What is the test for reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend?

California, United States of America


The following excerpt is from Elliott v. Gilbert Retail Holdings, C056080 (Cal. App. 8/27/2008), C056080 (Cal. App. 2008):

"When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint's properly pleaded or implied factual allegations. [Citation.] Courts must also consider judicially noticed matters. [Citation.] In addition, we give the complaint a reasonable interpretation, and read it in context. [Citation.] If the trial court has sustained the demurrer, we determine whether the complaint states facts sufficient to state a cause of action." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) "In making this determination, we are not bound by the trial court's construction but instead make our own independent judgment as to the sufficiency of the complaint." (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1038-1039.)

"If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect." (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)

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