Common counts (open book account, account stated, money had and received) are fast to plead but routinely demurred in cases where an express contract governs the relationship. Shows when common counts add genuine tactical value alongside a breach of contract claim -- and when they create redundancy the opposing party will use against you.

Common Counts in a Cross-Complaint Survive Even When a Contract Exists

You've been sued on a commercial contract. You have your own claims against the plaintiff — for money owed, goods delivered, or services rendered. The question is whether you should plead those claims as common counts alongside your breach-of-contract cause of action, or whether the existence of the express contract forecloses those alternative theories at the pleading stage. The answer matters because a demurrer aimed at knocking out your cross-complaint will almost certainly target the common counts first.

The Cross-Complaint

What the Law Requires

California permits alternative pleading at the demurrer stage. A cross-complainant may allege common count theories — open book account, account stated, goods sold and delivered, services rendered, money had and received — alongside an express breach-of-contract cause of action arising from the same transaction. The mere existence of a contract does not defeat common counts at this stage.

The pleading standard for common counts is intentionally minimal. Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958 sets out what each count requires: for open book account, the cross-complainant must allege (1) a book account, (2) the account shows a balance due, and (3) the defendant has not paid. For account stated: (1) prior transactions established the amount owed, and (2) the amount was stated and agreed to. For money had and received: (1) the defendant received money from the plaintiff, and (2) in equity and good conscience the defendant should pay it. In each case, the specific amount must be pled.

A demurrer to a common count succeeds only when the count fails to allege an indebtedness, the amount owed, or a transaction giving rise to the debt. The threshold is low. Courts routinely overrule demurrers to common counts unless the count is entirely conclusory or omits the amount altogether. Code of Civil Procedure section 428.30 confirms the right to assert multiple inconsistent theories in a cross-complaint.

What the Corpus Shows

In CAB v. Champion Power Equipment (L.A. Superior Ct. No. 25NWCV03878, May 2026), the court considered a cross-complaint asserting breach of contract alongside common-count theories in a commercial goods dispute. The cross-defendant demurred, arguing that the existence of an express contract preempted the common count claims. The court overruled the demurrer, applying the principle that alternative pleading is proper at the demurrer stage regardless of whether an express contract governs the relationship.

The CAB ruling tracks the established rule: a cross-complainant is not required to elect between contract and common count theories until a later stage of the litigation. The common counts serve as a safety net. If the express contract holds up at trial, the cross-complainant recovers on contract. If the contract fails — because its terms are disputed, its formation is challenged, or it proves unenforceable — the common count provides an independent theory for the same underlying debt.

One important limit: common counts are not a substitute for express contract when the contract's terms are clear and the cross-complaint acknowledges them. If the cross-complaint concedes an enforceable contract and then seeks the contract price under a common count label, expect the demurrer to succeed on that count.

What Counsel Does

If you are the moving party (cross-defendant demurring to common counts):

Identify whether the cross-complaint alleges an enforceable contract whose terms are undisputed. If the cross-complainant has acknowledged the contract and seeks only the contract price, argue that the common count is duplicative and the cross-complainant has already elected its remedy.
Confirm whether each count alleges the specific amount owed. A common count that omits a dollar figure is vulnerable.
Do not waste a demurrer argument on the proposition that "an express contract bars common counts." California courts reject this at the pleading stage. Save that argument for summary judgment after discovery.
If the cross-complaint's common counts are genuinely conclusory — no amount, no transaction described — demur specifically to those deficiencies rather than to the theory itself.

If you are the opposing party (cross-complainant defending common counts):

Plead each common count as a separately numbered cause of action with its own element-by-element allegations. Do not lump theories together.
State the specific dollar amount owed in each count. This single fact defeats the most common demurrer argument.
Allege the underlying transaction with enough specificity to identify the goods delivered, services rendered, or money transferred. "Commercial goods in an amount to be determined" is insufficient.
Brief the alternative-pleading rule explicitly in your opposition. Cite Utility Audit and Code of Civil Procedure section 428.30. Courts rarely sustain demurrers to adequately pled common counts, and a well-briefed opposition shortens argument.
Keep the common counts alive through the pleading stage even if you are confident in your contract theory. Formation and enforceability disputes are frequent in commercial litigation; the common count is insurance.

This article is for educational purposes only and is not legal advice. All frameworks and sample language should be reviewed by a licensed attorney and adapted to your particular client, case, and situation.