Golfer is in a dispute with his Country Club over dues. Golfer
cross-claimed against the Club and its Current and Former Owners. While Former
Owners’ demurrer to Golfer’s first amended cross-claim was pending, Golfer filed
a second amended cross-claim, without seeking leave to do so. The trial court struck the SACC. It
then granted the demurrer to the FACC, without leave, except as to a claim for
declaratory relief. The trial court later granted Former Owners judgment on
the pleadings on the dec. relief claim, finding that it was moot. Golfer
appealed. The trial court then denied Golfer’s request to stay the case as to
the claims as to the Club and the Current Owners pending appeal.
There’s a threshold about appealability. Although the
rulings ended Golfer’s litigation as to Former Owners, the trial court
never entered a judgment to that effect. Either party could have moved ex parte to
convert the demurrer granted without leave to a dismissal under Code of Civil
Procedure § 581(f)(1), which then becomes a judgment under § 581d. Since
the parties could have readily done that, even if they didn’t, and nobody objects to the court
reaching the merits, the court deems the granted demurrer to be an effective
dismissal and judgment. That logic, however, does not extend to the claims of the
Club and Current Owner which are still pending in the trial court. So the court lacks jurisdiction to reach the denial of
the stay.
The merits issue comes down to whether Golfer could file
the SACC as a matter of right under § 472. That statute permits a party to “amend
its pleading once without leave of court,” including after a demurrer has been
filed but before the opposition is due. But Golfer had already amended his
complaint once. The demurrer was to the FACC, not the original counterclaim. Golfer
nonetheless argues that “pleading” in § 472 means each iteration of a pleading. As generally used in the code,
however, pleading refers to generic kinds of pleadings—complaint, answer,
cross-complaint—and not to iterative versions thereof. Also, were Golfer
correct, a plaintiff could indefinitely put off a demurrer by repeatedly
amending in lieu of filing an opposition. Thus, as Golfer needed leave of court
to amend his pleading further and he never sought it, the trial court correctly struck the SACC.
Nor did the court err in granting the demurrer to the FACC
without leave to amend. To reverse that, Golfer needs to point out some
additional allegations that could be added to make the pertinent cause of
action viable. He doesn’t do so.
Affirmed.
No comments:
Post a Comment