demurrer to common counts in californiademurrer to common counts in california

998. 1939, ch. (171 Cal. 512, s 1, p. 1864, subdivision 8) added to section 430 of the Code of Civil Procedure the following ground of demurrer: That, in actions founded upon a contract, it cannot be ascertained from the complaint, whether or not the contract is written or oral. In 1941 a commentator observed, Whether it (a pleading which is sufficient as a common count) is subject to special demurrer for failure to show whether the contract sued upon is written or oral has not yet been decided. King, Op. (See 13 So.Cal.L. Co. v. United C. & D. Co., 65 Cal.App.

App.

The obligation to pay is rested upon the equitable principle of preventing unjust enrichment as applied to the particular circumstances which have arisen between the parties (id.). % from June, 1946 to June, 1948. For aught that appears the defendant may have become indebted prior or subsequent to June 10, 1946. [11] It is not necessary in this state to plead with the exactitude required at common law. WebIn the last count, the plaintiffs assert that because Rowley obtained the $2,000 by fraud, oppression and malice, express or implied, they are entitled to exemplary damages. It is further argued that the count is defective because exemplary damages may be allowed only upon the allegation of actual damages (Mother Cobb's Chicken T., Inc. v. Fox, 10 Cal.2d 203, 205 [73 P.2d 1185]; Clark v. McClurg, 215 Cal.

0000007483 00000 n

708. In Brubaker v. Mallickzadha, supra, the court ruled as follows: Appellant first contends that the court erred in overruling the demurrer (on the ground that it could not be ascertained whether the contract was oral or in writing) to the complaint.

at p. 250; italics added. SUPERIOR COURT OF CALIFORNIA, COUNTY OF. [Source: CCP 412.20] DISCOVERY. ), Despite the foregoing precedents, it is urged that the policy embodied in subdivision 8 of section 430 should prevail.

(Pike v. Zadig, supra, 171 Cal.

cit., 14 So.Cal.L.Rev. In civil cases demurrers also are based often upon some error or omission. Specifically, section 430.41 (b) (1) precludes a party demurring to an amended pleading from raising on successive demurrers any grounds that could have been raised in an earlier demurrer.

299, 303 [ 12 P.2d 467]; Powers v. Freeland, 114 Cal.App.

34, 38; Curtiss v. Aetna Life Ins.

736].). Social Work, Counseling 20 Providers. 84, 86 [55 P. 761]; Pleasant v. Samuels (1896) 114 Cal.

In view of the foregoing it is unnecessary for us to consider the other arguments presented by appellant. 3d 283] the obligation was in writing that the action is "upon a contract, obligation or liability not founded upon an instrument of writing " (See 339, subd. Co. v. White River L. Co., 101 Cal. 250, 257-259 [23 P. This is a sufficient pleading under the old form known as a 'common count.' A rehearing was granted to reevaluate the propriety of qualifying the pleading of common counts as originally proposed. The escrow documents disclosed no illegal purpose for the payment. (Orloff v. Metropolitan Trust Co., 17 Cal.2d 484, 489 [110 P.2d 396]; Hays v. Temple, 23 Cal.App.2d 690, 695 [73 P.2d 1248].) In 1941 a commentator observed, "Whether it [a pleading which is sufficient as a common count] is subject to special demurrer for failure to show whether the contract sued upon is written or oral has not yet been decided."

It, therefore, appears that as in Miller v. Brown, the plaintiff has alleged that the obligation was incurred during a period of time which may or may not leave it barred, unless it is founded upon an instrument in writing. Webreply to opposition to demurrer california deadlinejudge bagley forsyth county. (1956) 145 Cal.

Many decisions apply this rule. Now I have a hearing for a motion to strike next week for attorney fees they are asking for under the common counts cause of action. (See Hills Transp. at p. 68; Kraner v. Halsey, supra, 82 Cal. In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers.

(107 Cal.App.2d at pp.

0000002761 00000 n Copyright 2023, Thomson Reuters. Strozier v. Williams (1960) 187 Cal.

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456 [280 P.

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446, s 1, p. 1782; see, The Work of the 1939 California Legislature (1939) 13 So.Cal.L.Rev. 55; Jones v. Re-Mine Oil Co. (1941) 47 Cal.App.2d 832, 843, 119 P.2d 219; 5 Cal.Jur.2d rev., Assumpsit, ss 15 and 16, pp.

[5] As to count two, the Steiners insist that neither a [35 Cal.2d 718] general nor a special demurrer will lie against a common count. Procedure (1954) Pleading, 269, p. 1244; and King, op. 39 )" (171 Cal. (See 107 Cal.App.2d at p. 306, 237 P.2d 320; and Division of Labor Law Enforcement v. Barnes, supra, 205 Cal.App.2d at p. 347, 23 Cal.Rptr. California courts are tired of hearing your demurrers, and now the state has done something about it. The position advanced by defendant, followed by the trial court and originally embraced by this court tends to render uncertain pleadings which have been used and approved over the years.

Pleasant v. Samuels, 114 Cal.

What counts as an appearance in federal court? 3d 487] the action of the trial court and the judgment were sustained by application and extension of principles found in Miller v. Brown (1951) 107 Cal. (Continental Mtg. 2d 778, 792-793 [256 P.2d 947]; McFarland v. Holcomb (1898) 123 Cal.

Reversing demurrer sustained to legal malpractice cause of action because plaintiff timely alleged at least one negligent act. (DeLaval Pac.

In any event, it does not appear that any of the counts is ambiguous, uncertain or unintelligible, or that there was any failure separately to state causes of action in contract and tort.

There have been intimations in this court that such a pleading, although not obnoxious to general demurrer, might fall before a special demurrer on the ground of uncertainty.

cit., at p. 297, and other authorities cited above in connection with his comment on the necessity of alleging whether a contract is written or oral.)

MSC to make the request. (105 Cal.App.2d at pp.

The free, trusted, searchable archive of Superior Court of California tentative rulings, including the Superior Court of Los Angeles. 8), and that the principles enunciated in Miller v. Brown should be limited to the facts to which they were there applied. The only allegations in the complaint relative to the agreement by which Shirley Temple was loaned to Fox Film Corporation and Twentieth Century Fox Film Corporation are the following: "That during the entire period of time between and including the month of October, 1933, and the 22nd day of January, 1936, defendant Shirley Temple, was and she now is engaged by defendants, Fox Film Corporation and Twentieth Century Fox Film Corporation, as a motion picture actress by and with the procurement, consent and approval of plaintiff, and in pursuance of his right to loan the services of said Shirley Temple, as prescribed in said `Exhibit A', and as more particularly hereinafter alleged. 2d 780, 781-782 [233 P.2d 635] [wages].).

184, 19 P. 278; Pleasant v. Samuels, 114 Cal. So far as has been ascertained by counsel and the court the question has not heretofore been decided. In Curtiss v. Aetna Life Ins. It is clear that the foregoing allegations failed to set forth the agreement between appellant and respondents Fox Film Corporation and Twentieth Century Fox Film Corporation with sufficient certainty to show any right upon appellant's part to entitle him to portions of the compensation which they paid to defendants Gertrude and G.F. Temple or respondent Shirley Temple. 525 [255 P.

0000001106 00000 n (See King, op. Section 475 of the Code of Civil Procedure declares that "The court must, in every stage of an action, disregard any error or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties." He is now being sued by them to recover the amount of his commission, an alleged secret profit and exemplary damages. WebPlaintiffs second cause of action for common counts alleges a count for open book account for money due. The position advanced by defendant, followed by the trial court and originally embraced by this court tends to render uncertain pleadings which have been used and approved over the years. (2zlU#$FVf;OyZVPx6[b9u|Kry!J>i+"Wy[{\$#330cR"v{>F3-,Z9$3y"Ry'( Plaintiff's complaint contains two common counts, reading in part as follows: the first, Within four years last past at San Francisco, California, defendants and each of them became indebted to plaintiff in the sum of $9,000.00 for money lent by plaintiff to defendants, and each of them, at the request of each of them; and the second, Within four years last past at San Francisco, California, defendants, and each of them, became indebted to plaintiff in the sum of $9,000.00 for money paid, laid out, and expended for defendant at his instance and request.. You can explore additional available newsletters here. 781-782.) App. Cf. 2 0 obj In addition there is a total absence of any allegation which shows a contractual relation between appellant and respondents, nor is there any allegation to show that any person other than defendants Gertrude and G.F. Temple made any promise to appellant, and as to these defendants the trial court overruled their demurrer. ), [3] These principles apply to a common count for moneys paid, laid out, expended, loaned or advanced to and for the defendant by the plaintiff at the former's instance and request. Rptr. (Citations.) (5 Cal.App.2d at p.

3d 281] "A common count founded upon a written contract would, indeed, be an anomaly." In the case before us the language of count 2 is that within Two Years last past, to-wit, from June 1946 to June, 1948, Defendant became indebted * * *. The general language within two years last past is necessarily controlled by the specific language, i.e. 291 [276 P. 1066]), although it be verified, if there are no contradictory or antagonistic facts (Beatty v. Pacific States S. & L. Co., supra). In Pike v. Zadig, supra, the court stated, " a demurrer on the ground of the bar of the statute of limitations does not lie where the complaint merely shows that the action may have been barred.

2d 702, 706 [72 Cal.

Co., supra, the court in support of this principle said, "Here the allegation that Tucker became indebted more than [10 Cal.

245, 249250, 27 P. 211; Kraner v. Halsey, supra, 82 Cal.

[6] A common count cannot be used to secure the performance of an executory express contract unless all of the covenants and conditions have been performed and there remains only an obligation for the payment of money. Contact us. The court stated, "It is true, as appellant contends, that in this state it is not necessary in a common count to set forth the date when the defendant became indebted [citation], but it is also true that if the common count does set forth a date which is beyond the applicable statute of limitations it is demurrable. [Citation.]

[10 Cal.

The motion has the same function as a demurrer but is brought where the time for a demurrer has expired.

Cf. at p. 307. 683 (fraud); Fanucchi v. Coberly-West Co. (1957) 151 Cal.App.2d 72, 83, 311 P.2d 33 (constructive trust); and Brubaker v. Mallickzadha (1951) 105 Cal.App.2d 780, 781782, 233 P.2d 635 (wages).). The demurrers on the grounds of ambiguity, unintelligibility, and uncertainty were therefore properly sustained as to the first and second counts in the complaint as amended.