Unilateral SACC Gets the Sack

Hedwall v. PCMV, LLC, No. B282111 (D2d4 Apr. 19, 2018)

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.