SLM Private Credit Student Loan Trust vs. Omar T. Mercer
Nature of Proceeding:
Filed By:
Hearing on Demurrer
Mercer, Eric Andrew

Defendant Mary Jane Mercer’s demurrer to the second cause of action in Plaintiff SLM Private Credit Student Loan Trust’s complaint is sustained with leave to amend. Defendant demurs to the second cause of action for breach of contract on the basis that Plaintiff failed to attach a copy of the subject contract or allege the terms of the alleged contract. With respect to a breach of contract cause of action, “the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Otworth v. S. Pac. Transp. Co.(1985) 166 Cal.App.3d 452, 459.) Here, Plaintiff does not attach the contract and alleges, in conclusory terms, that it “extended into a written agreement with defendant(s), whereby credit would be extended by plaintiff to defendant(s), services rendered, goods and services would be provided, and/or money would be extended at defendant’s request.” (Comp. ¶ 4.)

Plaintiff’s opposition argues that it set forth the terms of the contract, but does not argue that it has set forth the terms “verbatim in the body of the complaint” which from the above, it is evident that has yet to do so. As is noted, supra, to state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect. (Twaite v. Allstate Ins. Co., (1989) 216 Cal. App. 3d 239, 252.)

Further, the arguments related to the adequacy of the common counts allegations are irrelevant as Defendant did not demur to those causes of action. As a result, the demurrer to the second cause of action for breach of contract is sustained with leave to amend.

Plaintiff may file and serve an amended complaint no later than February 3, 2014. Defendant shall file and serve her response within 10 days thereafter, 15 days if the amended complaint is served by mail. (Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the amended complaint to facilitate the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.