See in addition to case cited, McFarland v. Holcomb, supra, 123 Cal. 245, 249 [27 P. Defendants Gertrude and G.F. Temple are the mother and father respectively of respondent Shirley Temple. cit., 14 So.Cal.L.Rev. In Miller v. Brown (1951) 107 Cal. Stay up-to-date with how the law affects your life. App. ), 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. In its decision on the demurrer the court indicated that the demurrer was sustained as to both causes of action on the second ground (see 472d). 1239-1240; and King, The Use of the Common Counts in California (1941) 14 So.Cal.L.Rev. In the first one, the Steiners allege that Rowley was employed by them as such broker under an oral contract and he owes them $2,000 because [35 Cal.2d 716] it was paid to him for their use and benefit. (107 Cal.App.2d at pp. 1 and 2. [5] The common counts are in theory based on express or implied promises to pay money. 418, 463 P.2d 770; Tanzola v. De Rita (1955) 45 Cal.2d 1, 9, 285 P.2d 897; Lawrence Barker, Inc. v. Briggs (1952) 39 Cal.2d 654, 661, 248 P.2d 897; and O'Brien v. King (1917) 174 Cal. cit., 14 So.Cal.L.Rev., at pp. 2d 528, 532 [9 Cal. 219 [58 P. 536]; Glide v. Dwyer, 83 Cal. Reference to the case cited in support of this proposition reveals that it not only is contrary to the general rule referred to below in the text of this opinion, but also is predicated upon a statutory law which only existed between 1929-1933. 2d 195, 197 [124 P.2d 334]; 5 Cal.Jur.2d, Rev., Assumpsit, 36 and 38, pp. 273 , upon which appellant relies does not sustain him. Rptr. 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. demurrer to common counts in california We think, however, that there is no force in this suggestion. <> WebA demurrer is brought under the Code of Civil Procedure (CCP) 430.10 [grounds], 430.30 [as to any matter on its face or from which judicial notice may be taken], and 430.50 (a) [can be taken to the entire complaint or any cause of action within]. [8b] Here the allegations in the first count to the effect that the profit was secret at most would be inconsistent with, but not antagonistic to, those of the third count in regard to the payments out of escrow. Furthermore, section 430.41 (e) (1) limits the number of times a ), In this case defendant contends that the complaint has an ambiguity in that if the obligation arose as alleged within four years of the filing of the complaint, but more than two years prior thereto it would be barred unless founded upon an instrument in writing. The 1939 amendment merely gives the defendant the option to compel his adversary to plead the true facts instead of relying on the presumption. 291 [276 P. 1066]), although it be verified, if there are no contradictory or antagonistic facts (Beatty v. Pacific States S. & L. Co., supra). " (DeLaval Pac. Strozier v. Williams (1960) 187 Cal. A pleading which is sufficient as a common count is not generally subject to general demurrer or to special demurrer on the ground of uncertainty. 250, 257259, 23 P. 1965, ch. (See King, op. Proc., 581d.) 84, 86 [55 P. 761]; Pleasant v. Samuels (1896) 114 Cal. WebThe statutes of limitations for several types of common civil actions in California include: Personal injury or wrongful death: 2 years (CCP 335.1) Damage to personal property: 3 years (CCP 338) or as grounds for a demurrer. App. The Court notes that this cause of action is actually a claim for quantum meruit recovery of attorney fees in the event that the parties written agreement is found to be void or The judgment is reversed with directions to the trial court to overrule the demurrer to the first, second, and third counts and allow the defendant to answer. Defendant demurred on the ground that the complaint fails to state a [10 Cal. (King, op. 67; Wise v. Hogan, 77 Cal. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. In Pike v. Zadig (1915) 171 Cal. (Cf., however, id., at p. 297; 2 Witkin, Cal., Procedure (1954) Pleading, 264, pp. WebMike is a strategic, creative "hands-on" leader, leveraging broad experience in employee benefit consulting, insurance practice leadership, business strategy, operations, and HR matters. (See 339, subd. See in addition to case cited, McFarland v. Holcomb, supra, 123 Cal. App. 211].) But, in any event, no prejudice could have resulted to defendant as defendant did set up a written agreement as a defense and the court found that said agreement had been rescinded. (105 Cal.App.2d at pp. Bank (1955) 44 Cal. 1 0 obj Plaintiff's Opposition to Demurrer to Unlawful Detainer Complaint on the interested parties in the above-entitled action by EXPRESS MAIL depositing true copies thereof in the United States Mail, on October 26, 2016 in San Francisco, California, enclosed in a sealed Express Mail envelope with postage fully pre-paid, and addressed

WebLA Count Community Psychiatry. . It is clear that the pleader must specify whether the contract is written or oral when his cause of action rests on an express contract. Rowley attacks count four upon the ground that, under section 3294 of the Civil Code, exemplary damages are recoverable only in a tort action and, by obtaining a writ of attachment, the Steiners elected to sue in contract. WebThe Demurrer is SUSTAINED as to the second for common counts (account stated). Show Phone Number. See also, United States Liab. (See Pleasant v. Samuels, supra, 114 Cal. 306307, 237 P.2d at p. This is an appeal by appellant from a judgment in favor of respondents after the trial court sustained a demurrer to appellant's first amended complaint without leave to amend in an action for damages and for an accounting, resulting from the breach of a contract.

0000007713 00000 n In support of the second premise respondents cite Rose v. Ames, 53 Cal.App.2d 583, Full title:JACK HAYS, Appellant, v. SHIRLEY TEMPLE et al., Respondents, Court:Court of Appeal of California, Second District, Division Two. cit., at pp. cit., at pp. from June, 1946 to June, 1948. For aught that appears the defendant may have become indebted prior or subsequent to June 10, 1946. Judicial Council of California PLD-C-001(2) [Rev. at pp. 245, 249, 27 P. App. In 1939 (Stats.1939, ch. The Steiners defend the sufficiency of count three notwithstanding the specific allegation that the claimed secret commission received by Rowley came to him through an escrow to which they were parties. The cause of action is one to recover from a fiduciary his commission and secret profits, and the general demurrer to it should have been overruled. The Court notes that this cause of action is actually a claim for quantum meruit recovery of attorney fees in the event that the parties written agreement is found to be void or unenforceable. Civ. In civil cases demurrers also are based often upon some error or omission. In Harris v. Kessler, supra, at page 303, the court says: "Nor do we find any ground for reversal because of the order of the court sustaining the demurrer to the second count in the cross-complaint without leave to amend. For aught that appears the defendant may have become indebted prior or subsequent to June 10, 1946. See also, Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 792793, 256 P.2d 947; McFarland v. Holcomb (1898) 123 Cal. 306-307.). EMERITA MOYA, Plaintiff and Appellant, v. BEN A. NORTHRUP, Defendant and Respondent, (Opinion by Sims, J., with Molinari, P. J., and Elkington, J., concurring.). The Steiners were thereafter estopped to allege a cause of action in tort, and the demurrer as to the fourth count was properly sustained. 55; Brown v. National Royalties, Inc. (1959) 169 Cal.App.2d 836, 839, 338 P.2d 188; Miller v. McLaglen (1947) 82 Cal.App.2d 219, 223, 186 P.2d 48; Smith v. Randall (1942) 51 Cal.App.2d 195, 197, 124 P.2d 334; 5 Cal.Jur.2d rev., Assumpsit, ss 36 and 38, pp. %_qRj4~oC%]cydR0$: &pQTJQZ Mp*.cFFTu" ^GjH2l?;LdY.
0000005356 00000 n You do not need the breach of contract. Cf.

34, 38 ) If the defendants desired further information on this point, the proper course was to demand a bill of particulars. The only essential allegations of a common count are (1) the statement of indebtedness in a certain sum, (2) the (See 107 Cal.App.2d at p. 306; and Division of Labor Law Enforcement v. Barnes, supra, 205 Cal.App.2d at p. But, as we have seen, this objection is not maintainable.' In view of the foregoing it is unnecessary for us to consider the other arguments presented by appellant. Code, 1624 which requires a note or memorandum in writing "subscribed by the party to be charged or his agent."). App. (See 13 U.So.Cal.L.Rev. 100. Strozier v. Williams (1960) 187 Cal.App.2d 528, 532, 9 Cal.Rptr. 26307. s 337, subds. Case No. WebTo summarize, rules of civil procedure simply outline the steps one must take to litigate a matter in the courts. 0000002047 00000 n The real ground of objection, therefore, is that the complaint does not state facts sufficient to constitute a cause of action. 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. Trust & Sav. Affirmed. 3d 279] cause of action ( 430, subd. 2d 423, 426 [302 P.2d 665].) [35 Cal.2d 720] 566 [283 P. 65]; Mix v. Yoakum, 200 Cal. 209, 210211, 22 P. 1137; Evans v. Zeigler (1949) 91 Cal.App.2d 226, 230, 204 P.2d 902; 5 Cal.Jur.2d rev., Assumpsit, s 38, p. 689; and King, Op. Rowley relies upon the rule that a common count may not be maintained as the alternative for specifically pleaded facts which do not in themselves state a cause of action. [8a] But even if the facts pleaded in this count show knowledge of the secret purpose of the payment, the first count would not fall because of those allegations. 2 0 obj [1] This is the sole question presented for our determination: Were the special demurrers of respondents to the complaint as amended properly sustained on the grounds that the pleading was ( a) ambiguous, ( b) unintelligible, and ( c) uncertain? ) (Amen v. Merced County Title Co. (1962) 58 Cal.2d 528, 532, 25 Cal.Rptr. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 706, 72 Cal.Rptr. It may be assumed that the obligation and implied promise to reimburse the plaintiff arose when the money was "lent" to, or "paid, laid out, and expended" for the defendant. The purpose of the 1939 amendment parallels that of the additions, subsequently deleted, to sections 447 and 448 which have been alluded to above. The order was made and entered upon plaintiff's motion after plaintiff failed to amend following the sustaining of defendant's demurrer to plaintiff's complaint with leave to do so ( 581, subd. It is the established law of California that, if plaintiff is not entitled to recover under one count in a complaint wherein 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. (2d) 713, 715 [ 62 P.2d 753].). 769, 773 [164 P. 631]. Lawyer's Assistant: What steps have you taken so far? 2d 832, 843 [119 P.2d 219]; 5 Cal.Jur.2d, Rev., Assumpsit, 15 and 16, pp. o#+_Ngxa! ), Despite the foregoing precedents, it is urged that the policy embodied in subdivision 8 of section 430 should prevail. Rptr. In Miller v. Brown (1951) 107 Cal.App.2d 304, 237 P.2d 320 the court upheld an order of the trial court which sustained a demurrer on the ground that the complaint was uncertain and ambiguous, and affirmed a judgment which was entered for the defendant when the plaintiff refused to avail himself of a right to amend. [3, 4] Section 1624 of the Civil Code is applicable to the collection by the agent or broker of his " compensation or a commission " and the enforcement by the principal of the broker's agreement (Marks v. Walter G. McCarty Corp., 33 Cal.2d 814 [205 P.2d 1025]; LeBlond v. Wolfe, 83 Cal.App.2d 282 [188 P.2d 278]; see 12 Cal.L.Rev. 2d 72, 83 [311 P.2d 33] [constructive trust]; and Brubaker v. Mallickzadha (1951) 105 Cal. [cSU 3). What counts as an appearance in federal court? He is now being sued by them to recover the amount of his commission, an alleged secret profit and exemplary damages.

If he wishes further particulars from the plaintiff, he may, as noted above, request a bill of particulars before so proceeding. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. See also, United States Liab. 0000005801 00000 n Make an Appointment. "A statute of limitations is procedural; it affects the remedy only, not the substantive right or obligation. (171 Cal. 299, 303 [ 12 P.2d 467]; Powers v. Freeland, 114 Cal.App. 55.) 84, 87, 55 P. 761; Rogers v. Duff (1892) 97 Cal. Common counts is an old-fashioned method of pleading a breach of contract where money is due to the plaintiff. Gallaher for Appellant. 2d 221, 226 [148 P.2d 605]; and Curtiss v. Aetna Life Ins. APPEAL from a judgment of the Superior Court of Los Angeles County. While a cause of action set forth in the accepted form of a common count is not subject to a general demurrer on the theory it does not sufficiently state a cause of action [citation] and is not subject to a special demurrer predicated on the ground that the cause of action is not stated with sufficient certainty, it nevertheless is not true, as appellant contends, that a special demurrer never lies to a common count. SUPERIOR COURT OF CALIFORNIA, COUNTY OF. Web3. The Court notes that this cause of action is actually a claim for quantum meruit recovery of attorney fees in the event that the parties written agreement is found to be void or unenforceable. The following is a brief overview of California criminal law demurrers and related laws. Reference to the case cited in support of this proposition reveals that it not only is contrary to the general rule referred to below in the text of this opinion, but also is predicated upon a statutory law which only existed between 19291933. (See 5 Cal.Jur.2d, Rev. WebA motion to dismiss is a petition (request) to drop a case altogether. 337, subds. The appeal is from a judgment entered upon an order sustaining Rowley's demurrers to the complaint. For more information, contact our criminal defense `lE>;N`|XlH QcC-_=D>)YyjQga=2+I 6w@H;:m| 643-647; and King, op. (Code Civ.Proc. If you have not be a contract within a plaintiff may generally limited vision or judgment been made sense that motion for demurrer? 861].) at p. 68, 31 P. 836; Kraner v. Halsey, supra, 82 Cal. at p. 210; Division of Labor Law Enforcement v. Barnes, supra, 205 Cal.App.2d at p. 347; Jones v. Re-Mine Oil Co. (1941) 47 Cal. California courts are tired of hearing your demurrers, and now the state has done something about it. ), Despite the foregoing precedents, it is urged that the policy embodied in subdivision 8 of section 430 should prevail. 590-591; and see 2 id., Pleading, 489 and 545, pp. 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. ", In the instant case not only is it evident from reading the complaint that appellant relies for recovery under his Third Count, i.e., the common count, on the facts specifically pleaded in Counts One and Two, but in his brief he also bases his argument for recovery under Count Three on the facts specifically alleged in Counts One and Two. Rowley generally demurred to each of the four counts, and also pleaded that they are uncertain, ambiguous and unintelligible. Decided: August 06, 1970 as appellant contends, that a special demurrer never lies to a common count. WebA plaintiff may make either, or both, a common law fraudulent conveyance claim and a fraudulent transfer claim pursuant to the Uniform Voidable Transactions Act (UVTA). Plaintiff is aided by the proposition, set forth above, and recognized in Miller v. Brown, supra, that it is not necessary in a common count to set forth the date when the defendant became indebted. 745 [289 P. 859]; Roberts v. Griffith Co., 100 Cal.App. Rowley declares that because of the allegation of an oral contract between the parties, count one fails to state a cause of action.

Plaintiff may Serve Discovery Questions to Another Party 10 days after service of complaint. BZemVB[]]]hmu.|RgGm>u Eyiju]62[+ijH:90#m V/m /6B !ld+%M[g6(:/vW2%q,!1O3}UW)^^]wL~m7WA(W5sYsVxxS~mW]\jc`bW. (Citation.) 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.) at p. 277. 2d 528, 532 [25 Cal. Plaintiff was suing for wages and not upon a contract, and we do not believe he was required to state whether or not there was any writing. 871]; Beatty v. Pacific States S. & L. Co., 4 Cal.App.2d 692 [41 P.2d 378]) and an election cannot be forced by demurrer (Wilkerson v. Seib, 20 Cal.2d 556, 563 [127 P.2d 904]). 17707 STUDEBAKER RD, Cerritos CA, 90703. 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." <>/Metadata 94 0 R/ViewerPreferences 95 0 R>> [1] A pleading which is sufficient as a common count is not generally subject to general demurrer or to special demurrer on the ground of uncertainty. The complaint alleged that plaintiff had rendered services for defendant for which he was to receive $15 per day. It has been noted that strict application of the rule under which it is presumed that a contract is in writing would sabotage the salutary effect of the statute. A statute of limitations is Procedural; it affects the Remedy only, not the substantive right or obligation. 0000006629 00000 n Concurrently with this motion, defendant has filed a demurrer to the open book account count because it fails to state The Steiners declined to plead further and the judgment of dismissal followed. Contact us. The third count alleges that, in addition to $400 which the Steiners paid Rowley for his services, he received a secret profit of $2,000 out of a certain escrow pursuant to instructions given by Andersen and Shubert, the grantees of the property purchased by the Steiners. August 6, 1970. (107 Cal.App.2d at pp. The earlier laws had the effect of reversing the former presumption. CRC 3.1320 directs that it should be noticed for hearing under the same rules that govern motions directing that party filing demurrer must set hearing date in accordance with CCP 1005 (amended eff 1/1/23). Quality Counts California. 3). (Code of Civil Procedure section 438(g); Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.) to statute, burden was on plaintiff to establish due care. The complaint alleged that plaintiff had rendered services for defendant for which he was to receive $15 per day. 2d 95, 100 [42 P.2d 706], "The purpose of the amendment is clear. 2d 304 [237 P.2d 320]. 446, s 1, p. 1782; see, The Work of the 1939 California Legislature (1939) 13 So.Cal.L.Rev. Plaintiff was suing for wages and not upon a contract, and we do not believe he was required to state whether or not there was any writing. It is concluded that the trial court erred in sustaining the demurrer on the ground that it was uncertain because it could not be ascertained therefrom whether the contract which gave rise to the indebtedness was written or oral ( 430, subd. Here there is no such patent ambiguity. Robert W. Kenny, Judge. Reversing demurrer sustained to legal malpractice cause of action because plaintiff timely alleged at least one negligent act. 643647; and King, Op. 2d 702, 706 [72 Cal. In Curtiss v. Aetna Life Ins. >XRu8f.^oRUI Since this result may be avoided without injustice to the defendant who seeks to assert the statute of limitations, it is concluded that the provisions of subdivision 8 (formerly 10) of section 430 of the Code of Civil Procedure should not apply to an action based upon a recognized common count which is plead without an ambiguity on its face.

542 0 obj << /Linearized 1 /O 545 /H [ 1106 587 ] /L 252262 /E 116767 /N 29 /T 241303 >> endobj xref 542 23 0000000016 00000 n That statute reads: "An agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission " is invalid unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent. Charles C. Montgomery, Jr., for Appellants. The first of the alternative reasons for the decision may be construed as a suggestion that the provisions of subdivision 8 should not be used to attack a common count. 086 079 7114 [email protected]. 328; 5 S.Cal.L.Rev. You already receive all suggested Justia Opinion Summary Newsletters. [15] Pleading the two causes of action in the alternative did not constitute an election because inconsistent counts are permissible (Haigler v. Donnelly, 18 Cal.2d 674, 680 [117 P.2d 331]; Goldwater v. Oltman, 210 Cal. 998. ), He suggests that it appears that this action may be barred by the two-year limitation because it must be presumed from the failure to allege whether the obligation was in writing that the action is upon a contract, obligation or liability Not founded upon an instrument of writing * * *. (See s 339, subd. 105, 1, p. 1046) section 447 of the Code of Civil Procedure, which was added in 1929 (Stats. The real ground of objection, therefore, is that the complaint does not state facts sufficient to constitute a 0000002761 00000 n 0000000811 00000 n October 27, 2015, 2:00pm . 0000047226 00000 n 12401241; Ferro v. Citizens Nat. Please try again. [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. In Pike v. Zadig (1915) 171 Cal. 489, 1, p. 851) and deleted in 1933 (Stats. From October, 1933, to and including January 22, 1936, Shirley Temple was engaged as a motion picture actress by respondents Fox Film Corporation and Twentieth Century Fox Film Corporation with the approval and consent of appellant, who had arranged, pursuant to his agreement with defendants Gertrude and G.F. Temple, for her loan to said respondents.

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