Appeal from a judgment of dismissal, not the order sustaining the demurrer without leave to amend

At the hearing on the demurrer, you will likely find the trial court is liberal in granting leave to amend, especially if the defects can be remedied by more comprehensive allegations.  Some judges want to avoid several rounds of pleadings and demurrers by inquiring if and how you can amend the pleadings.  Always take that opportunity to explain how the pleading can be amended.  And if the court seems indifferent to the possibility of amendment, ask for it, and if given the chance, take the lead in describing how the complaint can be amended.

If the trial court determines that no amendment will overcome the defects in your pleading, then you are going up to the appellate court.  But not so quickly.  Many attorneys make the mistake of appealing from the order sustaining the demurrer without leave to amend and then find themselves facing either a premature appeal or an appeal from a non-appealable order. 

Appeal from the judgment of dismissal, not the order sustaining the demurrer without leave to amend. If the order sustaining the demurrer without leave to amend eliminates all causes of action and disposes of the matter between the parties, then you will have to appeal to get back into court.  You must appeal from the judgment of dismissal that follows the order.  (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611; Farwell v. Sunset Mesa Property Owners Ass’n Inc. (2008) 163 Cal.App.4th 1545, 1551, fn. 1.)  If, however, the order does not dispose of all causes of action, you will have to decide whether to file a writ petition, continue to trial on the remaining causes of action, or dismiss the causes of action that remain alive.  Keep in mind that your chances with a writ petition are minimal.  “Appeal is presumed to be an adequate remedy, and writ review is rarely granted unless a significant issue of law is raised or resolution of the issue would result in a final disposition as to the petitioner.”  (Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1151.)

In my upcoming posts, we'll examine why an appeal in this situation can favor the appellant.