Shareware Overload Trio 2/Shareware Overload Trio Volume 2 (Chestnut CD-ROM).ISO/dir33/1761_r.zip/CHAPTER.11

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                            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.

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.


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 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
statuted 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

     "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.