Demurrer:Poorly Pleaded Breach of Contract::Certiorari:Almendarez-Torres Was Wrongly Decided

Miles v. Deutsche Bank Nat’l Trust Co., No. G050294 (D4d3 Apr. 29, 2015)

Another mortgage case. The details don’t really matter, but it addresses two procedural rules.

First, if a demurrer is sustained with leave to amend, and plaintiff declines to amend within the allotted time, the case gets dismissed and judgment entered for defendant. But plaintiff’s failure to amend does not waive his right to appeal. That's pretty obvious.

The second deals with demurring to a breach of written contract claim. One would think that either the contract needs neither to be attached as an exhibit or its relevant terms stated literally in the complaint. Nope. Venerable California precedent says that a contract can be plead “according to its legal effect[.]”  Stoddard v. Treadwell, 26 Cal. 294, 303 (1864) (“A contract may be declared on according to its legal effect or in hæc verba.”). Which basically means that the plaintiff can get away with pleading a bunch of conclusory stuff that might or might not be supported by the text of the contract and make the defendant suck it up till summary judgement. Unless, that is, the defendant convinces the court to take notice of the documents.

Reversed.