Appealing from dismissals after terminating motions

An appeal is generally taken from a final judgment, but that doesn’t necessarily mean the parties have had their day in court. Sometimes a case is cut short by motions that effectively terminate the case, and a judgment of dismissal is then entered after the order granting the terminating motion. These motions could be a motion to quash, demurrer, motion to strike, motion for judgment on the pleadings, a motion for summary judgment, and dismissal motions. On the plus side, the appellant enjoys the benefit of California public policy that seeks to dispose of cases on their merits. Reviewing courts tend to be more skeptical of appeals from judgments that precluded a trial.

Demurrers:

In law school, we were taught that demurrers are disfavored and you shouldn’t file one unless it is going to eliminate a cause of action or complaint.  If it doesn’t, all you are doing is educating your opponent, sometimes at a crucial phase of the proceedings, so that your opponent, now aware of the omission, can remedy the problem.  Others view a demurrer as either a “billable event” or just a battle in an ongoing war.  If you win the battle, does that necessarily mean you will at trial?  Can you feel triumphant if your demurrer is sustained, only to face a new amended (and improved) pleading?

Through the years, I have observed three different types of demurrers:

1. A demurrer that attacks pleading defects that can be remedied;


2. A demurrer that attacks pleading defects and presents a true question of law;


3. A demurrer that attacks the pleading based on a question of law that no amendment can remedy.

If you are preparing the complaint and have done your homework as to what must be alleged to constitute a cause of action, then theoretically you will never face a demurrer that attacks pleading defects.  While I don’t necessarily stick to a form book for my entire pleading, I will use it as a checklist to make sure all necessary allegations are present.

Okay, so you have your pleading and the other side files a demurrer that notes you have omitted crucial allegations.  Now the battle begins.  But if you haven’t alleged that crucial allegation, why fight it?  Use the demurrer as a learning experience, even a checklist, and just fix up your complaint.  You might just call the other side and tell them that an amended complaint will be filed, making the demurrer moot.  Or just file it before the hearing.  (That doesn’t mean allowing the court to work up the demurrer papers and then filing at the last minute.)  In my opinion, there is no good reason to fight a demurrer on procedural defects; it only costs the clients money and gives you more work to do.  Your time is better spent on amending the pleading.

If you are facing a demurrer that has both pleading defects and an appealable question of law, then I would still clean up the pleading so that it looks as great as possible.  Now you are ready to fight the real issue.  You don’t want to go to the appellate court with a sloppy pleading, even if the issue can’t be cured by amendment.

If your pleading is as good as it gets, now you are ready to fight it on the legal issue.  It could be an issue of standing to bring the action or the application of the statute of limitations, but the issue can’t be resolved at the lower trial level.  And no matter how well written your pleading is, you cannot avoid appellate review as to whether you can state a cause of action.