Demurring to a cause of action for fraud in California

Demurring to a cause of action for fraud in California is the topic of this blog post.

This blog post will discuss demurring to a cause of action for fraud in California on the grounds that the cause of action fails to state facts sufficient to constitute a cause of action for fraud.

Code of Civil Procedure section 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.”

However a demurrer has limitations as it can only be used to challenge defects that appear on the face of the complaint, or from matters that can be made the subject of judicial notice. 

However a California Court of Appeal has ruled in a published case that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action.

Both the California Supreme Court and the California Courts of Appeal have ruled in published cases that a cause of action for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Every element must be specifically pleaded, this means that general and conclusory allegations will not suffice. The particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered.

If you have been served with a complaint or cross-complaint that contains a cause of action for fraud you need to carefully examine it for any defects, such as lack of specific allegations such as dates, what was said, etc.

I have worked in California and Federal litigation since 1995 and I have noticed that about one-half of the fraud causes of action I have reviewed were defective in some manner, mostly due to lack of specificity as to dates, what was said, etc.  I have also noticed several cases where a fraud cause of action will be for an alleged false promise, many attorneys will attempt to “convert” a simple breach of contract action and add a fraud cause of action based on a false promise.

Most of the time they are very sloppy at it as on numerous occasions I have noticed that the damages for the breach of contract action and the fraud cause of action are exactly the same amount!  That is a dead giveaway that the fraud cause of action is demurrable.

A California Court of Appeal has ruled in a published case that in order to recover damages for fraud based on a false promise the plaintiff must show specific damages that resulted from the false promise, and show a causal connection between the false promise and the damages.

A general demurrer to fraud cause of action should be filed if you are certain that the complaint does not allege all of the required elements to state a cause of action for fraud.

Attorneys or parties in the State of California who wish to view a portion of a sample 10 page demurrer to a fraud complaint that includes a memorandum of points and authorities with citations to case law and statutory authority and proof of service by mail sold by the author can use the link shown below.

Sample Demurrer to Fraud Complaint for California by Stan Burman on Scribd

 

Attorneys or parties that would like more information on a California law and motion litigation document collection containing over 70 sample documents including a sample demurrer to a fraud complaint sold by the author can use the link shown below.


http://legaldocspro.net/california-law-and-motion-litigation-document-package/  

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.  

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

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.