Citations - Special Remedies - common Law procedures
If you have ever had contact with a court on a self represented party, you may have tried desperately to find out how to follow *court procedures* and proper form. It is rare to find a court which still understands that common Law procedures are still allowed in EVERY court in America. Demurrers were removed from the reach of ATTORNEYS and LAWYERS [those in the profession] but not from the people. Remember though, your in *their sandbox*.
Common Law is still contained within the Civil Rules of the federal courts, and generally guaranteed to the people within the state constitutional contracts. Expect though, that the court and opposing attorney will scoff at you for trying commn Law remedies in their court.
If you are the least bit in fear of the court process, then make sure you get an attorney or lawyer. On the other hand, if using common Law remedies, make sure you don't walk into the procedural mess of attempting to mimic the opposing attorney/lawyer, that's exactly what they want you to do.
Be cautious in the use of common Law. You must walk a thin line, so make absolutely sure you know how to proceed.
Demurrers - Common Law
"To sustain a demurrer for want of jurisdiction, the defect
must appear on the face of the accusatory pleading."
People v. Tolbert (1986, 3d. District), 176 Cal. App. 3d.
685, 222 Cal. Rptr. 313.
COMMENT - this is not legal advise
This could be used against most if not all present actions in courts.
To be a proper action against an individual of America, the parties full names must be present upon the face of the complaint or action, in it's caption. Therefore, name abbreviation name [such as John H. Doe], is NOT the party but a corporation/business/person, hence there is no action before the court. However, the court MUST be informed of such via NOTICE of that fact. Any other response, except this NOTICE, allows the court to hear the matter, having waived the issue of 'no subject matter' and 'no in person' jurisdiction.
Expect the prosecutor and possibly the court to attempt to ammend the complaint to include the full name, though in ALL CAPITAL letters. That too, is a misnomer, not the actual individual. Again, NOTICE must be placed, that this also is not you as the supposed individual before the court.
If they then modify the complaint to state your actual name (John Herbert Doe) they are attempting to bring you, as an actual individual, before the court. However, this is also wrong. For the state to attack the individual, it must show it's authority [corporate charter], the authority of the statute [state corporate by-laws], and whether it applies to the individuals or 'persons' [legal creations].
At that time, another NOTICE comes to play; the questions to be answered BEFORE entry into the court. [See: Notice of questions/interrogatories - common-law constitutional activity
Not uniquely, common-law activities in courts are supposedly no longer accepted or allowed, yet these are NOT common-law activities, these are constitutionally guaranteed activities in every state, to state Citizens, and, the People of the state in ALL courts, state and federal, that being DUE PROCESS.
END COMMENT
"The erroneous overruling of a non-statutory demurrer by a
trial court is possible, and can result in reversal of the
judgment of conviction on appeal. Thus, a non-statutory, common
law demurrer exists as a vehicle for constitutional and other
attacks on the sufficiency of an accusatory pleading."
People v. Jackson (1985, 1st District), 171 Cal. App. 3d.
609, 217 Cal. Rptr. 540.
"151. A demurrer admits, for the purpose of the decision on the demurrer, and for that purpose only, all matters of fact that are well pleaded. It does not admit matters of fact that are not well pleaded, nor does it admit allegations of conclusions of law or of fact." Common Law Pleading Hornbook Series (1923), Benjamin J. Shipman, p. 282.
"156. Where an issue in law is tendered by demurrer the
opposing party must join in it.
The tender of an issue of law must always be accepted.
[Citations.] A party cannot decline a question on the legal
sufficiency of his own pleading without abandoning it [his
pleading]. The acceptance is therefore as imperative as in the
case of an issue of fact. . . . With respect to issues in law
tendered by a demurrer, it is immaterial whether the demurrer be
in proper form or not. In either case the opposite party is
equally bound to join in demurrer; for it is a rule that there
can be no demurrer upon a demurrer [citations], and there is no
ground for a traverse or pleading in confession or avoidance,
while the pleading to which the demurrer is taken is still
unanswered."
Common Law Pleading Hornbook Series (1923), Benjamin J.
Shipman, pp. 288-289.
"A demurrer only admits the facts that are well pleaded. It
does not admit conclusions, either of law or of fact, which the
adverse party may have seen fit to draw in his pleading
[citations]. Nor will it admit an averment contrary to what
before appears certain on the record [citations], or an averment
which the pleader was estopped to make [citations]; nor an
averment which the court can judicially know to be impossible or
untrue [citations]; nor an immaterial averment
[citations]."
Common Law Pleading Hornbook Series (1923), Benjamin J.
Shipman, p. 282-283.
"A demurrer does not admit as true facts which are alleged as
conclusions of law, evidence, matters of opinion, or
surplusage."
Carpenter v. Hamilton (1943) 59 C.A.2d 146, 138 P.2d 353,
59 C.A.2d 149, 138 P.2d 149.
"A demurrer admits allegations of fact but not conclusions of
the pleader."
Cedars of Lebanon Hospital v. Los Angeles County (1949)
206 P.2d 915, subsequent opinion 35 C.2d 729, 221 P.2d 31, 15
A.L.R.2d 1045.
"The presence of a pleader's conclusion does not strengthen
the pleading when attacked by demurrer."
Lyon v. Carpenter's Hall Ass'n. of San Francisco (1924),
66 C.A. 550, 226 P. 942.
"Conclusions of the pleader are not admitted by
demurrer."
Youdall v. Kaufman (1921), 55 C.A. 363, 203 P.
448.
"General demurrers admit the truth of all the material factual
allegations of the complaint, regardless of any possible
difficulty in proving them, but do not admit allegations which
constitute conclusions of law or which are contrary to matters of
which judicial notice must be taken."
Martinez v. Socoma Cos. (1974), 11 C3d 394, 113 Cal.
Rptr. 585, 521 P.2d 841.
"A general demurrer, not a motion to strike, is the
appropriate method of attacking the sufficiency of a
complaint."
Bezaire v. Fidelity & Deposit Co. (1970), 12 C.A.3d
888, 91 Cal. Rptr. 142.
"The question of whether a pleading is ambiguous and uncertain
cannot be raised by a general demurrer."
Bennett v. Morris (1894), 4 C.U. 834. 37 P.
929.
"An objection to a complaint, on the ground of ambiguity or
uncertainty, can be taken only by special
demurrer."
Kirsch v. Derby (1892), 96 C. 602, 31 P. 567.
[bold added]
"Objection that complaint is ambiguous cannot be taken under
general demurrer."
Slattery v. Hall (1872), 43 C. 191.
"Where is complaint states all the necessary facts, but states
them imperfectly, a demurrer, to be effective, must be special,
and directed against the particular defects complained of."
Tehama County v. Bryan (1885), 68 C. 57, 8 P.
673.
Special Demurrer
"Formal defects in answer could be reached only by special
demurrer."
Anglo California Trust v. Kelley (1931), 117 C. A. 692, 4
P.2d 604.
"Uncertainty in contract is not matter for special demurrer by
party promisor to complaint thereon. Civ. Code 1654."
Juri v. Koster (1927), 84 C.A. 298, 257 P.
901.
"Where a complaint states imperfectly all the facts essential
to a recovery, a demurrer to be effectual must be special and
point out the very defect."
Union Ice Co. v. Doyle (1907), 6 C.A. 284, 92 P.
112.
"Objection that complaint is ambiguous or uncertain or that essential facts appear only inferentially, as conclusion of law must be raised by special demurrer." Cullinan v. Mercantile Trust Co. of California (1927), 80 C.A. 377, 252 P. 647.
"Objection that essential facts appear only inferentially must
be raised by special demurrer."
Manuel v. Calistoga Vineyard Co. (1936), 17 C.A.2d 377,
61 P.2d 1204.
"Conclusion of law is insufficient statement of fact when
attacked by general demurrer, and no estoppel, waiver, or other
cure appears of record. Code Civ. Proc. 426."
Smith v. Bentson (1932), 127 C.A.Supp. 789, 15 P.2d
910.
"Common counts, though mainly conclusions of law, are not
subject to either general or special demurrer."
Smith v. Bentson (1932), 127 C.A.Supp. 789, 15 P.2d
910.
Waiver of Demurrer
"If, after demurrer, the defendant pleads, he waives the
demurrer."
Pierce v. Minturn (1851), 1 C. 470.
"Consent to overruling of demurrer does not waive demurrer for
want of sufficient cause of action."
Harris v. Seidell (1934), 1 C.A.2d 410, 36 P.2d
1104.
"A general demurrer is not waived by consenting that it may be
overruled."
Evans v. Gerken (1894), 105 C. 311, 38 P.
725.
"Demurrers on which the record shows no action to have been
taken will be considered waived."
Diamond Coal Co. v. Cook (1900), 6 C.U. 446, 61 P.
578.
"Code Civ. Proc. 472, provides that a demurrer is not
waived by filing an answer at the same time. Held, that a
demurrer to a complaint is not waived by the subsequent filing of
an answer upon leave given by the court."
Curtiss v. Bachman (1890), 24 P. 379, 84 C.
216.
Admissions as to statutes or as to foreign laws
"If a pleading misstates the effect and purpose of the statute
upon which the party relies, a demurrer to the pleading does not
admit the correctness of the construction, or that the statute
imposes the alleged obligations or confers the alleged
rights."
Pennie v. Reis (1889), 132 U.S. 464, 10 S.Ct. 149, 33
L.Ed. 426.
(Note: Read this Case!!!)
Specification of Grounds
"Specification must be made of grounds on which a complaint is
subject to special demurrer."
Johnson v. Clark (1936), 7 C.2d 529, 61 P.2d
767.
"Defendant desiring more specific pleading or more information
should demur specially or demand a bill of particulars. Code Civ.
Proc. 454."
Cooney v. Glide (1929), 97 C.A. 77, 275 P.
257.
Necessity of Demurrers - failure to object to complaint is waived on appeal
"Where record did not disclose that a demurrer was interposed
to the complaint because of alleged lack of essential
allegations, complaint would be liberally construed on appeal in
aid of judgment for plaintiff."
American Marine Paint Co. v. Tooley (1942), 52 C.A.2d
530, 127 P.2d 960.
"On objection that complaint does not state cause of action
raised for first time on appeal, pleading will be liberally
construed and, if necessary facts appear even by implication or
as a conclusion of law, judgment based upon complaint will be
upheld."
Newmire v. Chapman (1937), 64 P.2d 734, 18 C.A.2d
360.
"Where complaint is first attacked on appeal as not stating
facts sufficient to constitute a cause of action, it will then be
liberally construed and upheld, if necessary facts appear by
implication only, or as a conclusion of law."
Tietke v. Forrest (1923), 64 C.A. 364, 221 P.
681.
"A pleading is to be construed most strongly against the
pleader, at least when they are sworn to."
Green v. Covillaud (10 C. 317, 70 Am. Dec.
725.
"Pleadings in abatement should be strictly construed."
Kadota Fig Ass'n. of Producers v. Case-Swayne Co. (1946),
73 C.A.2d 796, 167 P.2d 518.
"Complaint, upon demurrer, is construed most strongly against
the pleader."
Tehama County v. Pacific Gas & Electric Co. (1939),
44 C.A.2d 566, 91 P.2d 645.
"Demurrer for uncertainty lies for what is said with uncertain
meaning and not for what is omitted."
Smith v. Hollander (1927), 85 C.A. 535, 259 P.
958.
Demurrer and Answer
"The defendant may demur and answer at the same time to the
entire complaint, and also to each cause of action stated
therein."
People v. McClellan (1866), 31 C. 101.
"An issue of law and fact should not be mixed in an answer. A
demurrer should be filed as a separate pleading."
Brooks v. Douglass (1867), 32 C. 208.
"When considering the sufficiency of a pleading attacked by
demurrer, defects in the pleading attacked cannot be held to be
cured by allegations in an answer filed at the same time as the
demurrer, for the answer is before the court only in the event
that the pleading withstands the test of the demurrer."
Metropolitan Life Ins. Co. v. Rolph (1920), 184 C. 557,
194 P. 1005.
COMMENT
This is what is supposed to occur, generally, it is not. If an individual answers the complaint IN ANY FORM, it places the party before that court to determine the issues, including the special demurrer(s) weighed against the complaint AND the applicability of those demurrers TOGETHER. Hence the court will NOT answer the questions, the opposing party(ies) will NOT answer the questions or correct the complaint. The court considers this as a waiver to it's jurisdiction [any jurisdiction it chooses] AND to the action before the court.
END COMMENT
"Averments in the answer will not be considered when passing
upon the demurrer to the complaint."
Monsch v. Pellissier (1922), 187 C. 790, 204 P.
224.
NOTE
Most common-law remedy citations date from before Erie Railroad Co. v Tompkins case, 304 US 64, instituting Uniform Commercial Code as the controlling aspect. However, the constitutions demand 'common-law' remedies, and deny destroying 'obligation of contracts'. Both state and national constitutions ARE contracts between the People, therefore, UCC can only effect those engaged in commercial activities, and only WHILE ENGAGED in those commercial activities, not the private life or existance of the individual.
Complaint
Jurisdictional Facts
"In a court of limited and special jurisdiction every fact
essential to confer the jurisdiction must be alleged; but in
courts of general jurisdiction the cause of action only need be
stated."
Doll v. Feller (1860), 16 C. 432; Schwartz, Inc. v.
Burnett Pharmacy (1931), 112 C.A. Supp. 781, 295 P.
508.
"Since the superior court is presumed to have jurisdiction
over a particular cause, it is not necessary to plead
affirmatively the facts showing jurisdiction but lack of
jurisdiction must be affirmatively shown."
Cheney v. Trauzettel (1937) 9 C.2d 158, 69 P.2d 382,
distinguished and followed in Altman v. McCollum (1951), 107
C.A.2d Supp. 847, 236 P.2d 914; explained in Seidell v.
Anglo-California Trust Co. (1942), 55 C.A.2d 913, 132 P.2d 12;
followed in Higgins v. Coyne (1946), 75 C.A.2d 69, 170 P.2d
25.
"It is essential to jurisdiction that there be some proper
application invoking judicial power of court in respect to
matters sought to be litigated."
Associated Oil Co. v. Mullin (1930), 294 P. 421, 110 C.A.
385.
COMMENT
From the above, we see the actual NEED to proceed carefully before any court. If one FAILS to address the issues of lack of jurisdiction, misnomered parties, and other aspects; one grants jurisdiction AND waives the ability to appeal those issues.
END COMMENT
Particular Averments
"One may not by the mere device of an allegation in a pleading
create a legal duty that otherwise does not exist."
Pascoe v. Southern California Edison Co. (1951), 102
C.A.2d 254, 227 P.2d 555.
"A party who brings himself within an exception to a general
rule must state facts which take his case out of the general rule
and within the exception."
Senter v. Davis (1869), 38 C. 450; San Francisco Savings
Union v. Reclamation District No. 124 (1904), 144 C. 639, 79 P.
374; Bird v. Utica Gold Mtn. Co. (1906), 2 C.A. 674, 677, 84 P.
256.
"One may not by the mere device of an allegation in a pleading
create a legal duty that otherwise does not exist."
Pascoe v. Southern California Edison Co. (1951), 102
C.A.2d 254, 227 P.2d 555.
Performance of Conditions in Contract Actions
"In action for specific performance of contract it must be
made to appear by affirmative allegations that consideration for
contract was adequate and it is insufficient merely to state
legal conclusions of such adequacy."
Boro v. Ruzich (1943), 58 C.A.2d 535, 137 P.2d
51.
"A pleader is bound by the interpretation of a contract
adopted by him and set forth in his pleading."
Tennant v. Wilde (1929), 98 C.A. 437, 277 P.
137.
"The pleader is bound by the interpretation adopted by him and
set forth in his pleading."
White v. San Diego (1932), 126 C.A. 501, 14 P.2d
1062.
"Performance of condition precedent upon which recovery
depends must be alleged."
Eddy v. Hickman (1934), 136 C.A. 103, 28 P.2d 66;
Mitchell v. Green (1931), 110 C.A. 259, 293 P 879.
"In equitable action, performance or willingness to perform
must be alleged."
Holstrom v. Mullen (1927), 84 C.A. 1, 257 P.
545.
"Where a nonperformance of a duty imposed by statute is relied
upon as the gravaman of the action, the conditions in view of
which the duty is to be performed, must be alleged."
Fontaine v. Southern Pacific Co. (1880), 54 C.
645.
"Facts, not mere conclusions, should be alleged to establish
right to specific performance of contract."
Foley v. Cowan (1947), 80 C.A.2d 70, 181 P.2d
410.
"A count in a complaint which does not allege any assignment
or transfer to the plaintiff of the property or rights of action
of the person whose claims to a right of action against the
defendants are set forth in such count, is insufficient."
Lapique v. Denis (1914), 23 C.A. 683, 139 P.
237.
"The complaint, on its face, must show that the plaintiff has
the better right."
Rogers v. Shannon (1877), 52 C. 99.
Complaint based on statute
"[If a declaration on a contract action is founded on a
statute], the act or offense must be shown to be within its
provisions, and the defendant excluded from the operation of any
exception in its enacting clause. An exception in the body of the
act is a matter of defense only."
Shipman's Common Law Pleading (1923), p.
264.
"When a pleader wishes to avail himself of a statutory
privilege, or right given by particular facts, he must show the
facts; those facts which the statute requires as the foundation
of the right must be stated in the complaint."
Dye v. Dye (1858), 11 C. 163.
"Where a right is given to a particular class of individuals
the pleadings in these special cases should show that the persons
who seek to avail themselves of the special privileges are within
the class thus privileged."
Lee Doon v. Tesh (1885), 68 C. 43, 6 P. 97, 8 P.
621.
"Where a pleader wishes to avail himself of a statutory
privilege or right given by particular privilege or right by
particular facts, he must state in his complaint the facts upon
which the right is founded."
San Luis Obispo County v. Hendricks (1886), 71 C. 242, 11
P. 682.
"When any qualification or exception is stated in the enacting
clause of a statute, the declaration or plea founded upon it must
allege the facts which are necessary to bring the case within the
qualification, or to exclude it from the exception."
San Francisco Savings Union v. Reclamation District No.
124 (1924), 144 C. 639, 79 P. 374.
"When reliance is had upon a right or status created by
statute the pleader must state all the facts necessary to bring
the case within the statute."
Nielson v. Gross (1911), 17 C.A. 74, 118 P.
725.
"In statutory actions the party suing must bring himself
strictly within the statutory requirements necessary to confer
the right, and this must appear in the complaint."
McLain v. Llewellyn Iron Works (1922), 56 C.A. 60, 204 P.
869.
"Where an action is founded on a statutory right or a right
deducible wholly from statute, the plaintiff must, by his
complaint, bring himself squarely and clearly within the terms or
provisions of the statute upon which he relies or must rely to
state a cause of action."
Bailey Trading Co. v. Levy (1925), 72 C.A. 339, 237 P.
408.
"Where a right is purely statutory and is granted upon
conditions, one who seeks to enforce the right must by allegation
and proof clearly bring himself within the conditions."
Johnson v. Glendale (1936), 12 C.A.2d 389, 55 P.2d 580,
distinguished in Shea v. San Bernardino (1936), 7 C.2d 688, 62
P.2d 365; followed in Wicklund v. Plymouth Elementary School
District (1940), 37 C.A.2d 252, 99 P.2d 314; questioned in
Farrell v. Placer County (1944), 23 C.2d 624, 145 P.2d 570, 153
A.L.R. 323, Schulstad v. San Francisco (1946), 74 C.A.2d 105, 168
P.2d 68.
"If plaintiff seeks to fasten liability upon defendant through
medium of a particular statute, he must allege sufficient facts
to bring defendant within scope of that statute and unless he
does so defendant is not called upon to plead facts to take him
out of operation of statute."
Watts v. Currie (1940), 38 C.A.2d 615, 101 P.2d
764.
"In a statutory action a compliance with all the provisions
conferring the right must be alleged."
Paden v. Goldbaum (1894), 4 C.U. 767, 37 P.2d
759.
"When a pleader wishes to avail himself of a statutory
privilege or right given by particular facts he must show the
facts."
Renton Estate (1892), 3 Cof. 519.
"A person pleading a right derived from a statute or a
statutory privilege must allege the facts which the statute
requires as the foundation of his right."
Renton Estate (1892), 3 Cof. 519.
In General
Facts constituting cause of action - necessity to state clearly, concisely, completely
"Every fact which, if controverted, plaintiff must prove to
maintain his action must be stated in the complaint."
Jerome v. Stebbins (1859), 14 C. 457; Green v. Palmer
(1860), 15 C. 411, 76 Am. Sec. 492; Johnson v. Santa Clara County
(1865), 28 C. 545.
"The complaint, on its face, must show that the plaintiff has
the better right."
Rogers v. Shannon (1877), 52 C. 99.
"Complaint, to be sufficient, must contain a statement of
facts which, without the aid of other facts not stated shows a
complete cause of action."
Going v. Didwiddle (1890), 86 C. 633, 25 P.
129.
"Pleadings should set forth facts, and not merely the opinions
of parties."
Snow v. Halstead (1851), 1 C. 359.
"A complaint must contain a statement of facts showing the
jurisdiction of the court, ownership of a right by plaintiff,
violation of that right by the defendant, injury resulting to
plaintiff by such violation, justification for equitable relief
where that is sought, and a demand for relief."
Pierce v. Wagner, 134 F.2d. 958.
"Essential facts on which legal points in controversy depend,
should be pleaded clearly and precisely, so that nothing is left
for court to surmise."
Gates v. Lane (1872), 44 C. 392.
"The test of the materiality of an averment in a pleading is
this: Could the averment be stricken from the pleading without
leaving it insufficient?"
Whitwell v. Thomas (1858), 9 C. 499.
"In pleading, the essential facts on which a determination of
the controversy depends should be stated with clearness and
precision so that nothing is left to surmise."
Bernstein v. Fuller (1950), 98 C.A.2d 441, 220 P.2d
558.
"The "facts" which the court is to find and the "facts" which
a pleader is to state lie in the same plane - that is, in both
connections, "facts" are to be stated according to their legal
effect."
Hihn v. Peck (1866), 30 C. 280.
"A plaintiff must set forth in his complaint the essential
facts of his case with reasonable precision and with sufficient
clarity and particularity that defendant may be apprised of
nature, source and extent of his cause of action."
Metzenbaum v. Metzenbaum (1948), 86 C.A.2d 750, 195 P.2d
492.
"In general, matters of substance must be alleged in direct
terms, and not by way of recital or reference."
Silvers v. Grossman (1920), 183 C. 693, 192 P. 534; Reid
v. Kerr (1923), 64 C.A. 117, 220 P. 688.
"A fact which constitutes an essential element of a cause of
action cannot be left to inference."
Roberts v. Roberts, 81 C.A.2d 871, 185 P.2d
381.
"Material facts must be alleged directly and not by way of
recital."
Vilardo v. Sacramento County (1942), 54 C.A.2d 413, 129
P.2d 165.
"Material allegations must be distinctly stated in
complaint."
Goland v. Peter Nolan & Co. (1934), 33 P.2d 688,
subsequent opinion 38 P.2d 783, 2 C.2d 96.
"Matters of substance must be presented by direct averment and
not by way of recital."
Stefani v. Southern Pacific Co. (1932), 119 C.A. 69, 5
P.2d 946.
"A pleading which leaves essential facts to inference or
argument is bad."
Ahlers. v. Smiley (1909), 11 C.A.343, 104 P.
997.
"The forms alone of the several actions have been abolished by
the statute. The substantial allegations of the complaint in a
given case must be the same under our practice act as at common
law."
Miller v. Van Tassel (1864), 24 C. 459.
"A pleading cannot be aided by reason of facts not
averred."
San Diego County v. Utt (1916), 173 C. 554, 160 P.
657.
"Facts necessary to a cause of action but not alleged must be
taken as having no existence."
Frace v. Long Beach City High School Dist. (1943), 137
P.2d 60, 58 C.A.2d 566.
"A fact necessary to pleader's cause of action, if not
pleaded, must be taken as having no existence."
Feldesman v. McGovern (1941), 44 C.A.2d 566.
"When pleading is silent as to material dates, or does not
clearly state facts relied on, it must be presumed that statement
thereof would weaken pleader's case."
Whittemore v. Davis (1931), 112 C.A. 702, 297 P.
640.
"Material matters in pleadings must be distinctly stated in
ordinary and concise language."
Brown v. Sweet (1928), 95 C.A. 117, 272 P.
614.
"Facts contained in public records should be alleged in
pleading when they constitute necessary elements of good cause of
action."
Gray v. White (1935), 5 C.A.2d 463, 43 P.2d
318.
"When facts are available from public records, it is
ordinarily improper to allege such facts on mere information and
belief."
People v. Birch Securities Co. (1948), 196 P.2d 143, 86
C.A.2d 703, cert. denied Birch Securities Co. v. People of State
of California, 69 S.Ct. 745, 336 U.S. 936, 93 L.Ed.
1095.
Conclusions
"A mere conclusion of a pleader cannot be availed of to
initiate and invite an issue of fact."
Hatfield v. Peoples Water Co. (1914), 25 C.A. 711, 145 P.
164.
"One may not by the mere device of an allegation in a pleading
create a legal duty that otherwise does not exist."
Pascoe v. Southern California Edison Co. (1951), 102
C.A.2d 254, 227 P.2d 555.
"Allegations of legal conclusions cannot be permitted to
supply essential allegations of fact."
Bailes v. Keck (1927), 200 C. 697, 254 P. 573, 51 A.L.R.
930.
"Pleadings should allege facts, and not mere conclusions of
law."
Bailes v. Keck (1927), 200 C. 697, 254 P. 573, 51 A.L.R.
930.
"A pleading must allege facts and not conclusions, and
conclusions of law are not admitted by demurrer."
Vilardo v. Sacramento County (1942), 54 C.A.2d 413, 129
P.2d 165.
"Facts, not mere conclusions, should be alleged to establish
right to specific performance of contract."
Foley v. Cowan (1947), 80 C.A.2d 70, 181 P.2d
410.
"Allegation of conclusion of law tenders no issue."
California Western Holding Co. v. Merrill (1935), 7
C.A.2d 131, 46 P.2d 175.
"Conclusions of law in a pleading are disregarded."
Koehler v. Coronado (1927), 83 C.A. 648, 257 P.
187.