California Demurrer — Claim Types

Elements: (1) existence of a contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; (4) resulting damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

The complaint must state on its face whether the contract is written, oral, or implied by conduct. (Code Civ. Proc. § 430.10(g); Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-459.) This is a hard formal requirement — an otherwise well-pleaded contract claim can be demurred for omitting this.

Plaintiff may plead the legal effect of the contract rather than its precise terms. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) But if you plead legal effect, you must be comprehensive — no gaps.

Corporate agents acting for and on behalf of a corporation cannot be held personally liable for breach of a contract made on the corporation's behalf. (Strawn v. Morris, Polich & Purdy, LLP (2019) 30 Cal.App.5th 1087, 1092.)

Moving party: Check whether the complaint identifies the contract type (written/oral/implied). Check whether the substance of the relevant terms is alleged — not just that 'an agreement existed.' For oral contracts, are the material terms definite enough to measure performance? Is the defendant a corporate agent sued individually?

Opposing party: Plead the type of contract explicitly in the first paragraph of the cause of action. Identify the specific allegation that establishes each material term. Legal-effect pleading is sufficient but must cover the substance of each relevant term, performance, and the specific breach.

Watch for: The § 430.10(g) trap. Attorneys routinely plead 'plaintiff and defendant entered into a contract' without saying whether it was written or oral. One sentence fixes this. Missing it loses the demurrer.

The implied covenant protects the express covenants of the contract — it cannot impose substantive duties or limits beyond what the contract establishes. (Berlanga v. University of San Francisco (2024) 100 Cal.App.5th 75, 88.) Without a contractual relationship, there is no implied covenant claim.

The covenant requires the parties not to prevent the other from receiving the contract's benefits, and to act in good faith in exercising discretionary powers. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1393-1395.)

Moving party: Does the implied covenant claim allege conduct that is independent of the breach of contract claim? If the implied covenant claim rests on identical acts as the breach of contract claim, it adds nothing and the demurrer should be sustained. (Careau, supra, 222 Cal.App.3d at 1395.) Does the plaintiff seek to use the covenant to add obligations the contract doesn't contain? Is there a contract at all?

Opposing party: The implied covenant and breach of contract claims can coexist if based on different conduct. Identify clearly in the complaint which acts constitute breach of express terms and which constitute breach of the covenant. If the demurrer argues the claims are duplicative, show how the conduct supporting each differs.

Watch for: Courts sustain demurrers to implied covenant claims that are word-for-word identical to the breach of contract claim with 'implied covenant' substituted. Keep these claims factually distinct or combine them.

The threshold question before filing a SOL demurrer: Does the complaint establish, on its face, that the claim is time-barred? If answering this requires resolving a factual dispute — when did the attorney-client relationship end, when did plaintiff discover the injury, when did the clock start — that is a summary judgment question, not a demurrer question. Filing a SOL demurrer that requires factual findings educates the other side for free.

Discovery rule: Plaintiff whose complaint shows on its face that the claim is time-barred must specifically plead: (1) the time and manner of discovery; and (2) the inability to have made earlier discovery despite reasonable diligence. Conclusory allegations of tolling will not withstand demurrer. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)

Key limitations periods:

• Defamation/slander: 1 year
• Fraud: 3 years (Code Civ. Proc. § 338, subd. (d))
• Warranty: 4 years from delivery, unless warranty explicitly extends to future performance (Com. Code § 2725(2); Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297)
• Legal malpractice (§ 340.6): 1 year from discovery, or 4 years from date of actionable malpractice — whichever is first. Tolled during attorney's continuing representation in the specific subject matter. Applies to all attorney misconduct except actual fraud, including breach of contract claims whose merits depend on proof of a professional obligation violation. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1236-1237.) Transition work does not extend tolling. (Shaoxing City Maolong Wuzhong Down Products, Ltd. v. Keehn & Associates, APC (2015) 238 Cal.App.4th 1031, 1039.)

Moving party: Does the complaint show on its face — based only on what's in the complaint — that the statute has run? If tolling is alleged: is it alleged with specific facts or just labels? If there is any ambiguity about when the clock started, save this argument for summary judgment.

Opposing party: If the defendant's SOL argument requires the court to determine when the clock started based on disputed or unclear facts: make this point directly. 'The date defendant relies upon is not established on the face of the complaint. This is a factual dispute the court cannot resolve on demurrer.' (Worthington v. Rusconi (1994) 29 Cal.App.4th 1488, 1497.) If you need tolling: plead the discovery rule facts specifically — date of discovery, how you discovered it, what you did before that and why it didn't reveal the claim sooner.

The UCL is written in the disjunctive — three separate varieties: unlawful, unfair, or fraudulent. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) A complaint need only state facts supporting one of the three. The 'unlawful' prong applies broadly to anything that can properly be called a business practice that is at the same time forbidden by law. (People v. E.W.A.P., Inc. (1980) 106 Cal.App.3d 315, 318-319.)

UCL claims must be pleaded with reasonable particularity — not fraud-level specificity, but not pure conclusory allegations either. (Gutierrez v. Carmax Auto Superstores Cal. (2018) 19 Cal.App.5th 1234, 1265.)

Moving party: Is the UCL claim purely derivative of other claims that themselves fail? If the predicate 'unlawful' or 'unfair' acts are stated only in other causes of action that are being demurred, the UCL claim may fall with them. Is the complaint challenging the remedy (damages) rather than the claim itself? If so, use a motion to strike, not a demurrer. (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562.) Courts will overrule a demurrer that attacks only the damages prayer.

Opposing party: The UCL's disjunctive structure is your friend. Even if the 'fraudulent' prong is inadequately pleaded, 'unlawful' or 'unfair' may survive independently. If defendant demurs on remedy grounds: flag it — motion to strike is the right vehicle, not a demurrer. Ask for the demurrer to be overruled on this basis.