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Ultimate Facts and Demurrer to Complaint

⁠

SUMMARY

This blog is aimed at attorneys or self-represented parties who need to know detailed law underlying the theories of California pleading to defeat a demurrer as a legal challenge to the sufficiency of the complaint. This blog defines a “material allegation of fact,” and attempts to define and distinguish “essential elements,” “ultimate facts,” and “conclusions of law” - most likely with mixed results, at best. These are arcane concepts that few practicing attorneys understand. The point is, when a defendant is asking for more facts, unless a heightened pleading standard applies, the only facts required to survive demurrer are the “ultimate facts.”

DETAILS

Typical Sections in a Complaint

A lawsuit seeking money damages begins when a plaintiff files a complaint seeking damages naming at least one defendant.

As a practical matter, modernly, complaints for damages are divided into sections, typically as follows. (1) background; (2) parties; (3) jurisdiction and venue; (4) cause[s] of action; and (5) prayer for relief.

See the Appendix I Sections of a Complaint for more details.

The Cause of Action

The California Court system’s “

glossary of judicial terms⁠

,” defines a cause of action as “[a] specific legal claim—such as for negligence, breach of contract, or personal injury— alleging that the defendant harmed the plaintiff. Each cause of action is divided into parts, all of which must be proved to win a case.”

The best that I am able to understand is that a “cause of action,” is a group of “ultimate facts,” typed on an otherwise compliant complaint document that if proven to a fact finder would result in a liable verdict in a civil action.

The authoritative guide to the proper words for complete causes of action is the California Judicial Council Civil Jury Instructions or

CACI⁠

book that is published annually. In general, when a case is put to trial for determination of issues of fact before a jury, the parties must use the official published jury instructions and verdict forms that the jurors will answer, unless otherwise instructed by the court. Therefore, it makes sense to type those words verbatim, as the causes of action.

See Appendix II Example of a Cause of Action

Defendant can win by an “Objection,” or Demurrer, but must see if Complaint can be cured

Unsurprisingly, defendants want to defeat a plaintiff’s claims, and frequently, as a practical matter, defendants also want to delay and frustrate a plaintiff.

The “...purpose of....meet and confer [is for]...determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” Code of Civil Procedure section 431.41(a)

See Appendix III the Rules pertaining to Demurrer and Meet & Confer

Ultimate Facts are Sufficient

A common tactic in demurrer is to allege that the complaint is too vague and fails to put the defendant on notice of the claims or what relief is sought.

Now, this is where pleading that seems so formulaic gets arcane; unless plaintiff is pleading fraud, “ultimate facts should be sufficient.

“ [T]o withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law.' ”

Morris v. JPMorgan⁠

Chase Bank, NA (2022) 78 Cal. App. 5th 279, 282.

The exception is when a plaintiff alleges a civil wrong sounding in fraud, the allegations must be factual and pled with particularity; general and conclusory allegations are inadequate. [

Small v. Fritz⁠

Companies, Inc. (2003) 30 Cal.4th 167, 184.]

The reason that fraud must be pled with particularity is that “...because allegations of fraud involve a serious attack on character, fairness requires that the defendant receive the fullest possible details of the charge to prepare a defense.” (5 Witkin, California Procedure (6th ed. 2023) Pleading, § 707.) “ ‘

“This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” ’ [Citation.]” [

Small v. Fritz⁠

Companies, Inc. (2003) 30 Cal.4th 167, 184.]

The reason ultimate facts and not evidentiary facts are all that are necessary and sufficient is they ultimate facts alone serve the important purposes of the complaint.

The complaint in a civil action serves a variety of purposes[, including (1) ...serv[ing]...to frame and limit the issues[;] and [ (2) ] to apprise the defendant of the basis upon which the plaintiff is seeking recovery. In fulfilling this function, the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts.”

Comm. on Children's Television v. General Foods⁠

Corp. (1983) 35 Cal.3d 197, 212.

See also (1)

Fuentes v. Tucker⁠

(1947) 31 Cal.2d 1, 4 [187 P.2d 752]; and (2) See

Leet v. Union Pac. R.R.⁠

Co. (1944) 25 Cal.2d 605, 618-619 [155 P.2d 42, 158 A.L.R. 1008];

Perkins v. Superior Court⁠

(1981) 117 Cal. App.3d 1, 6 [172 Cal. Rptr. 427])

“...[T]he distinction between ultimate facts and conclusions of law is not always clear or easy to state.” Burks v. Poppy Construction Co. (1962)

57 Cal. 2d 463⁠

, 473-474 [20 Cal. Rptr. 609, 370 P.2d 313].

On demurrer, some California Courts have allowed conclusions of law to serve as ultimate facts. See Peninsula etc. Co. v. County of Santa Cruz (1950)

34 Cal. 2d 626⁠

, 629 [213 P.2d 489] [one is the 'owner' of property]; Rannard v. Lockheed Aircraft Corp. (1945)

26 Cal. 2d 149⁠

, 154 [157 P.2d 1] [act was 'negligently' done];

May v. Farrell⁠

(1928) 94 Cal. App. 703, 707 [271 P. 789] [employee was 'acting within the scope of his employment'].)

“The allegation of an ultimate fact usually, if not always, involves one or more conclusions.” Peninsula etc. Co. v. County of Santa Cruz (1950) 34 Cal. 2d 626, 629.

“The term "ultimate fact" generally refers to a core fact, such as an essential element of a claim.” Yield

Dynamics, Inc.⁠

v. Tea Systems Corp. (2007) 154 Cal.App.4th 547, 559, [66 Cal.Rptr.3d 1]. "`[U]ltimate fact'" is a slippery term, but in general it refers to a core fact, such as an element of a claim or defense, without which the claim or defense must fail. Yield

Dynamics, Inc.⁠

v. Tea Systems Corp. (2007) 154 Cal.App.4th 547, 559.

Examples of ultimate facts versus evidentiary facts include the following:

Examples of Ultimate Facts vs. Evidentiary Facts

Examples of Ultimate Facts vs. Evidentiary Facts

Ultimate Fact

Evidentiary Fact

Authority

Defendant owns the property.

Defendant is named on the tax title of the property.

Peninsula etc. Co. v. County of Santa Cruz (1950) 34 Cal. 2d 626, 629

Defendant executed a promissory note

Defendant signed a piece of paper that had the title ‘Promissory Note.’

Estate of Bixler (1924) 194 Cal. 585, 589-590 [229 P. 704]

Plaintiff has an immediate compelling necessity to recover possession of their premises for use and occupancy as a dwelling for himself [herself].

Plaintiff lost possession of his residence and now wants to live in the apartment that Plaintiff rents to Defendant to avoid finding another residence.

Krug v. Meeham (1952) 109 Cal. App. 2d 274, 276

Defendant negligently operated the vehicle.

Defendant drove at excessive speeds and swerved between lanes.

Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal. 2d 149, 155.

There are no rows in this table

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APPENDIX 1 SECTIONS OF A COMPLAINT

The complaint is a type of “pleading.” The rules of pleading can be found at Code of Civil Procedure section

420 to 475⁠

. Generally, a complaint consists of “(1) [a] statement of the facts constituting the cause of action, in ordinary and concise language. and (2) [a] demand for judgment for the relief to which the pleader claims to be entitled. If the recovery of money or damages is demanded, the amount demanded shall be stated.” CCP

425.10⁠

One a short narrative of the “story” of the case from plaintiff’s perspective.

Two, a list of the parties, including “Doe,” parties, whom the plaintiff includes as somehow associated with the civil wrongs, but whose identifies are unknown to plaintiff. Does are included for ease of amending in the future. CCP

474⁠

Three, most complaints that I have seen state the basis for venue, though often call it jurisdiction. Venue is where the case should be heard, and generally is either the County where the event happened or where any California resident defendant lives. CCP

392 to 405⁠

Four, the complaint proceeds into separate sections that are numbered sequentially and that are called “causes of action.”

Five, there is a prayer for relief that asks for money damages above the jurisdictional minimum, equitable relief, reasonable attorney fees & costs on applicable causes of action and other such relief as the Court deems just and proper.

APPENDIX II EXAMPLE OF A CAUSE OF ACTION

Appendix II for an example of a cause of action.

CAUSE OF ACTION ONE

(Motor Vehicle Negligence - Against Defendant David Driver)

Plaintiff re-alleges and incorporates all previous allegations by reference.

The statute of limitations for this cause of action is two (2) years.

As a material allegation of fact, Defendant David Driver had a duty to provide a standard of care of avoiding causing harm.

As a material allegation of fact, Defendant David Driver was negligent and thereby breached his duty to provide the standard of care by failing to drive in a manner required to avoid harming others.

As a material allegation of fact, Defendant David Driver’s negligent driving was a substantial factor in causing harm Plaintiff.

Thereby, Plaintiff demands judgment that David Driver is Liable for Motor Vehicle Negligence and states and prays for all damages caused thereby within the two-year period prior to the filing of this complaint and thereafter in an amount according to proof.

Note: See

CACI 2024⁠

Numbers 400 and 401, pages 232-238 [PDF pages 305-312]

APPENDIX III RULES OF DEMURRER

A particularly easy way to delay and potentially defeat a plaintiff is through demurrer, or alternatively motion to strike. A demurrer is a legal challenge to the sufficiency of the pleadings. If demurrer is sustained, the complaint cannot result in a successful lawsuit. Generally, the Court will grant leave to amend, but, where leave to amend is futile, or plaintiff has previously failed to cure, the court may deny leave to amend, and the plaintiff will lose.

Prior to Filing a Demurrer, in theory, the Defendant is obligated to see is agreement could be reached to resolve what Defendant purports are deficiencies in the Complaint

Prior to filing a demurrer, a defendant is required to meet & confer, meaning discuss why the defendant thinks the complaint is legally deficient. [CCP

430.41⁠

]. At that point, the plaintiff has the opportunity to prove the legal sufficiency of the complaint to the defendant or to show how the complaint could be amended.

Ironically, by demurring, as a practical matter, the defendant is, in theory, legally obligated to cooperate by either agreeing with the proposed cures, or explaining why the proposed cures are still insufficient. Some defendants won’t do this, but, because meet & confer is evidence in the demurrer, many defendants do.

A common tactic in demurrer is to allege that the complaint is too vague and fails to put the defendant on notice of the claims or what relief is sought.

APPENDIX IV CITATIONS

⁠

Estate of Bixler⁠

(1924) 194 Cal. 585, 589-590 [229 P. 704]

⁠

Rannard v. Lockheed⁠

Aircraft Corp. (1945) 26 Cal. 2d 149

⁠

Dynamics, Inc.⁠

v. Tea Systems Corp. (2007) 154 Cal.App.4th 547, 559.

SUMMARY

DETAILS

Typical Sections in a Complaint

Defendant can win by an “Objection,” or Demurrer, but must see if Complaint can be cured

The “...purpose of....meet and confer [is for]...determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” Code of Civil Procedure section 431.41(a)

Ultimate Facts are Sufficient

Examples of Ultimate Facts vs. Evidentiary Facts

APPENDIX 1 SECTIONS OF A COMPLAINT

APPENDIX II EXAMPLE OF A CAUSE OF ACTION

APPENDIX III RULES OF DEMURRER

APPENDIX IV CITATIONS

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