Standard of review of a judgment of dismissal after an order sustaining a demurrer without leave to amend

I don't mean to offend anyone, particularly any of my colleagues, but appellate attorneys are not known to be a gregarious group of lawyers.  We take delight in odd things, such as when the Supreme Court overrules a key case relied upon by our opposition, that same court grants review of one of our cases, or the opinion of the court of appeal or Supreme Court in our case is published, promising us some measure of immortality.  When a client calls about an appeal, we immediately want to know what type of action brought the case to the appellate courts.  Was it a judgment after a jury trial, a summary judgment, or a judgment of dismissal of after an order sustaining a demurrer without leave to amend?  We then want to know what standards of review apply.  Somewhere a researcher has studied the appellate process and calculated the statistics for success in different standards of review.

An appeal from a judgment of dismissal after an order sustaining a demurrer without leave to amend might bring a smile to the appellate attorney's face.  After all, California has a policy of resolving cases on their merits, and a dismissal at the pleading stage denies the plaintiff the right to a trial before a jury or court.  This policy is an inherent part of all appeals at this stage and the appellate courts do not take this policy lightly.  For appellate attorneys, we are hoping for a chance to overcome pleading deficiencies and get the plaintiff back into court.  After the pleading challenges are dealt with, whether the plaintiff wins or loses depends on the evidence and how the trier of fact views the case.  But even though a complaint must satisfy certain requirements, it should be remembered that the complaint is not generally even seen by the jury.

From a practical standpoint, an appellate attorney takes delight in knowing that the appellate court conducts an independent or de novo review of the judgment of dismissal, including the substantive issues.  (Tracfone Wireless, Inc. v. County of Los Angeles (2008) 163 Cal.App.4th 1359, 1363.)  The court will determine if you can state facts sufficient to constitute a cause of action under any legal theory.  (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 349.)  This standard of review is one that is favored by appellate attorneys and is quite helpful to a plaintiff who might have pled a legal theory that isn’t supported by the law or facts, but later discovers a better legal theory that applies. That also means the appellate court is not that concerned with the ruling below; you can ask for review as if you never appeared before the trial court.  That doesn’t mean that the appellate court has no interest in what the trial court ruled, but its order is not binding on the appellate court and it won’t stop them from looking at it anew.  (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1421.)  The appellate court generally ignores the trial court’s reasoning, and fortunately for the appellant, it is not limited by the theories raised in the pleading.  (Community Assisting Recovery, Inc. v. Aegis Security Ins. (2001) 92 Cal.App.4th 886, 891.)