Metropolitan News-Enterprise


Tuesday, September 21, 2021


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Justices Differ Over Demurrers in Declaratory Relief Actions

Majority: It’s the ‘Incorrect Procedural Vehicle’ for Gaining the Sought-After Declaration

Wiley’s Concurring Opinion: If Facts Are Not in Dispute, It’s ‘the Right Way to Go’


By a MetNews Staff Writer


A demurrer is an improper vehicle for determining the validity of an action for declaratory relief, the Court of Appeal for this district held yesterday, in a 2-1 opinion, but, given that the complaint, on its face, showed that the plaintiff’s position lacked merit, rather than reversing the judgment of dismissal that followed the sustaining of a demurrer without leave to amend, it ordered entry of judgment on the merits in favor of the defendants.

In a concurring opinion, Justice John Shepard Wiley Jr. maintained that where the facts are not in dispute, a demurrer is the best means of speedily resolving the dispute. In support of that proposition, he recalled the resolution of much publicized litigation in the 1960s over whether “Tropic of Cancer” could be banned as pornography, as advocated by Los Angeles’s city attorney.

Yesterday’s Court of Appeal decision came in litigation brought by Eden Darwish, David Darwish, and Barbara Darwish, and Eden Darwish’s company Nede Management, Inc. They were defendants in a lawsuit stemming from a fire on their premises, resulting in the death of one person and injuries to others. and sought a declaration that a conflict existed with their insurer, Aspen American Insurance Co., and the underwriter, Deans & Homer (“D&H”), entitling them to be provided with independent counsel, pursuant to Civil Code §2860.

Seeing no conflict, then-Los Angeles Superior Court Judge Patricia D. Nieto (now retired) sustained a demurrer without leave to amend.

Ohta’s Opinion

Writing for Div. Eight of the appeals court, Los Angeles Superior Court Judge Sam Otah, serving on assignment, said the demurrer should have been overruled, but that no harm was done, explaining:

“We conclude the demurrer was the incorrect procedural vehicle to resolve the Darwish family’s declaratory judgment claim against Aspen and D&H. However, the Darwish family suffered no prejudice because the second amended complaint (SAC) did not allege a conflict of interest entitling them to independent counsel pursuant to section 2860 as a matter of law. We will therefore modify the judgment to declare the rights adverse to the Darwish family and affirm.”

Acting Presiding Justice Maria E. Stratton joined in Ohta’s opinion.

Wiley’s View

Wiley concurred in the result, but differed with the reasoning, saying:

“I write to attack the notion there is something improper about resolving a suit for declaratory judgment on demurrer. There is not. So long as the parties agree the declaratory judgment complaint serviceably states the facts, a demurrer is the speedy and efficient way to resolve an ‘actual controversy.’…Appellate courts should praise, not disparage, this procedure.”

If the facts are in dispute, he said, a trier of facts must resolve that dispute but where, as in the present case, no factual dispute exists, there is no impediment to reaching the merits at the demurrer stage. Wiley set forth:

“In declaratory judgment cases, dispute over the facts may be common….What divided the parties was a pure and ripe question of law: whether Civil Code section 2860 entitled the Darwish family to independent counsel. The trial court, and now the Court of Appeal, have declared the answer to this legal question. A demurrer thus was the right way to go.

“The demurrer procedure in this case was appropriate and sensible. Of the procedural alternatives, the demurrer was the fastest way to resolve the only issue in this case. Other alternatives—summary judgment or full trial—would have been slower. They would have cost more resources but yielded no more benefit.”

Such approaches, he asserted, would be founded on “irrationality.”

‘Tropic of Cancer’

Wiley recalled the declaratory relief action brought by bookseller Jacob Zeitlin against then-Los Angeles City Attorney Roger Arnebergh (since deceased) to establish that he would not be subject to prosecution under Penal Code §311 as a purveyor of obscene matter. A Los Angeles Superior Court judge read the book, proclaimed it to be pornographic, and sustained a demurrer without leave to amend, with a judgment of dismissal following.

Div. One of the Court of Appeal for this district, in an opinion by Justice Mildred L. Lillie of Div. One (later presiding justice of Div. Seven and now deceased), affirmed on Dec. 18, 1962, saying:

 “[W]e hold that the subject book is obscene and therefore violative of section 311.2, Penal Code….[T]he trial court properly sustained the demurrer without leave to amend.”

The California Supreme Court on July 2, 1963 reversed the judgment of dismissal in a unanimous opinion by Justice Mathew Tobriner (since deceased), holding that the work was not pornographic. Approving the use of a demurrer, Tobriner said:


Above is a headline in the Oct. 11, 1961 edition of the Los Angeles Times. The article began: “City Atty. Roger Arnebergh, flanked by the police vice squad, rode at the head of a new crusade Tuesday against a book which was recently allowed in this country after 27 years of exile. [¶] Target of the city attorney’s indignation and the vice squad's vigilance was Henry Miller’s ‘Tropic of Cancer,’ for years one of the liveliest items in the bookstalls of Paris. [¶] Arnebergh labeled the book ‘latrine literature’ without literary value, and indicated his office would go to court to prove it obscene and scourge it from the shelves of Los Angeles bookstores.”


“Since plaintiffs set forth facts showing the existence of an actual controversy and have requested that these rights be adjudged by the court in a matter in which the court is competent to grant declaratory relief, they have stated a legally sufficient complaint. Upon presentation of such complaint, a plaintiff is entitled to a declaration of his rights, whether the declaration be favorable or adverse; thus in the instant case the trial court's order sustaining the demurrer and its dismissal of the action cannot be upheld upon the ground that plaintiffs pursued the wrong kind of action.”

The U.S. Supreme Court on Dec. 16, 1963 denied the City of Los Angeles’s petition for certiorari.

Wiley commented in yesterday’s concurring opinion”

“After Zeitlin, it is legally wrong to say the demurrer procedure is an inappropriate method for testing the merits of a declaratory relief action. Some more recent authorities thus err….

“This means there is no reason to accuse a thoughtful trial court like this one of error of any kind.”

He said that “[a]s a practical matter,” the judgment of dismissal in the case “was a declaratory judgment, for the judgment embodied the preceding statement of decision that was its rationale,” suggesting:

“It might be a good practice for a trial court, after ruling on a decisive demurrer in a declaratory judgment action, to cut and paste the court’s substantive legal analysis into the judgment itself, rather than leaving that substance in a separate minute order or a statement of decision.”

The jurist declared:

“Trial courts should, as this one did, take up the actual controversies on demurrer and give the parties what they want and deserve:  an authoritative answer to a legal question that divides them.  This will serve the parties, the public, and the cause of justice.”

The case is Nede Management, Inc. v. Aspen American Ins. Co., 2021 S.O.S. 5194.

Beverly Hills attorney Michael N. Sofris of Action Legal Team and Miami lawyer Philip H. Stillman represented the Darwish family. Acting for the insurance company and the underwriter were Robert A. Olson and Eleanor S. Ruth of Los Angeles’s Miracle Mile firm of Greines, Martin, Stein & Richland and David Borovsky of the Emeryville firm of BHC Law Group.


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