Legal Memorandum: Granting a Demurrer in CA

Issue: Under the laws of California, before granting a demurrer, should a court permit a party leave to amend its complaint and fix pleading problems?

Area of Law: Litigation & Procedure
Keywords: Demurrer; Leave to amend its complaint
Jurisdiction: California
Cited Cases: None
Cited Statutes: None
Date: 01/01/2000

A demurrer may not be sustained without leave to amend if "there is a reasonable possibility that the defect can be cured by amendment."  Hambrecht & Quist Venture Partners v. American Medical Int’l, Inc. (1995) 38 Cal. App. 4th 1532, 1539.  Put another way, "[a] trial court’s ruling sustaining a demurrer is deemed erroneous where a plaintiff has stated a cause of action under any possible legal theory."  Terhell v. American Commonwealth Assocs. (1985) 172 Cal. App. 3d 434, 438.


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