Breach of Contract Defense Interrogatories

Defendant to plaintiff: mistake, fraud, duress, undue influence, unconscionability, statute of frauds, illegality, impossibility of performance, frustration of purpose, accord and satisfaction, and novation.

by Kevin R. Culhane

Excerpted from Model Interrogatories

As set forth in §26100, there are a variety of defenses available to defendants in contract cases. The traditional formulation of these defenses is that some defenses go to formation, i.e., the presence of the facts that give rise to the defense negate the existence of mutual assent. Other defenses go to enforceability, i.e., a contract is formed but is unenforceable under the law due to an extraneous circumstance such as unconscionability or illegality. The foregoing formulation is only partly useful, however, because even defenses that go to mutual assent do not always negate the existence of a contract, i.e., some defenses bearing on mutual assent merely render the contract voidable. The sections that follow address the typical contract defenses from the perspective of the defendant.

§26121 Mistake

As set forth in §26101, a variety of defenses exist based on the existence of mistake in the contracting process. In general, the legal consequences that flow from the existence of mistake vary depending on whether the mistake is unilateral or mutual, as well as whether the mistake is one of fact or law. Many of these recurring issues are discussed in the sections that follow.

§26121.1         Unilateral Mistake Precipitated by Opposing Party

It has often been observed that “if the language used by the parties is ambiguous and one party knows this and fails to explain it, mistake of the innocent party is probably a result of the other party’s fault and relief is proper.” (See Witkin, Summary of California Law (10th ed.) Contracts §257 at 285.) The key question here is whether the language selected is ambiguous, because if there is no ambiguity the existence of unilateral mistake is inconsequential under the objective theory of contracts. (Id.) The interrogatories set forth in this section explore plaintiff’s contentions regarding: (1) the existence of an ambiguity; and, (2) plaintiff’s knowledge of the ambiguity at the time of contract formation.

1. Do YOU contend that [here identify contested provision of contract, etc.] is not ambiguous?

2. If your answer to interrogatory number 1 was yes, please set forth your understanding of [here identify contested provision of contract, etc.].

3. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

5. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

6. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 5.

7. Do YOU contend that [defendant] knew that [here identify contested provision of contract, etc.] was ambiguous at the time that the contract was executed?

8. If your answer to interrogatory number 7 was yes, please state each fact upon which YOU base such contention.

9. If your answer to interrogatory number 7 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

10. If your answer to interrogatory number 7 was yes, please IDENTIFY each WRITING relating to such contention.

11. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 10.

12. Do YOU contend that [defendant] failed to explain the meaning of [here identify contested provision of contract, etc.] at the time that the contract was executed?

13. If your answer to interrogatory number 12 was yes, please state each fact upon which YOU base such contention.

14. If your answer to interrogatory number 12 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

15. If your answer to interrogatory number 12 was yes, please IDENTIFY each WRITING relating to such contention.

16. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 15.

§26121.2         Mutual Mistake – Neither or Both Parties at Fault

As set forth in §26101.2, if a mistake exists on both sides of the contract such that any fault should be equally apportioned between the contracting parties, the mistake may infect the contracting process and prevent formation. (See CACI 331; Witkin, Summary of California Law (10th ed.) Contracts, §258 at 287.) The interrogatories set forth in this section explore plaintiff’s contentions when defendant claims that a mutual mistake of fact precludes formation.

1. Do YOU contend that at the time the contract was executed the parties did not operate under a mutual mistake of fact?

2. If your answer to interrogatory number 1 was yes, please set forth your understanding of [here describe the matter as to which defendant contends the parties were mistaken].

3. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

5. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

6. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 5.

7. Do YOU contend that [defendant] was at fault with respect to his/her belief that [here describe mistake of fact asserted by defendant]?

8. If your answer to interrogatory number 7 was yes, please state each fact upon which YOU base such contention.

9. If your answer to interrogatory number 7 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

10. If your answer to interrogatory number 7 was yes, please IDENTIFY each WRITING relating to such contention.

11. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 10.

12. Do YOU contend that [plaintiff] did not engage in any act which contributed to [defendant’s] belief that [here describe mistake of fact asserted by defendant]?

13. If your answer to interrogatory number 12 was yes, please state each fact upon which YOU base such contention.

14. If your answer to interrogatory number 12 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

15. If your answer to interrogatory number 12 was yes, please IDENTIFY each WRITING relating to such contention.

16. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 15.

§26121.3         Mistake Not Going to an Essential Element of the Contract

As set forth in §26101.3, in some cases there is mutual assent as to all of the essential elements of the contract such as parties, subject matter, time for performance and price. At the same time, the parties may be mistaken in the sense that they engage in mutual belief in the existence of a fact relating to the contract. The fact as to which the parties are mistaken must affect one of the essential elements of the contract so that it appears that the complaining party would not have entered into the agreement except for the mistaken belief. (California Civil Code §1568.) Because the mistake does not negate one of the essential elements, the contract is not void but is merely voidable. (Restatement 2d, Contracts §158.) An example of this type of mistake is found in Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, in which language extending the effects of a release to third parties was ambiguous and both parties were mistaken in including the offending language. (Id. at 523.) The interrogatories set forth in this section explore plaintiff’s contentions regarding the existence of a mutual mistake where plaintiff claims a right to rescind, as well as plaintiff’s contentions where defendant asserts that the mistake goes only to a collateral matter.

1. Do YOU contend that at the time the contract was executed the parties believed that [here identify fact affecting a basic element of the contract]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here identify fact as to which the parties were allegedly mistaken] affected a basic element of the contract?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that the parties belief that [here identify fact as to which the parties were allegedly mistaken] did not constitute a mistake as to a collateral matter?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

§26121.4         Unilateral Mistake of Fact

As set forth in §26101.4, the traditional approach has been that unilateral mistake of fact does not render a contract voidable unless the opposing party was at fault in causing the mistake. Nevertheless, unilateral mistake may constitute a defense where the enforcement of the contract would be unconscionable. (Restatement 2d, Contracts §153.) This rule was adopted in California in Donovan v. RRL Corporation, (2001) 26 Cal.4th 261. According to Donovan, the elements that must coalesce to invoke this rule are (1) the aggrieved party made a mistake regarding a basic assumption upon which the contract was made; (2) the mistake has a material effect upon the agreed exchange or performance that is adverse to the aggrieved party; (3) the aggrieved party does not bear the risk of the mistake; and (4) the effect of the mistake is such that enforcement of contract would be unconscionable. The interrogatories set forth in this section explore the plaintiff’s contentions regarding these elements where defendant contends that his unilateral mistake renders enforcement of the contract unconscionable.

1. Do YOU contend that at the time the contract was executed the [defendant] did not operate under a mistake of fact?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here identify mistake asserted by defendant] did not pertain to a basic assumption upon which [defendant] entered into the contract?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that [here identify mistake asserted by defendant] did not have a material effect upon the parties’ obligations under the contract?

12. If your answer to interrogatory number 11 was yes, please set forth the manner [here identify mistake asserted by defendant] affected the parties’ obligations under the contract.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

16. Do YOU contend that enforcement of the contract would not be unconscionable given [here identify mistake asserted by defendant]?

17. If your answer to interrogatory number 16 was yes, please state each fact upon which YOU base such contention.

18. If your answer to interrogatory number 16 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

19. If your answer to interrogatory number 16 was yes, please IDENTIFY each WRITING relating to such contention.

20. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 19.

§26121.5         Mutual Mistake of Law

As set forth in §26101.5, a party may be relieved of his or her contractual obligations if the party can demonstrate that both parties to the agreement operated under a mutual mistake of law. Some typical examples of cases in which relief has been afforded are set forth in Witkin, Summary of California Law (10th ed.) Contracts, §273 at 304, e.g., a mutual mistake as to which statute governed the right to redeem property sold at foreclosure. (Benson v. Bunting (1900) 127 Cal. 532.) The interrogatories set forth in this section explore plaintiff’s contentions where defendant asserts that the contract was entered into under a mutual mistake of law.

1. Do YOU contend that at the time that the contract was executed the parties did not operate under a mutual mistake of law?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

§26121.6         Unilateral Mistake of Law

As set forth in §26121.1, California Civil Code §1578 provides that relief for a unilateral mistake of law is available only under circumstances where the opposing party knows of and takes advantage of the mistake. In such cases, the interrogatories in §26121.1 would be fully applicable.

§26122 Fraud

As set forth in §26102, the presence of fraud raises a defense to formation that can render a contract void. (See California Civil Code §1572.) The ordinary elements of fraud include (1) a false misrepresentation of a material fact; (2) made with knowledge of its falsity; (3) with intent to induce reliance; and (4) actual reliance upon the misrepresentation. The interrogatories set forth in the sections that follow explore these elements from the defendant’s perspective.

§26122.1         Misrepresentation of Fact

As set forth in §26102.1, fraud requires the misrepresentation of a fact that is not true by one who does not believe it to be true. (Civil Code §1572(1).) The interrogatories set forth in this section explore the plaintiff’s contentions where defendant asserts that he or she entered into the contract as a result of a misrepresentation of a material fact by the plaintiff.

1. Do YOU contend that YOU did not represent to [defendant] that [here describe alleged misrepresentation]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Please state whether YOU conducted any investigation to determine whether [here describe alleged misrepresentation] was a true statement.

7. If your answer to interrogatory number 6 was yes, please describe the investigation undertaken by YOU.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who participated in such investigation.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such investigation.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26122.2         Knowledge of Falsity

As set forth in §26102.2, the misrepresentation must be made with knowledge of the false character of the fact stated. (See Wolfe v. Severns (1930) 109 Cal.App. 476.) The interrogatories set forth in this section explore the plaintiff’s contention that the plaintiff did not know of the falsity of the representation at the time the representation was made, or that conversely, defendant was also aware of such falsity.

1. Do YOU contend that at the time that YOU stated [here describe alleged misrepresentation], YOU did not know that such statement was false?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that at the time YOU stated [here describe alleged misrepresentation], [defendant] knew that such statement was false?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26122.3         Intent to Induce Reliance

As set forth in §26102.3, the third element requires that the misrepresentation be made with the intent to induce the person to whom it is made to act upon it. (Wolfe v. Severns, supra, 109 Cal.App. 476.) The interrogatories set forth in this section are for use where defendant contends that plaintiff made the representation with the intent to induce reliance thereon.

1. Do YOU contend that, at the time YOU stated that [here describe the alleged misrepresentation] YOU did not intend that [defendant] rely upon such [alleged misrepresentation]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

§26122.4         Reliance

The final element requires that the defendant in fact act in justifiable reliance upon the representation. (Wolfe v. Severns, supra, 109 Cal.App. 476.) The interrogatories set forth in this section explore the plaintiff’s contention that defendant did not enter into the agreement in reliance upon the alleged representation.

§26122.4.1         Actual Reliance

As set forth in §26102.4.1, the actual reliance element requires a demonstration that in reliance upon the alleged misrepresentation, defendant entered into the contract. Conversely, if the defendant entered into the contract based upon events other than the misrepresentation, or without respect to the misrepresentation, the defense fails. The interrogatories that follow explore the plaintiff’s contentions regarding the actual reliance element.

1. Do YOU contend that [defendant] did not rely upon the [alleged misrepresentation] in entering into the contract?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [defendant] entered into the agreement for any reason other than [here describe the alleged misrepresentation]?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26122.4.2         Justifiable Reliance

As set forth in §26102.4.2, defendant must not only actually rely upon the alleged misrepresentation; such reliance must also be justifiable under the circumstances. Accordingly, where defendant asserts the defense of misrepresentation, the plaintiff may seek to establish that the defendant was in possession of sufficient contradictory facts that any actual reliance was not justifiable. The interrogatories set forth in this section explore plaintiff’s contentions on the “justifiable reliance” issue.

1. Do YOU contend that [defendant’s] reliance upon your statement that [here describe the alleged misrepresentation] was not justified?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that at the time that YOU represented to [defendant] that [here describe the alleged misrepresentation] [defendant] was aware of any fact that indicated such statement was false?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26122.5         Negligent Misrepresentation

As set forth in §26102.5, the assertion of a fact without a reasonable basis to believe in the truth of the fact may also support a fraud defense. (See California Civil Code §1572(2); Restatement 2d, Contracts §159.) The interrogatories set forth in this section are for use where defendant contends that the plaintiff stated the fact in issue without a reasonable basis to believe in the truth of the fact stated.

1. Do YOU contend that, at the time YOU stated to [defendant] that [here describe the alleged misrepresentation] YOU did so with a reasonable belief in the truth of such statement?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that at the time you believed in the truth of [here describe misrepresented fact] that such belief was reasonable?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26122.6         Concealment

As set forth in §26102.6, the concealment of a material fact can give rise to a contract defense in circumstances where a duty of disclosure exists. (California Civil Code §1572.) The interrogatories set forth in this section are for use where defendant contends that plaintiff concealed a material fact when the circumstances warranted disclosure.

1. Do YOU contend that at the time [defendant] entered into the contract YOU took no steps to conceal any fact from [defendant]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that at the time [defendant] entered into the contract YOU were unaware of the fact that [here set forth fact allegedly concealed]?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26122.7         Constructive Fraud

As set forth in §26102.7, some cases hold that where a fiduciary (and sometimes confidential) relationship exists between the parties, the failure of a party to disclose material facts constitutes constructive fraud under Civil Code §1573. (See Witkin, Summary of California Law (10th ed.) Contracts, §295 at 321.) The interrogatories set forth in this section are for use where defendant asserts (1) the existence of a fiduciary or confidential relationship; and (2) the non-disclosure of material facts by plaintiff.

1. Do YOU contend that at the time [defendant] entered into the contract YOU did not stand in any fiduciary relationship to [defendant]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that at the time [defendant] entered into the contract YOU did not stand in any confidential relationship to [defendant]?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that at the time [defendant] entered into the contract YOU disclosed all material facts to [defendant]?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

16. Do YOU contend that at the time [defendant] entered into the contract YOU took no steps to conceal any material fact from [defendant]?

17. If your answer to interrogatory number 16 was yes, please state each fact upon which YOU base such contention.

18. If your answer to interrogatory number 16 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

19. If your answer to interrogatory number 16 was yes, please IDENTIFY each WRITING relating to such contention.

20. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 19.

§26123  Duress

As set forth in §26103, the law recognizes that contracts made under certain types of duress are not enforceable. Duress may be directed against a person, as in cases where a person is compelled through physical force to enter into an agreement, or against property, as in cases involving unlawful detention of property. Moreover, the law recognizes that a contract may be procured through menace, consisting of the unlawful threat of duress. (See California Civil Code §§1569 and 1570.) The interrogatories set forth in this section explore plaintiff’s contentions where duress is asserted as a defense.

§26123.1  Physical Duress

As noted above, a contract entered into under circumstances revealing that the person acted under physical compulsion in entering into an agreement is void. (See Restatement 2d, Contracts §174.) The interrogatories set forth in this section are for use where defendant asserts that the contract was entered into under physical duress.

1. Do YOU contend that [defendant] was not physically compelled to enter into the contract?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [defendant] would have entered into the contract in the absence of [here describe acts allegedly constituting physical compulsion]?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26123.2         Duress of Property

As set forth in §26103.2, the law recognizes a defense where a defendant is compelled to enter into a contract as a result of the unlawful detention of his/her property. (See California Civil Code §1569(2).) The interrogatories set forth in this section are for use where defendant asserts that the contract was entered into under this form of duress.

1. Do YOU contend that at the time [defendant] entered into the contract no property owned by [defendant] was unlawfully detained by YOU?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [defendant] would have entered into the contract notwithstanding [here describe acts allegedly constituting unlawful detention]?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26123.3         Menace

As set forth in §26103.3, the California Civil Code defines menace to involve a (1) threat of unlawful or fraudulent confinement; (2) threat of unlawful and violent injury; and (3) threat of injury to the character of a person. (See California Civil Code §1570.) The interrogatories set forth in this section explore plaintiff’s contentions regarding the existence of “menace” as a defense to the plaintiff’s claim.

1. Do YOU contend that at the time [defendant] entered into the contract YOU had not threatened to confine [defendant] if he/she did not do so?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [defendant] would have entered into the contract notwithstanding [here describe alleged threat of confinement]?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9

11. Do YOU contend that at the time [defendant] entered into the contract YOU had not threatened to inflict bodily injury upon [defendant] if he/she did not do so?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

16. Do YOU contend that [defendant] would have entered into the contract notwithstanding [here describe alleged threat of injury]?

17. If your answer to interrogatory number 16 was yes, please state each fact upon which YOU base such contention.

18. If your answer to interrogatory number 16 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

19. If your answer to interrogatory number 16 was yes, please IDENTIFY each WRITING relating to such contention.

20. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 19.

§26124 Undue Influence

As set forth in §26104, undue influence involves action by one in whom confidence is reposed to obtain an unfair advantage over the other. Undue influence includes taking unfair advantage of another’s weakness of mind or taking unfair advantage of another’s needs or distress. The factors that are material to the determination of whether undue influence has been exercised include (1) the unfairness of the resulting bargain; (2) the availability of independent advice; and (3) the susceptibility of person importuned. (Restatement 2d, Contracts §177.) The interrogatories set forth in the sections that follow explore these issues.

§26124.1         Unfair Persuasion

As set forth in §26104.1, the existence of undue influence generally results in taking advantage of a confidential relationship or position of superiority to engage in unfair persuasion. The interrogatories set forth in this section are for use where defendant asserts that the contract was procured through the exercise of undue influence.

1. Do YOU contend that at the time [defendant] entered into the contract YOU did not stand in any fiduciary/confidential relationship to [defendant]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that at the time [defendant] entered into the contract YOU did not use such [fiduciary/confidential] relationship to take unfair advantage of [defendant]?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that at the time [defendant] entered into the contract [defendant] did not suffer from any mental impairment?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

16. Do YOU contend that at the time [defendant] entered into the contract YOU did not utilize such [mental impairment] to take unfair advantage of [defendant]?

17. If your answer to interrogatory number 16 was yes, please state each fact upon which YOU base such contention.

18. If your answer to interrogatory number 16 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

19. If your answer to interrogatory number 16 was yes, please IDENTIFY each WRITING relating to such contention.

20. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 19.

21. Do YOU contend that at the time [defendant] entered into the contract [defendant] did not suffer from any mental distress?

22. If your answer to interrogatory number 21 was yes, please state each fact upon which YOU base such contention.

23. If your answer to interrogatory number 21 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

24. If your answer to interrogatory number 21 was yes, please IDENTIFY each WRITING relating to such contention.

25. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 24.

26. Do YOU contend that at the time [defendant] entered into the contract YOU did not utilize such [mental distress] to take unfair advantage of [defendant]?

27. If your answer to interrogatory number 26 was yes, please state each fact upon which YOU base such contention.

28. If your answer to interrogatory number 26 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

29. If your answer to interrogatory number 26 was yes, please IDENTIFY each WRITING relating to such contention.

30. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 29.

§26124.2         Unfairness of Resulting Bargain

As set forth in §26104.2, any unfairness in the resulting bargain is a factor that bears on the existence of undue influence. The interrogatories set forth in this section are for use where defendant asserts that the resulting bargain is in some manner unfair.

1. Do YOU contend that the contract you entered into with [defendant] is not in any respect unfair?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that the contract you entered into with [defendant] is not in any respect oppressive?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26124.3         Availability of Independent Advice

As set forth in §26104.3, the unavailability of independent advice is a factor to be taken into account to determine whether undue influence was exercised. The interrogatories set forth in this section explore plaintiff’s contentions regarding the availability of independence advice.

1. Do YOU contend that at the time [defendant] entered into the contract [defendant] was able to obtain independent advice regarding the adviseability of entering into the contract?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that YOU took no steps to prevent [defendant] from obtaining independent advice regarding the adviseability of entering into the contract?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26125 Unconscionability

As set forth in §26105, unconscionability may provide a defense to the enforcement of a contract. Although the cases contain a variety of formulations, two elements generally coalesce. These elements are that the contract (1) be a contract of adhesion; and (2) contain some term, etc., that renders the contract unduly oppressive. (Compare Graham v. Scissor-Tail (1981) 28 Cal.3d 807 with A&M Produce v. FMC Corporation (1982) 135 Cal.App.3d 473.) The interrogatories set forth in the sections that follow address these issues.

§26125.1         Adhesion Contract

According to the traditional formulation, an adhesion contract is one drafted by a party with superior bargaining strength and is presented on a “take it or leave it” basis. The insurance cases reflect the judicial conclusion that adhesion contracts frequently defeat the reasonable expectations of the parties. (See, e.g., Stephen v. Fidelity & Casualty Co. of New York (1962) 58 Cal.2d 862; Martinez & Whelan, General Practice Insurance Law (4th ed.) West pp. 108 et. seq.) The interrogatories set forth in this section are for use where defendant asserts that the agreement constitutes a contract of adhesion.

1. Do YOU contend that the contract was not drafted entirely by YOU?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that at the time [defendant] entered into the contract YOU did not occupy a position of superior bargaining strength?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that at the time [defendant] entered into the contract [defendant] was afforded any opportunity to negotiate the terms of such contract?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

§26125.2         Unconscionable Agreement

As set forth in §26105.2, unconscionability consists of both procedural and substantive elements. Procedural unconscionability focuses on factors of oppression and surprise sourced in an inequality of bargaining power and resulting terms concealed in printed forms. (A&M Produce Co. v. FMC Corp., supra, 135 Cal.App.3d at 473.) Even where these factors are present, the contract or contract term must also be substantively unconscionable, in the sense that the terms sought to be enforced are “overly harsh” without significant commercial “justification.” (Id.) The interrogatories set forth in this section are for use where defendant asserts that the contract should not be enforced because the elements of unconscionability are present.

1. Do YOU contend that the contract was not drafted entirely by YOU?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that at the time [defendant] entered into the contract YOU did not occupy a position of superior bargaining strength?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that at the time [defendant] entered into the contract [defendant] was afforded any opportunity to negotiate the terms of such contract?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

16. Do YOU contend that at the time [defendant] entered into the contract [here identify contract term alleged to be unconscionable] was sufficiently conspicuous within the contract?

17. If your answer to interrogatory number 16 was yes, please state each fact upon which YOU base such contention.

18. If your answer to interrogatory number 16 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

19. If your answer to interrogatory number 16 was yes, please IDENTIFY each WRITING relating to such contention.

20. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 19.

21. Do YOU contend that the [here identify contract term alleged to be unconscionable] is not oppressive?

22. If your answer to interrogatory number 21 was yes, please state each fact upon which YOU base such contention.

23. If your answer to interrogatory number 21 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

24. If your answer to interrogatory number 21 was yes, please IDENTIFY each WRITING relating to such contention.

25. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 24.

26. Do YOU contend that there exists any commercial justification for [here identify contract term alleged to be unconscionable]?

27. If your answer to interrogatory number 26 was yes, please state each fact upon which YOU base such contention.

28. If your answer to interrogatory number 26 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

29. If your answer to interrogatory number 26 was yes, please IDENTIFY each WRITING relating to such contention.

30. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 29.

§26126 Statute of Frauds

As set forth in §26106, California Civil Code §1624 provides that to be enforceable, certain types of contracts (or some memorandum thereof) must be embodied in a writing subscribed by the party to be charged. The statute covers several enumerated agreements, including (1) an agreement that by its terms is not to be performed within a year from the making thereof; (2) certain agreements pertaining to the lease or sale of real property; (3) an agreement that is not to be performed during the lifetime of the promisor; and (4) an agreement to answer for the debt or default of another. This list is not exclusive, but the interrogatories set forth in the sections that follow can be easily adapted to cases involving any contract subject to the statue of frauds.

It is well recognized that the statute of frauds constitutes an affirmative defense that is waived if not asserted. (See generally, Witkin, Summary of California Law (10th ed.) Contracts, §344 at 391.) The interrogatories set forth in the sections that follow explore the issues that arise when defendant asserts that statute of frauds bars recovery.

§26126.1         Application of Statute of Frauds

As noted above, the term “statute of frauds” refers generically to a variety of types of contracts as to which a subscribed memorandum or writing is required. (See, e.g., California Civil Code §1624.) The interrogatories set forth in this section explore plaintiff’s contentions when defendant asserts that the contract is of a type falling within the coverage of the statute.

§26126.1.1         Contract Not to Be Performed Within One Year

As set forth in §26106.1.1, an agreement that by its terms is not to be performed within one year from the making thereof comes within the statute. (California Civil Code §1624(a)(1).) In general, the only contracts within the statute are those in which there exists not the slightest possibility that the contract can be performed within one year. (See, e.g., White Lightning Company v. Wolfson (1968) 68 Cal.2d 336.) The interrogatories set forth in this section explore plaintiff’s contentions when defendant asserts that the contract by its terms cannot be performed within one year.

1. Do YOU contend that the contract between yourself and [defendant] can be fully performed within one year from the date of execution?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here set forth express term in the contract] permits performance within one year from the date of execution?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26126.1.2         Promise to Answer for the Debt or Default of Another

As set forth in §26106.1.2, a promise made to a creditor to answer for the debt, default or miscarriage of a creditor’s debtor is within the statute of frauds. (See California Civil Code §1624(a)(2).) The interrogatories set forth in this section are for use when defendant asserts that this aspect of the statute of frauds bars enforcement of the agreement sued upon.

1. Do YOU contend that the contract between yourself and [defendant] does not require [defendant] to discharge the obligation of [third person]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that no express term in the contract between yourself and [defendant] requires [defendant] to discharge the obligation of any third person?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26126.1.3         Sale of Real Property or an Interest Therein

As set forth in §26106.1.3, an agreement for the sale of real property or an interest therein is covered by the statute of frauds. (California Civil Code §1624(a)(3).) The key question is whether the contract is for the sale of real property or of an interest therein, or alternatively relates only tangentially to the sale of real property – such as an agreement to share the profits of a sale. The interrogatories set forth in this section are for use when defendant asserts that the contract is one for the sale of real property or of an interest therein.

1. Do YOU contend that the contract between yourself and [defendant] does not constitute an agreement for the sale of real property?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that the contract between yourself and [defendant] does not constitute an agreement for the sale of an interest in real property?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26126.2         Existence of Memorandum

As set forth in §26106.2, the statute of frauds does not require the contract itself to be in writing, but there must exist a memorandum thereof subscribed by the party to be charged. The “memorandum” may consist of a number of writings, and may be evidenced by writings which were never intended to constitute a contractual “memorandum.” (See Restatement 2d, Contracts §133.) In general, the memorandum must identify the subject matter of the contract, be sufficient to indicate that a contract with respect to the subject matter has been made, and state with reasonable certainty the essential terms of the agreement. (Id. at §131.) The interrogatories set forth in this section explore these issues, and examine the defendant’s contentions when defendant asserts the absence of a sufficient memorandum to comply with the statute of frauds.

1. Do YOU contend that [here identify document(s) allegedly constituting memorandum] evidence the agreement between yourself and [defendant]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here identify document(s) allegedly constituting memorandum] identify the subject matter of the agreement between yourself and [defendant]?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that [here identify document(s) allegedly constituting memorandum] identify the essential terms of the agreement between yourself and [defendant]?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

16. Do YOU contend that [here identify document(s) constituting memorandum] identify the consideration for the agreement between yourself and [defendant]?

17. If your answer to interrogatory number 16 was yes, please state each fact upon which YOU base such contention.

18. If your answer to interrogatory number 16 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

19. If your answer to interrogatory number 16 was yes, please IDENTIFY each WRITING relating to such contention.

20. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 19.

§26126.3         Estoppel to Plead the Statute of Frauds

As set forth in §26106.3, certain cases recognize that an agreement can be held enforceable absent compliance with the statute frauds where either: (1) the plaintiff has changed his position in reliance upon the contract so that unconscionable injury would be suffered were the agreement not enforced; or (2) the defendant has accepted the benefits of the oral agreement and would be unjustly enriched if the agreement were not enforced. (See, e.g., Monarco v. Lo Greco, (1950) 35 Cal.2d 621.) The interrogatories set forth in this section explore plaintiff’s contentions regarding both of these elements, and are for use when plaintiff asserts the existence of facts giving rise to the estoppel.

1. Do YOU contend that [defendant] made any statement to YOU that affirmed any alleged oral agreement?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [defendant] engaged in any conduct that affirmed any alleged oral agreement?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that YOU took any action in reliance upon any [words/conduct] by which [defendant] affirmed the alleged oral agreement?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

16. Do YOU contend that YOU would suffer injury were the alleged oral contract not enforced?

17. If your answer to interrogatory number 16 was yes, please state each fact upon which YOU base such contention.

18. If your answer to interrogatory number 16 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

19. If your answer to interrogatory number 16 was yes, please IDENTIFY each WRITING relating to such contention.

20. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 19.

21. Do YOU contend that [defendant] accepted the benefits of the alleged oral agreement?

22. If your answer to interrogatory number 21 was yes, please state each fact upon which YOU base such contention.

23. If your answer to interrogatory number 21 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

24. If your answer to interrogatory number 21 was yes, please IDENTIFY each WRITING relating to such contention.

25. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 24.

26. Do YOU contend that [defendant] would be unjustly enriched were the contract not enforced?

27. If your answer to interrogatory number 26 was yes, please state each fact upon which YOU base such contention.

28. If your answer to interrogatory number 26 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

29. If your answer to interrogatory number 26 was yes, please IDENTIFY each WRITING relating to such contention.

30. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 29.

§26127 Illegality

As set forth in §26107, it is well established that where the object of a contract is unlawful and the unlawful aspect goes to the whole of the contract, the contract is void. (See California Civil Code §§1607 and 1608.) A contract may be illegal if it is contrary to an express statute, contrary to the policy of an express statute, or is otherwise contrary to good morals. (Id. at §1667.) As a practical matter, litigation in these cases focuses on the two related issues of whether: (1) the object of the contract is illegal in the first instance; and, if so, (2) whether the illegality is severable such that other aspects of the contract can be enforced. The interrogatories set forth in this section address these issues from the defendant’s perspective.

§26127.1         Contract Contrary to Express Statute

As set forth in §26107.1, one instance in which a contract may be held void for illegality is where the contract contravenes the terms of an express statute. (California Civil Code §1667.) The interrogatories set forth in this section are for use when defendant asserts that enforcement of the contract would violate the terms of a statutory provision.

1. Do YOU contend that [here specify term in agreement] does not violate the prohibition contained in [here specify statute]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here identify contractual term alleged to violate statutory prohibition] can be severed from the remainder of the contract?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26127.2         Contract Contrary to the Policy of an Express Statute

As set forth in §26107.2, one instance in which a contract may be held void for illegality is where the contract contravenes the terms of the policy of an express statute. (California Civil Code §1667.) The interrogatories set forth in this section are for use when defendant asserts that enforcement of the contract would violate the terms of a statutory provision.

1. Do YOU contend that [here specify term in agreement] does not violate any public policy effectuated by [here specify statute]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here identify contractual term alleged to violate a public policy effectuated by statute] can be severed from the remainder of the contract?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26127.3         Contract Contrary to Good Morals

As set forth in §26107.3, one instance in which a contract may be held void for illegality is where the contract is contrary to good morals. (California Civil Code §1667.) The interrogatories set forth in this section are for use when defendant asserts that enforcement of the contract would violate contemporary morals.

1. Do YOU contend that [here specify term in agreement] does not violate any public policy?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here identify contractual term alleged to violate a public policy] can be severed from the remainder of the contract?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26128 Impossibility of Performance

As set forth in §26108, it is well recognized that where the obligation to be performed under the contract has become impossible or impracticable, as measured by the applicable legal test, the obligor’s performance is excused. (See generally, California Civil Code §1511.) The Second Restatement treats impracticability and frustration of purpose together under the rubric of “supervening impracticability” and provides that the obligor may be relieved of his or her obligations where the contract is shown to have been made on a basic assumption different from that which actually exists. (Restatement 2d, Contracts §261.) Although traditional doctrine only recognized the defense where performance was objectively impossible, the modern cases also excuse performance where the performance would be rendered impracticable because of excessive difficulty or expense. (See generally, Witkin, Summary of California Law (10th 3d.) Contracts, §842 at 928.) The interrogatories set forth in the sections that follow address some of the recurring factual situations in which a defendant asserts that performance has been rendered impossible or impracticable.

§26128.1         Operation of Law

As set forth in §26108.1, when intervening acts or pronouncements by the government render the contemplated performance illegal, performance is excused. The interrogatories set forth in this section are for use when defendant asserts that his or her obligations are excused by operation of law.

1. Do YOU contend that [here set forth provisions of statute, ordinance, etc.] do not preclude performance of [defendant’s] obligations under the agreement dated ____?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here identify contractual term alleged to violate statute, ordinance, etc.] can be severed from the remainder of the contract?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that [here set forth provision of statute, ordinance, etc.] does not render performance of [defendant’s] obligations under the agreement dated ____ impossible?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

§26128.2         Destruction of Subject Matter

As set forth in §26108.2, where the agreement between the parties assumes the continued existence of an object or thing, as where the contract anticipates the purchase of a specific item, the destruction of that object or thing operates to excuse the promisor’s obligations. (See Restatement 2d, Contracts §263; California Civil Code §1597.) The interrogatories set forth in this section are for use when defendant asserts that the destruction of such an object or thing excuses his or her performance.

1. Do YOU contend that the contract between yourself and [defendant] may be performed notwithstanding that [here identify specific item, etc.] no longer exists?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that the contract between yourself and [defendant] may be performed by [delivery, transfer, etc.] of [here identify item, etc., by generic class or description]?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that the destruction of any [here identify specific item, etc.] did not render performance of [defendant’s] obligations under the agreement impossible?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

§26128.3         Death of Promisor Where Contract Calls for Personal Services

As set forth in §26108.3, the question of whether the death of the promisor renders performance impossible such that the promisor’s estate is excused from performance turns on whether the contract calls for performance that is personal in nature or conversely, is of such a nature that it can be performed by others. The interrogatories set forth in this section are for use when defendant (usually an estate) asserts that the obligation was discharged due to the death of the obligor because the contract called for personal services to be rendered by the decedent.

1. Do YOU contend that the contract between [decedent] and YOU could be performed by anyone other than [decedent]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that the nature of the services to be provided under the the contract between [decedent] and YOU were such that they could be performed by anyone other than [decedent]?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that the death of [decedent] did not render performance of the obligations under the agreement dated ____ impossible?

12. If your answer to interrogatory number 11 was yes, please identify each such [statute, ordinance, etc.].

13. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

15. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

16. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 15.

§26128.4         Unreasonable Difficulty or Expense

As set forth in §26108.4, the defense of impossibility and/or impracticability has been extended to cases in which the performance is impracticable due to unreasonable difficulty or expense. (See generally, Witkin, Summary of California Law (10th ed.) Contracts, §842 at 928, and cases cited therein.) As a practical matter the issues to be litigated in these cases focus on the degree of difficulty or expense, because mere unforeseen difficulty or expense does not rise to the level of impossibility, but unreasonable difficulty or expense may. The interrogatories set forth in this section are for use when defendant asserts that due to unforeseen circumstances, performance has become so oppressive or costly that his or her performance should be excused.

1. Do YOU contend that performance of [defendant’s] obligations under the agreement was not rendered unreasonably difficult due to [here set forth supervening event, etc.]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that performance of [defendant’s] obligations under the agreement was not rendered unreasonably expensive due to [here set forth supervening event etc.]?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that [here identify facts constituting alleged difficulty or expense] did not render performance of [defendant’s] obligations under the agreement dated ___ impossible?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

§26129 Frustration of Purpose

As set forth in §26109, the Second Restatement of Contracts §265 provides generally that when a party’s principal purpose is substantially frustrated without his or her fault by the occurrence of an event, the nonoccurrence of which was a basic assumption upon which the contract was made, his or her duty to render performance is discharged. The essential elements of the defense are: (1) the purpose that is frustrated must have been a principal purpose of the party in making the contract; (2) the frustration must be substantial; and (3) the nonoccurrence of the frustrating event must have been a basic assumption upon which the contract was made. (Restatement 2d, Contracts §265, Comment A.) The interrogatories set forth in the sections that follow explore these issues from the defendant’s perspective.

§26129.1         Principal Purpose Frustrated

As set forth in §26109.1, the purpose that is frustrated must have been a principal purpose of the party in making the contract; this purpose must constitute the basis of the contract such that the parties would not have entered into the contract in the absence of such purpose. The interrogatories set forth in this section are for use when defendant contends that a principal purpose has been frustrated by an intervening event.

1. Do YOU contend that the principal purpose of the agreement dated ____ was not frustrated?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here identify fact or event that frustrated purpose of agreement] did not occur as a result of events beyond [defendant’s] control?

7. If your answer to interrogatory number 6 was yes, please state why each [fact or event] that frustrated the purpose of agreement was beyond your control.

8. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

10. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

11. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 10.

§26129.2         Substantial Frustration

As set forth in §26109.2, the defense is not established if the contract merely becomes less profitable, etc. To the contrary, the frustration must be such that it is not to be regarded as “within the risks that [the party] assumed under the contract.” (Restatement 2d, Contracts §265, Comment A.) The interrogatories set forth in this section are for use when defendant asserts that the frustrating event was such that it was not to be regarded as within the risks assumed by the defendant.

1. Do YOU contend that when [defendant] entered into the agreement dated ____ [defendant] assumed the risk that [here identify fact or event that frustrated purpose of agreement]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here identify fact or event] did not frustrate the entire purpose of the agreement?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26129.3 Frustration Going to a Basic Assumption on Which Contract Was Made

As set forth in §26109.3, the third element requires a showing that the nonoccurrence of the frustrating event was a basic assumption on which the contract was made. The interrogatories set forth in this section are for use when defendant asserts that the nonoccurrence of the identified event was a basic assumption upon which the parties entered into the agreement.

1. Do YOU contend that when [defendant] entered the agreement dated ____ [defendant] assumed the risk of [here identify fact or event that frustrated purpose of agreement]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here identify fact or event] did not frustrate the entire purpose of the agreement]?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

§26130 Accord and Satisfaction

As set forth in §26110, California Civil Code §1521 provides that “an accord is an agreement to accept, in extinction of an obligation, something different from or less than that to which the person agreeing to accept is entitled.” Moreover, California Civil Code §1523 adds that acceptance by the creditor of the consideration of an accord extinguishes the (original) obligation and is called a satisfaction. These concepts are most frequently invoked where the defendant claims a settlement of a preexisting claim; in such cases, the accord substitutes a new executory contract which, when performed by an exchange of consideration, extinguishes the original obligation. (See California Civil Code §§1522 and 1523.) The interrogatories set forth in this section explore plaintiff’s contentions when defendant asserts that his or her performance under the original agreement was discharged as a result of a subsequent accord and satisfaction.

1. Do YOU contend that the performance required under the agreement dated ____ was not discharged by virtue of [here set forth facts pertaining to accord and satisfaction]?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here describe alleged subsequent agreement and related events] did not constitute an accord and satisfaction of [defendant’s] obligations under the agreement dated ____?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that the consideration for [here describe alleged accord and satisfaction] has never been paid?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

16. Do YOU contend that YOU did not agree to accept [here describe alternative or different performance] in discharge of [defendant’s] obligations under the agreement dated ____?

17. If your answer to interrogatory number 16 was yes, please state each fact upon which YOU base such contention.

18. If your answer to interrogatory number 16 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

19. If your answer to interrogatory number 16 was yes, please IDENTIFY each WRITING relating to such contention.

20. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 19.

§26131 Novation

As set forth in §26111, the law recognizes that where it is shown that the parties have entered into a new agreement with the intent to extinguish their preexisting obligations, performance under the old agreement is discharged and liability, if any, flows from a breach of the new contract. (See generally, California Civil Code §1530; CACI 375.) In such settings, the defendant may set up the novation as a defense to any action on the original agreement. The interrogatories set forth in this section explore plaintiff’s contentions when defendant asserts that performance under the original agreement was discharged as a result of a novation between the parties.

1. Do YOU contend that any performance required under the agreement dated ____ was not discharged by virtue of a subsequent novation?

2. If your answer to interrogatory number 1 was yes, please state each fact upon which YOU base such contention.

3. If your answer to interrogatory number 1 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

4. If your answer to interrogatory number 1 was yes, please IDENTIFY each WRITING relating to such contention.

5. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 4.

6. Do YOU contend that [here describe alleged subsequent agreement] did not discharge [defendant’s] obligations under the agreement dated ____?

7. If your answer to interrogatory number 6 was yes, please state each fact upon which YOU base such contention.

8. If your answer to interrogatory number 6 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

9. If your answer to interrogatory number 6 was yes, please IDENTIFY each WRITING relating to such contention.

10. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 9.

11. Do YOU contend that YOU did not agree to accept [here describe new agreement] in discharge of [defendant’s] obligations under the agreement dated ____?

12. If your answer to interrogatory number 11 was yes, please state each fact upon which YOU base such contention.

13. If your answer to interrogatory number 11 was yes, please IDENTIFY each PERSON who has knowledge of any fact relating to such contention.

14. If your answer to interrogatory number 11 was yes, please IDENTIFY each WRITING relating to such contention.

15. Please IDENTIFY the present CUSTODIAN of each WRITING identified in your answer to interrogatory number 14.

Kevin R. Culhane is a partner with a law firm of Hansen, Boyd, Culhane & Watson in Sacramento, California. His practice consists primarily of professional liability and appellate law. He has been faculty member at Hastings Center for Trial and Appellate Advocacy in San Francisco, and frequently lectures on discovery and trial matters for California’s Continuing Education of the Bar. Following a one-year term as Vice-President of the State Bar of California, Mr. Culhane was appointed to two successive terms as a member of the Judicial Council of California.  Mr. Culhane is the author of Model Interrogatories, from which this article is excerpted.