Legal Question in Business Law in California

I'm in a procedural catch 22 - Please help !

Synopsis: In a Breach of Contract - I want to establish that formation occured within a initial verbal contract. If this is striken, I want to discredit elements of the ''written contract'' which I did not consent to, and which my opponent mailed to me AFTER services were rendered (nothing was ever signed).

Problem: If my 1st cause of action is to claim breach of the verbal contract, and my 2nd cause is ''Statutory violation'' of the written agreement, my 2nd cause infers that IT not the verbal was the valid agreement, but if I don't include it, and my 1st cause is striken, I risk loosing on a summary judgement because my entire case is based on formation of a verbal contract. Can I leave the 2nd cause out and use it in case the 1st is striken then exercise a �request for leave to amend� to base my case on the 2nd cause ?


Asked on 12/05/04, 12:45 pm

3 Answers from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: I'm in a procedural catch 22 - Please help !

Nothing ever signed? That pretty well discredits the supposed written contract. A judge won't necessarily disregard an unsigned paper, but it will be of weak evidentiary value, if at all.

My guess is that any pleading you file should disclose all the facts and state causes of action based upon all possible theories. Pleading inconsistent theories is rather well accepted in California, up to a point.

You have used a bunch of technical legal terms in your question in ways that, forgive me please, show that you don't understand them nor do you understand law well enough to prepare and present your own case. Get a lawyer before your case is decided against you without leave to amend.

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Answered on 12/06/04, 12:50 am
Edward Hoffman Law Offices of Edward A. Hoffman

Re: I'm in a procedural catch 22 - Please help !

You can plead two inconsistent causes of action in the alternative. Explain in the second claim that you do not believe the written contract is valid but that, even if the court disagrees, you are still entitled to relief because the defendant violated the written agreement as well.

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Answered on 12/05/04, 5:26 pm
Michael Olden Law Offices of Michael A. Olden

Re: I'm in a procedural catch 22 - Please help !

Unless you are an attorney, and if you are you should let us know that in your question as it is unethical to use this site for advice between councils, it is my opinion that you do not have the requisite expertise, education, experience, or history to pull off any kind of lawsuit. Without knowing the facts you probably have missed numerous causes of action in the filing of your complaint and you may have waived those causes of action by not including them. Each set of facts contains claims all of which are different from each other based upon the same factual situation. My advice to you is higher, yes, pay an attorney who has expertise in business litigation applicable to the kind of litigation in which you were involved. It will probably pay you more in the outcome. Your question is far too complicated without sufficient facts to answer in any manner. If you wish to consult with me,I have been practicing law in the San Francisco Bay area for approximately 35 years and expert in the area in the category in which your question is placed. I feel I can help you in this matter and if you wish to consult with me please contact me at 925-945- 6000.

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Answered on 12/05/04, 6:40 pm


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