Clarification of Answer by
justaskscott-ga
on
23 Oct 2003 11:09 PDT
The resource I have cited contains an unusual amount of information
for a legal resource on the Web. It is more like a legal treatise
that you can usually only find in a library, than like a Web document.
So, while you have the right to reject my answer, I would not reject
it too quickly. You also have the right to seek clarification of the
answer, and I will try to provide that for you. If you remain
unsatisfied, you may contact the editors to ask for a refund. See the
following Google Answers documents:
"Google Answers FAQ - Answers to Your Questions"
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http://answers.google.com/answers/faq.html#aboutanswers
"Answers Help and Tips: What you can do once your question is asked"
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http://answers.google.com/answers/help.html#followup
You have made a reasonable point: defenses may not be the same thing
as dismissal. However, the source I have provided indicates that the
defenses, if successful, will cause dismissal or entry of judgment
against the person asserting the specific performance claim. If you
are referring specifically to dismissal for failure to state a cause
of action, where defendant does not need to provide evidence against
the claim, this material addresses that possibility.
In particular, the material suggests that a plaintiff's complaint is
subject to a "demurrer" (or a "general demurrer") as to at least three
of the defenses. A dictionary definition of "demurrer" and "general
demurrer" indicates that it is a challenge to the sufficiency of the
allegation, and that it is the equivalent of what the federal rules
call a motion to dismiss.
"Legal Dictionary - demurrer"
FindLaw
http://dictionary.lp.findlaw.com/scripts/results.pl?co=dictionary.lp.findlaw.com&topic=b6/b68dd160d3c7f58416c40553e6bac133
Here are the key phrases that I have found in each section on
defenses:
§ 33:20 Inadequacy of consideration: "Although inadequacy of
consideration may be raised as a defense, the requirement is
considered an element of the cause of action, and must be pleaded and
proved by the plaintiff. [Witkin, 11 Summary (9th), Equity, §48]"
§ 33:21 Contract unjust, unreasonable, or unconscionable: "The mere
allegation that an agreement is just and reasonable does not preclude
an examination of the terms of the agreements pleaded, and it may be
overcome if the agreement, as a matter of law, is unjust or
unreasonable. On the other hand, unless the court can find from the
facts pleaded, as a matter of law, that the contract is unjust, the
allegations are sufficient against a general demurrer. [Burrow v
Timmsen (1963, 2nd Dist) 223 Cal App 2d 283, 35 Cal Rptr 668, 100
ALR2d 544]"
[In other words, this seems to imply that if the court "can find from
the facts pleaded, as a matter of law, that the contract is unjust",
then the allegations are not sufficient against a general demurrer.]
§ 33:26 Laches: "Because prejudice to the defendant must be
established before specific performance may be barred because of
laches, generally, a motion for summary judgment is required. ... If
the complaint for specific performance discloses laches on its face, a
general demurrer may lie. [Witkin, 5 Cal. Proc. 3d, Pleading, §1047]
Such a defense is, in substance, that the complaint does not show
equity, or fails to state facts sufficient to constitute a cause of
action. [Superior California Fruit Land Co. v Grossman (1916) 32 Cal
App 357, 162 P 1046] However, since the prejudice resulting from the
delay is less obvious, the defense of laches is best established by
answer in order to provide allegations of delay plus prejudice. ...
Counsel for the defendant should be alert to raising the defense by
either demurrer or answer. [Witkin, 5 Cal. Proc. 3d, Pleading, §1047]"
[See also § 33:33 as to laches.]
The other sections (§ 33:22 - 33.25) do not contain material on
demurrer. It is possible, therefore, that the defenses are not
appropriate for demurrer and, instead, must be proven. For a
comparison of "general demurrer" and "motion for judgment on the
pleadings" with "motion for summary judgment" (which apparently may
involve supporting evidence), see the introductory sections,
especially § 21:4, of:
"Chapter 21 - Summary Judgment"
Los Angeles Mission College Law Department
http://www.vcsun.org/~djordan/sumjud.htm
Another possibility for a demurrer is indicated here:
§ 33:11 Action by buyer: "... the party seeking specific performance
is not relieved from pleading damages and stating a cause for
equitable relief. [Superior California Fruit Land Co. v Grossman
(1916) 32 Cal App 357, 162 P 1046 (plaintiff's demurrer to defendants'
cross complaint for specific performance sustained) ...."
Finally, you might want to take note of the pleading requirements
listed here:
"Pleading essential requirements: Specific performance will be granted
only when the legal remedy is inadequate. [See Morrison v Land (1915)
169 Cal 580, 147 P 259 (specific performance of contract to will sum
of money); see also, Witkin, 11 Summary (9th), Equity, §§21 et seq.]
Plaintiff should further establish in the pleadings that there was
adequate consideration for the contract at the time of formation [CC §
3391(1); Porporato v Devincenzi (1968, 1st Dist) 261 Cal App 2d 670,
68 Cal Rptr 210], that the contract was just and reasonable as to the
defendant [CC §3391(2)], and that plaintiff has fully and fairly
performed all conditions precedent on his or her part [CC §3392; for
full discussion of essential requirements, see §33:4]."
Presumably, the absence of any of these pleading requirements can be
challenged by demurrer; and presumably, the cause of action would be
dismissed if it fails to meet these requirements.
I hope that this material meets your needs. Again, I should emphasize
that Google Answers Researchers are not lawyers, and cannot provide
expert legal advice. I have found substantial material that discusses
defenses and how they can be used to dismiss or otherwise defeat a
claim for specific performance. If you need to pursue this issue,
hopefully this material will help you to discuss it with a lawyer, or
at least to do some research in the law library if you do not intend
to consult a lawyer.
