California Court of Appeal, Fox Paine & Company, LLC v. Twin City Fire Insurance Company, A168803

Demurrer

 

Dismissal

 

California Law

 

 

 

 

(…) We set forth the governing principles in Chiatello v. City & County of San Francisco (2010) 189 Cal.App.4th 472, 480: “‘Because this case comes to us on a demurrer for failure to state a cause of action, we accept as true the well pleaded allegations in plaintiffs’ third amended complaint. “‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]”’ We likewise accept facts that are reasonably implied or may be inferred from the complaint’s express allegations.’ [Citations.] ‘“‘A demurrer tests the legal sufficiency of the complaint . . ..’ [Citations.] On appeal from a dismissal after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law. [Citations.] When the trial court sustains a demurrer without leave to amend, we must also consider whether the complaint might state a cause of action if a defect could reasonably be cured by amendment. If the defect can be cured, then the judgment of dismissal must be reversed to allow the plaintiff the opportunity to do so. The plaintiff bears the burden of demonstrating a reasonable possibility to cure any defect by amendment.”’” In 2021, we added this: “We also assume the attachments to the complaint are true, and they take precedence over any conflicting allegations in the TAC. [Citation.] Finally we ‘will affirm if there is any ground on which the demurrer can properly be sustained, whether or not the trial court relied on proper grounds or the defendant asserted a proper ground in the trial court proceedings.” (George v. eBay, Inc. (2021) 71 Cal.App.5th 620, 628 (George).)

 

Although we review the complaint de novo, the plaintiff has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action and overcoming all of the legal grounds on which the trial court sustained the demurrer. If the defendant negates any essential element, we will affirm the order sustaining the demurrer as to the cause of action. [Citation]. Kahan v. City of Richmond (2019) 35 Cal.App.5th 721, 730 (Kahan).)

 

 

 

 

 

California Court of Appeal, Sept. 5, 2024, Fox Paine & Company, LLC v. Twin City Fire Insurance Company, A168803, Certified for Publication)