Metropolitan News-Enterprise


Wednesday, February 10, 2016


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Court of Appeal Reverses Dismissal Based on Plaintiff’s Failure to Amend Complaint

Judge Meiers Had No Power to Dismiss Where Demurrers to Two Causes of Action Were Sustained Without Leave to Amend, Three Causes of Action Were Extant—Opinion


By a MetNews Staff Writer


A  Los Angeles Superior Court judge erred in dismissing an action based on the plaintiff failing to amend the complaint where there was nothing to amend, the Court of Appeal for this district held yesterday.

Plaintiff Ronni Paer—an attorney suing a law firm for unpaid fees—couldn’t amend two causes of action to which demurrers had been sustained because they were sustained without leave to amend, the opinion, by Justice Lamar Baker of Div. Five, pointed out. The three causes of action to which demurrers had been overruled did not need to be amended, he noted.

The opinion, which was not certified for publication, recited that that Judge Barbara Ann Meiers, after snipping the two causes of action from the complaint, granted Paer 15 days within which to amend. After the 15 days had passed, defendant Robert Koenig, an Agoura Hills attorney, made an ex parte motion for a dismissal which Meiers granted “[b]ased upon the moving papers, California Code of Civil Procedure and applicable case law.”

No Statutory Support

Baker found no statutory authorization for Meier’s action.

Code of Civil Procedure §581(f)(1), he wrote, permits a court to dismiss an action “after a demurrer to the complaint is sustained without leave to amend and either party moves for dismissal.” Baker observed:

“This section applies only where a court sustains a demurrer to all causes of action….After all, if valid claims remain after a court sustains demurrers to some but not all causes of action, the plaintiff is entitled to go forward on the claims that have been found to state a valid cause of action.”

Sec. 581(f)(2), he set forth, allows a court to dismiss “after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.”

That section, Baker said, “does not apply here because the trial court denied leave to amend when sustaining the demurrers” to two of the causes of action.

Cases Are Inapposite

Contradicting Meiers, Baker declared that no support for her action is found in case law. He said:

“[T]he cases Koenig relies on are all limited to situations where a plaintiff failed to timely amend a complaint after a demurrer was sustained, with leave to amend, as to all of the plaintiff’s causes of action.”

He speculated that Meiers might have intended to dismiss the action, under her inherent powers, as a sanction for disobedience of her order to amend the complaint. If that’s what she intended, he said, her action would have been “an abuse of discretion,” explaining:

“Paer’s decision not to amend her FAC was not egregious but reasonable under the circumstances, given applicable principles of law, practice, and logic.”

In a footnote, he discussed the matter of logic, saying:

“The decision not to amend can be a logical one because amending a complaint as to which a demurrer was partially sustained makes the amended complaint subject to additional demurrers, even regarding claims as to which the previous demurrer was overruled….Paer makes precisely that point on appeal to explain why she did not file another amended complaint.”

The case is Paer v. Koenig, B263625.

Paer was represented by La Cañada attorney David A. Cordier. Koenig represented himself.


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