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:
- Money had and received.
- Money lent or paid.
- Services and material.
- Goods sold and delivered.
- Quantum meruit.
- Open book account.
- 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.