In what circumstances will a plaintiff be demurrer in an amended complaint?

California, United States of America


The following excerpt is from Queen v. Mission Cmty. Hosp., B275928 (Cal. App. 2018):

Queen, in every successive pleading, either added new exhibits, or deleted exhibits and allegations contained in previous iterations of the complaint. In considering whether she has stated a cause of action that is not barred by the applicable statute of limitations, however, we not only assume the truth of the facts pleaded in the version of the complaint under review, but also take judicial notice of her earlier pleadings. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877-878 ["A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. [Citation.] Likewise, the plaintiff may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false. [Citation.]"].)

Where exhibits are attached, we accept facts appearing in those exhibits as true, accepting them over allegations which they contradict. (Nolte v. Cedars Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) Unexplained inconsistencies with earlier pleadings may be disregarded, as a plaintiff may not omit harmful information to avoid challenges to the pleading. (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343-344.)

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