A demurrer is a type of motion that can be filed with the court instead of filing an

answer. The deadline for filing is the same as your answer. The arguments in this
demurrer specifically address a complaint for breach of contract where no exhibits
are attached. Generally, the contract is required to pursue a breach of contract
claim, so they won't be able to proceed with their case until they present the
contract to the court.

Here's the meat of the brief:

_________________________

I. INTRODUCTION & RELEVANT BACKGROUND

Defendant ______________ ("Defendant") respectfully submits the following

Memorandum of Points and Authorities in support of her General Demurrer to
Plaintiff Midland Funding LLC’s (“Plaintiff”) Complaint.

On ___________________, Plaintiff filed the instant suit for monetary damages in

the sum of $____________. In its Complaint, Plaintiff claims this amount accrued
under a written agreement between the parties. Plaintiff’s Complaint, however, is
fatally flawed. Plaintiff neither attaches a copy of the purported agreement with
Defendant to its Complaint, nor pleads any of the essential elements of the alleged
contract. The lack of a contract or, alternatively, a recitation of its terms, leaves
Defendant completely in the dark as to the basis of the claim being asserted against
her by an entity which is completely unknown to her. Plaintiff conspicuously fails to
provide information regarding the date the purported contract was entered into or
even the subject of the contract (i.e., whether for goods, services, credit, etc.).

Not only does Plaintiff’s vague pleading fly in the face of the interests of justice, such
pleading is prohibited by statute. As set forth in more detail below, Plaintiff has
wholly failed to meet its statutory obligations under California Code of Civil Procedure
[“CCP”] Section 430.10(e), and it is respectfully requested that the Court sustain
Defendant’s demurrer without leave to amend since it appears that there is no
reasonable possibility that Plaintiff can cure the fatal defects.

II. LEGAL AUTHORITY

A. A Demurrer is Properly Sustained Where a Pleading Fails to State Facts Sufficient

to Constitute a Cause of Action

A general demurrer is proper when the complaint fails to allege facts sufficient to
constitute a cause of action. (CCP § 430.10(e).) To determine whether a complaint
fails to allege sufficient facts, a demurrer must challenge defects that appear on the
face of the complaint. (Id., § 430.30(a).) The “face of the complaint” includes
matters shown in exhibits attached to the complaint and incorporated therein by
reference and matters of which the court may take judicial notice. (Ibid.; Frantz v.
Blackwell (1987) 189 Cal.App.3d 91, 94.) If upon consideration of all facts stated it
appears that plaintiff is not entitled to the relief sought, the complaint or any causes
of action therein will be held invalid. (Songer v. Cooney (1989) 214 Cal.App.3d 389,
390.)

It is well settled that a plaintiff must set forth specific facts in a complaint so that the
defendant may plead intelligently and responsively to the pleading without having to
guess or speculate as to the items of material or essential facts. (See Ankeny v.
Lockheed Missile & Space Company (1979) 88 Cal.App.3d 931, 937.)

In the instant action, Plaintiff’s entire Complaint is subject to demurrer because it

fails to state facts sufficient to constitute causes of action for common counts (First
Cause of Action) or breach of contract (Second Cause of Action). (Code Civ. Proc. § §
430.10(e).)

B. Plaintiff’s Claims for Breach of Contract and Common Counts Fail as a Matter of
Law

In order to make out a claim for breach of contract, Plaintiff must plead the contract,
its performance of the contract or excuse for nonperformance, Defendant’s breach
and the resulting damage. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.)

Here, Plaintiff fails to plead the terms of the alleged agreement between the parties
or to attach a copy of the alleged agreement to the Complaint. Instead, Plaintiff
alleges a written agreement was entered not on a specific date but rather “within the
last four years.” (See Complaint at p. __, ¶ ___.) Plaintiff then merely inserts the
following boilerplate language claiming it constitutes the essential terms of this
alleged contract:

“Plaintiff, or Plaintiff’s assignor, and defendants, and each of them, entered into a
written agreement. By the terms of the said agreement(s), plaintiff provided
defendants, and each of them, with [services rendered] and/or [goods, wares and
merchandise] and/or [extension of credit] and/or [monies paid laid out or expended]
at defendant(s) request.”
(See Complaint at p. __, ¶ ___.)

If the action is based on an alleged breach of a written contract, the terms must be
set out verbatim in the body of the complaint or a copy of the written instrument
must be attached and incorporated by reference. (Wise v. Southern Pacific Co.
(1963) 223 Cal.App.2d 50, 59, emphasis added; Otworth v. Southern Pacific
Transportation Co. (1985) 166 Cal.App.3d 452, 458-59.)

It is clear from the face of the Complaint that the above boilerplate language is not
from any finalized written agreement but rather sample contract terms designed to
be tailored to a specific agreement, hence the bracketed terms where the essential
elements are meant to be placed. Not only is inserting language from some sort of
sample contract inartful, Plaintiff's inclusion of the same highlights the falsity of its
claims.

Similarly, under a cause of action for common counts on open book account and
account stated, Plaintiff alleges as follows:

“By the terms of the said agreement(s), Plaintiff or Plaintiff’s assignor, provided
defendants, and each of them, with services rendered and/or goods, wares, and
merchandise and/or extension of credit at defendant’s special instance and request
and in consideration thereof defendants promised to provide payment in the sum of
$_________ and interest thereon which defendants and each of them failed to
provide.”
(Complaint at p. ___, ¶ ____.)
Based on the foregoing, Defendant is wholly unable to ascertain whether a contract
actually exists or what precise terms were purportedly breached. This wholesale
failure to allege the verbatim terms of the contract, or to attach the agreement, thus
renders Plaintiff’s breach of contract/common counts claim fatally defective.

C. The Demurrer Should be Sustained Without Leave to Amend Since There is No

Reasonable Possibility Plaintiff Can Cure The Defects

A demurrer must be sustained without leave to amend absent a showing by the

plaintiff of a reasonable possibility that the defect can be cured by amendment.
(Blank v. Kirwan (1985) 39 Cal.3d 311; Lacher v. Superior Court (1991) 230
Cal.App.3d 1038, 1043.) The burden of proving such reasonable possibility is
squarely on the plaintiff. (Torres v. City of Yorba Linda (1993) 13 Cal.App.4th 1035,
1041; Blank, 39 Cal.3d at 318; see also, Lacher, 230 Cal.App.3d at 1043.)

Here, Defendant’s demurrer should be sustained without leave to amend since there
does not appear to be any reasonable possibility that Plaintiff can amend its
Complaint to overcome demurrer. If Plaintiff, who presumably is aware it carries the
burden of proof, possessed the alleged contract with Defendant, it is unlikely that
Plaintiff would have simply neglected to attach it. Its failure to do so is evidence of
the fact that no contract between the parties has ever existed. Its failure to plead the
requisite “essential terms” of the alleged contract – let alone any of the terms
whatsoever – is further evidence that no contract exists and that Plaintiff’s Complaint
is without merit.

Having established that it does not have any written agreement with Defendant, and
having established that it is not aware of when the purported agreement was entered
into, whether it was for goods, services, credit or otherwise, Plaintiff cannot, in good
faith, amend to cure such defects. Leave to amend should, therefore, be properly
denied.

III. CONCLUSION

For the foregoing reasons, Defendant respectfully requests that the demurrer to
Plaintiff's Complaint, in its entirety, be sustained without leave to amend.