PRETRIAL ADJUDICATION
...Demurrers
......Ruling on Demurrer
.........Sustaining Without Leave to Amend
68 Cards On This Topic:

P may not amend complaint against her employer's payroll co. to state C/As for breach of K (3d party benef.), negligence and negligent misrepresentation.

Demurrer properly sustained without leave to amend where self-storage company was not required by law to have an insurance license to sell a property protection plan to its customers.

Demurrer for bank reversed as CCP §580b's antideficiency protection applies to short sales just as it does to foreclosure sales.

Demurrer for Ds reversed as a borrower in a nonjudicial foreclosure does not lack standing to sue for wrongful foreclosure based on an allegedly void assignment merely because she was in default and was not a party to the assignment.

Trial court properly sustained County's demurrer to state law claims and federal civil rights cause of action in case where W shot by ex-H in courthouse hallway.

Court properly sustained demurrer without leave as to property owner's C/As against City where he failed to allege City had mandatory duty to preserve property in landslide zone.

A trial judge should rarely sustain a demurrer to an initial complaint without leave.

Demurrer properly granted without leave where client's malpractice action did not toll one-yr. statute of limitations because she had no reasonable expectation attorney would provide further legal services after court granted withdrawal.

Demurrer improperly sustained without leave on Homeowner Bill of Rights claim where defendants' denial of loan modification application was not sufficiently detailed.

Demurrer properly sustained without leave to amend where voter's ballots are protected from public disclosure under the CPRA.

Demurrer improperly sustained without leave to amend where B&PC §17501 is not void for vagueness.

During the pendency of a putative class action, the applicable statute of limitations is tolled only for unnamed class members' individual claims, not class claims.

Demurrer improperly sustained as to invasion of privacy cause of action where litigation privilege did not apply because no litigation was pending, raising a question as to whether it was imminent.

Demurrer properly sustained without leave to amend where defendant smartphone manufacturer did not owe a duty of care to plaintiffs-car accident victims injured or killed while driver was using Apple FaceTime.

Demurrer properly sustained without leave to amend where the element of causation was missing from causes of action that did not require a showing defendant owed a duty of care to plaintiffs.

Demurrer properly sustained without leave to amend where Senate Bill No. 277, which repealed the personal belief exemption to immunization, is not unconstitutional.

Demurrer improperly sustained without leave to amend where plaintiff alleged facts necessary for an unjust enrichment cause of action.

Demurrer properly sustained without leave to amend where claims were barred by a general release and where plaintiff could not properly allege negligent misrepresentation.

Demurrer improperly sustained without leave where employee's statutorily required pre-suit notice gave minimal facts supporting alleged wage statement violations.

Demurrer improperly sustained without leave to amend where plaintiff suffered economic injury due to defendant's false former price representation.

Demurrer properly sustained without leave to amend where defect could not be cured by amendment, and where law of the case doctrine did not apply because trial ct. ruled only that plaintiffs could potentially amend.

Trial ct. sustaining demurrer without leave to amend was proper where plaintiff's writ petition was not filed within 30 days of state agency's mailing of its "immediately effective" decision.

Plaintiff is imprisoned on a criminal charge within the two-year tolling provision of CCP §352.1 only if he is serving a term of imprisonment in state prison, and not if he is in pretrial custody in county jail.

Demurrer improperly sustained on res judicata grounds because prior judgment based on statute of limitations was not on the merits.

Demurrer properly sustained without leave to amend where plaintiff did not exhaust its administrative remedies.

In suit for asbestos-related disease, claim must be presented to a government entity within six months of the date the plaintiff discovered or reasonably should have discovered her injury.

Trial court erred in failing to apply the doctrine of continuous accrual, under which part of the heirs' contract claim to royalties from their father's songs used by Disney was timely.

Demurrer for Ds improper where SOL on P's negligence C/A was tolled under "foreign body" exception of CCP 340.5—stent placed temporarily in his body during procedure and meant to be removed later, of which he was unaware, came w/in exception.

CMIA allows a private right of action for negligent maintenance of patient's medical information only when such negligence results in unauthorized or wrongful access to the information.

Error to sustain D's demurrer w/o leave where complaint could have been amended to cure the defects and allege C/As for GFFD breach and CL wrongful foreclosure based on valid loan modification agrmt.

Demurrers properly sustained where P's C/As were barred spoliation of evidence claims and she could not amend to allege K and fiduciary obligations against Ds for failing to preserve evidence essential to her causation claim.

Attorney cannot sue client for conspiracy to defraud by falsely promising to go to trial to induce attorney to change retainer agrmt from hourly to contingency—demurrer to complaint properly sustained.

Demurrer proper re surrogate-borne Cs' complaint against deceased F who divorced mother before their birth—one-year SOL of CCP 366.2 barred action; minority tolling statute did not trump section 366.2.

City's demurrer properly sustained where complaint failed to allege DP and EP violations and, as P expressly declined to amend complaint in trial court, it could not seek leave to do so on appeal.

Because shareholder could not sue derivatively in CA without approval of high court of country in which company incorporated, trial court properly sustained company's demurrer without leave to amend.

Testator's lawyer owed no duty of care to nonclient 2d wife who alleged she was a potential beneficiary of the estate w/out executed will or trust expressly reflecting testator's intent.

Banks owed no duty to lawyer whose office manager forged his name, opened accounts, deposited, then stole, client trust money; banks' demurrers properly sustained w/out leave.

Demurrer for D calf ranchers proper where ALDF could not assert private C/A per PC 597t for animal mistreatment, and individual Ps, dairy consumers, could not allege any facts of economic injury.

Litigation privilege applies to credit union's response document subpoena in probate/elder abuse case, and barred causes of action for invasion of privacy and IIED—trial ct. erred in overruling credit union's demurrers.

Demurrer properly sustained without leave based on collateral estoppel where Ps in another lawsuit were "virtual representatives' of appellants here, only difference being name of representative P.

Court correctly sustained demurrers w/out leave to amend where P did not show he could amend complaint to state C/A under CLRA against AMEX for credit card-related relief; extension of credit does not fall within the scope of CLRA.

Trial court abused its discretion by sustaining demurrer without leave to amend where nonclient P could have readily amended to state a cause of action for professional negligence against testator's attorney.

CMAB's demurrers to PETA complaint sustained without leave as public entities, including CMAB, are not "persons" subject to suit under UCL.

Trial court properly sustained Stanford's demurrer to P's 1st amended complaint without leave to amend, as P, suspended for Honor Code violation, failed to exhaust judicial remedies before asserting claim for damages.

Court erred in sustaining D's demurrer "without" leave to amend to allege damaged real property not covered by homeowners assoc.'s ins. and/or property was covered "improvements" under policy.

Absent proposed pleading or showing of reasonable possibility that amended complaint would cure defect of earlier complaint, P did not meet burden of showing trial court abused discretion by sustaining demurrer w/out leave to amend.

Limitations period in action on money judgment tolled by D's bankruptcy petition and resulting automatic stay.

In extending CCP 335.1 SOL to 2 years, Legislature intended it to apply retroactively only to 9/11 terrorist victims, not to all tort victims.

P could not state a claim for liability against her alleged attacker and his lawyer where they obtained her medical and psychiatric records through court's normal processes, including court order.

Court properly sustained Ds' demurrers, and did not abuse discretion in denying leave to amend where fired USC professor failed to challenge tenure and grievance procedure via administrative mandamus.

P precluded by statute from enforcing D's divorce judgment which ordered D to repay his ex-W's debt to P.

Uncertified complaint, DA letter and fraud handbook not proper subjects of mandatory or permissive judicial notice, nor were documents for which Ds did not comply with rules for seeking judicial notice.

Ds' demurrer properly sustained where declaratory relief action barred by res judicata because of earlier declaratory judgment that P not entitled to relief from same Ds.

Dismissal on demurrer w/out leave proper where P’s complaint didn’t state "unlawful business practice" under Unfair Competition Law and P could not meet burden to amend.

Demurrer without leave improperly sustained where initial public offering underwriter’s complaint against company and its accountants stated causes of action for negligent and intentional misrepresentation.

Project architect, not a party to contract, had no standing to assert indemnification and negligence causes of action where contract specifically reserved indemnification to parties.

Demurrer for City proper where PSA time limits not effective until CEQA EIR process complete and P's allegations showed none of appropriate actions completed before P filed suit.

Where allegations in complaint sufficient to state claim for breach of oral contract, trial ct. erred in sustaining demurrer without leave to amend.

Trial ct. erred in sustaining demurrer w/o leave for lack of written K where consumer would be unjustly enriched as result of her failure to pay contractor for reasonable value of work.

Ds' demurrer properly sustained as Code Civ. Proc. §340.6 not subject to equitable tolling; Legislature intended statute's explicit tolling provisions to be exclusive.

Once bankruptcy petition filed, property of Corp. became property of estate, and trustee-not the debtor-had sole capacity to represent estate and sue or be sued in legal malpractice case.

Leave to amend FEHA complaint properly denied employee who had hysterectomy unrelated to pregnancy; facts not in dispute and no liability under law.

Court abused its discretion in refusing D leave to amend cross-complaint, as possibility existed D could state cause of action on 3rd-party beneficiary theory.

Leave to amend properly denied where ct. finds that no liability exists and defect in complaint cannot be cured by amendment.

Defect in complaint can’t be cured by omitting defective allegation, that was disclosed in previous pleading, in subsequent complaint pertaining to same cause of action.

Error to sustain demurrer without leave to amend where complaint could easily be amended.

Sustaining State’s demurrer without leave proper where state owed no mandatory duty to develop testing & reporting procedures for congenital defect; in any event, state immune from suit.

Sustaining demurrers without leave to amend: Case examples.