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Legal Memorandum: Special Demurrer in a Contract Action

Issue: Under California law, when will a special demurrer in a contract action be sustained?

Area of Law: Business Organizations & Contracts, Litigation & Procedure
Keywords: Special demurrer; Contract action
Jurisdiction: California
Cited Cases: 277 P. 197; 108 Cal. 300; 209 P.2d 825; 25 Cal. App. 3d 1; 93 Cal. App. 2d 678; 101 Cal. Rptr. 499
Cited Statutes: None
Date: 03/01/2007

The court properly sustains a special demurrer when a contractual relationship between the plaintiff and defendant cannot be ascertained.  See Zumbrun v. Univ. of S. Cal., 25 Cal. App. 3d 1, 9, 101 Cal. Rptr. 499, 503-04 (1972) (special demurrers were properly sustained where it could not be ascertained whether the contract upon which the plaintiff based her cause of action was oral or written); Philp v. Durkee, 108 Cal. 300, 303, 41 P. 407, 408 (1895), 108 Cal. at 303, 41 P. at 408 (allegation that the plaintiff was damaged by breach of contract was immaterial, because the defendant did not contract with the plaintiff).  See also Neal v. Bank of Am. Nat’l Trust & Sav. Ass’n, 93 Cal. App. 2d 678, 681, 209 P.2d 825, 826 (1949) (absent allegation that there was any agreement between the plaintiff and the defendant, the complaint was vulnerable to demurrer); Martin v. Bank of San Jose, 277 P. 197, 200, 98 Cal. App. 390, 397-98 (1929) (when contract pleaded is indefinite, uncertain, and inexact, demurrer is appropriate). 

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