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

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.

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.