth v. Southern PacificTransportation Co. (1985) 166 Cal.App.3d 452, 458-59.)

It is clear from the face of the Complaint that the above boilerplate language is not

from any finalized written agreement but rather sample contract terms designed tobe tailored to a specific agreement, hence the bracketed terms where the essential

elements are meant to be placed. Not only is inserting language from some sort ofsample contract inartful, Plaintiff's inclusion of the same highlights the falsity of its

claims.

Similarly, under a cause of action for common counts on open book account and

account stated, Plaintiff alleges as follows:

By the terms of the said agreement(s), Plaintiff or Plaintiffs assignor, provided

defendants, and each of them, with services rendered and/or goods, wares, andmerchandise and/or extension of credit at defendants special instance and request

and in consideration thereof defendants promised to provide payment in the sum of$_________ and interest thereon which defendants and each of them failed to

provide.(Complaint at p. ___, ____.)


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Based on the foregoing, Defendant is wholly unable to ascertain whether a contractactually exists or what precise terms were purportedly breached. This wholesale

failure to allege the verbatim terms of the contract, or to attach the agreement, thusrenders Plaintiffs breach of contract/common counts claim fatally defective.

C. The Demurrer Should be Sustained Without Leave to Amend Since There is No

Reasonable Possibility Plaintiff Can Cure The Defects

A demurrer must be sustained without leave to amend absent a showing by theplaintiff of a reasonable possibility that the defect can be cured by amendment.

(Blank v. Kirwan (1985) 39 Cal.3d 311; Lacher v. Superior Court (1991) 230Cal.App.3d 1038, 1043.) The burden of proving such reasonable possibility is

squarely on the plaintiff. (Torres v. City of Yorba Linda (1993) 13 Cal.App.4th 1035,1041; Blank, 39 Cal.3d at 318; see also, Lacher, 230 Cal.App.3d at 1043.)

Here, Defendants demurrer should be sustained without leave to amend since there

does not appear to be any reasonable possibility that Plaintiff can amend its

Complaint to overcome demurrer. If Plaintiff, who presumably is aware it carries theburden of proof, possessed the alleged contract with Defendant, it is unlikely that

Plaintiff would have simply neglected to attach it. Its failure to do so is evidence ofthe fact that no contract between the parties has ever existed. Its failure to plead therequisite essential terms of the alleged contract let alone any of the terms

whatsoever is further evidence that no contract exists and that Plaintiffs Complaintis without merit.

Having established that it does not have any written agreement with Defendant, and

having established that it is not aware of when the purported agreement was enteredinto, whether it was for goods, services, credit or otherwise, Plaintiff cannot, in good

faith, amend to cure such defects. Leave to amend should, therefore, be properlydenied.

III. CONCLUSION

For the foregoing reasons, Defendant respectfully requests that the demurrer to

Plaintiff's Complaint, in its entirety, be sustained without leave to amend.

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A+Demurrer+is+a+Type+of+Motion+That+Can+Be+Filed+With+the+Court+Instead+of+Filing+an+Answer