I worked in California and Federal litigation from January 1995 through September 2017 and I reviewed any complaints where the plaintiff had included a cause of action for breach of contract or common counts that is deficient for one of several reasons.
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.”
Code of Civil Procedure § 425 states that a complaint must contain “a statement of the facts constituting the cause of action in ordinary and concise language.”
A complaint must contain facts which are sufficiently clear and specific to inform both the Court and parties of the nature of the claim and the factual basis of the claim. See Code of Civil Procedure § 430.10.
It is well settled that in order to state a cause of action for breach of a written contract, the terms of the contract must be set out verbatim in the complaint, or a copy of the written instrument must be attached and incorporated by reference. The plaintiff can also allege the essential terms of the contract in haec verba.
Plaintiff must also allege all of the elements required for a cause of action for breach of contract.
The elements of a cause of action for breach of contract are (1) the existence of a contract, (2) plaintiff’s performance or excuse for failure to perform, (3) defendant's breach and damage to plaintiff resulting from the breach by defendant.
Thus if a plaintiff fails to allege even one of the essential elements of a cause of action for breach of contract a judge should sustain a general demurrer.
Any complaint received that contains a breach of contract cause of action should be very carefully reviewed to determine whether it states a valid cause of action for breach of contract. If the cause of action for breach of contract does not allege all of the required elements then a general demurrer should be filed.
A common defect that I see is where a complaint not only has causes of action for breach of contract but will also have causes of action for common counts. If the cause of action for breach of contract fails to state facts sufficient to constitute a cause of action that means that any common counts causes of action that are based on the same set of facts also fail to state facts sufficient to constitute a cause of action.
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The author of this blog post, Stan Burman, is an entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.
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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.
