Can a plaintiff who failed to oppose a demurrer still win an appeal of the judgment of dismissal?

After a court sustains a demurrer with leave to amend, the plaintiff has a limited period of time in which to amend the complaint. Unless the court orders a different deadline, a plaintiff has leave to amend the complaint within 10 days. Note that for actions in forcible entry, forcible detainer, or unlawful detainer, 5 calendar days to amend is deemed granted. (Cal. Rule Court 3.1320, subd (g).) If the plaintiff fails to amend the complaint within the deadline or at all, the defendant(s) may move ex parte for dismissal of the action. (Cal. Rule Court 3.1320, subd (h).) A plaintiff cannot appeal directly from the Order sustaining the demurrer without leave to amend, but can take an appeal from the judgment of dismissal.

Can a plaintiff ever successfully appeal the dismissal of the action if the plaintiff did not even file an opposition to the demurrer? In nonpublished cases, California courts have stated that the plaintiff’s failure oppose the demurrer was not fatal to the appeal.

In the nonpublished case of Bretches v. OneWest Bank 2012 WL 6616478, the plaintiffs/appellants did not file an opposition to the demurrer to the second amended complaint. The Court of Appeal noted that ordinarily, a party’s failure to oppose a motion at the trial court would constitute waiver of appellate review. [Citation.] A special rule, however, applies to demurrers. Under Code of Civil Procedure section 472c, subdivision (a), “ ‘[a] trial court’s order sustaining a demurrer without leave to amend is reviewable for abuse of discretion “even though no request to amend [the] pleading was made.” [Citation.] While it is the plaintiff’s burden to show “that the trial court abused its discretion” and “show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading” [citation], a plaintiff can make “such a showing … for the first time to the reviewing court” [citation].’” (Bretches, supra, at *4.) The Court reversed the dismissal and instructed on remand that appellants be permitted to file a third amended complaint for certain causes of action.

See also the nonpublished case of Shipman v. Napa County 2011 WL 5307404 in which the Court of Appeal vacated the judgment of dismissal even though plaintiffs/appellants had not filed any written opposition to the demurrer.

Thus, where a demurrer is sustained without leave to amend and even where the plaintiff failed to oppose the demurrer, a showing that the complaint can be amended to state a claim may be made in the first instance to the appellate court. However, the plaintiff must prove to the Court of Appeal that the complaint can actually be amended to state a valid cause of action. An experienced attorney can help you analyze whether any of the causes of action in your complaint can be amended to state a valid claim.

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