Metropolitan News-Enterprise


Wednesday, November 21, 2001


Page 4


Plaintiff May Appeal Dismissal Based on Uncontested Demurrer—C.A.


By a MetNews Staff Writer


A plaintiff was not foreclosed from appealing a judgment of dismissal following the sustaining of a demurrer without leave to amend even though he filed no opposition to the demurrer and did not attend the hearing on it, the Court of Appeal for this district held yesterday.

The ruling came in an unpublished opinion for Div. Two by Justice Candace Cooper. It reinstates an action for damages by David Frazier against his employer, the City of Los Angeles, for allegedly having wrongfully disciplined him.

Los Angeles Superior Court Judge Patricia Spear had ordered the dismissal based on her perception that the action was time-barred. Untimeliness was not among the eight bases for the demurrer filed by the defendant, the City of Los Angeles.

On appeal, the city acknowledged that the complaint was timely, but argued that the dismissal was valid in light of other grounds it had set forth in support of the demurrer, such as governmental immunity. In any event, the city asserted, Frazier had waived his right to an appeal by not contesting the demurrer.

The Court of Appeal held there had been no waiver. Cooper wrote:

“The complaint either does or does not state a cause of action, and the decision to grant or deny leave to amend is either an abuse of discretion or not an abuse of discretion. The burden is on the moving party, the City, to demonstrate the validity of its demurrer. We do not approve of appellant’s failure to file a response below; such neglect increases the burden on the trial court and is not appropriate legal practice. However, respondent has failed to provide authority that absence of a response or appearance by plaintiff amounts to waiver of any objection to the sustaining of a demurrer.”

Cooper did not address the other grounds for the demurrer, giving Frazier another chance to address them on remand. She explained:

“We are concerned that appellant has not addressed the other grounds raised by the City as possible grounds for sustaining the demurrer. As regarding his failure to file a response or appear below, such practice is not to be encouraged. Ordinarily, the failure to counter the other grounds for demurrer might be considered an abandonment of those issues on appeal, where the burden is on appellant to demonstrate error. However, appellant may not have responded because the trial court decided that, except for the issue of timeliness, the demurrer would have been sustained with leave to amend regarding failure to state a cause of action. The minute order specifically stated: ‘The demurrer would be sustained with leave to amend on the grounds of failure to state a cause of action, however the legal basis for this and all other grounds are moot in view of the court’s ruling on the issue of timeliness.’ (Italics added) Given that this was plaintiff’s initial complaint, leave to amend would generally not be an abuse of discretion in those circumstances.”

The case is Frazier v. City of Los Angeles, B143693. John De Hart represented the appellant and Deputy City Attorney Marie McTeague argued for the city.


Copyright 2001, Metropolitan News Company