Collection of Money

In California many attorneys are under the impression that it is not possible to file a General Demurrer to Common Counts. This is not always true as there are exceptions. In particular, there are many cases in which Plaintiff has included a Breach of Contract or other cause of action along with several Common Counts.

There are several Common Count causes of action including:

  1. Money had and received.
  2. Money lent or paid.
  3. Services and material.
  4. Goods sold and delivered.
  5. Quantum meruit.
  6. Open book account.
  7. Account stated.

It is true that common counts are not subject to a general demurrerAuckland v. Conlin (1928) 203 Cal. 776, 777, but they are subject to the rule that “if plaintiff is not entitled to recover under one count in a complaint wherein all the facts upon which his demand is based are specifically pleaded, it is proper to sustain a demurrer to a common count set forth

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in the complaint, the recovery under which is obviously based on the set of facts specifically pleaded in the other count.”Hays v. Temple (1937) 23 Cal.App.2d 690, 695; Lambert v. Southern Counties Gas Co. (1959) 52 Cal.2d 347, 353; Orloff v. Metropolitan Trust Co. (1941) 17 Cal.2d 484, 489.

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