Legal Question in Appeals and Writs in California

Re: appealability

Generally the case must be resolved of all issues prior to an Appeal. For an opinion as to your particular case, please call me directly at 13619.222.3504.

Re: appealability

I screwed this up once in a discussion in a mediation. If a demurrer is sustained without leave to amend as to less than all causes of action, it is not appealable. You have to either proceed to trial as to the remaining causes of action and appeal from any judgment, or you have to file a petition for a writ of mandate. These are hardly granted, and you would have to show the appellate court that the trial court had deprived you an opportunity to plead a cause of action and a writ should be granted to prevent you from going through the needless expense of trial, appeal, reversal and retrial. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 893.)

If you had multiple defendants, and one or more of the defendants is out of the lawsuit because of the court's sustaining the demurrer as to those causes of action, then you have an appeal, but you do not appeal from the order sustaining the demurrer. You must appeal from the dismissal of the action as to those defendants after the demurrer was sustained without leave to amend.

A good appellate lawyer should be able to scrutinize the order and tell you whether it is appealable or not.

Evidence should not be an issue with a demurrer, unless you are talking about something that your lawyer failed to plead in your complaint. A lawyer who drafts a complaint that exposes a complete defense to a cause of action has the burden of pleading facts that demonstrate that the defense is inapplicable. We call that the duty to plead around the defense.

A demurrer assumes the facts in a complaint are true for the purpose of that demurrer. Evidentiary and extrinsic matters are not considered unless they are properly before the court with judicial notice. If the court did consider evidence out of this parameter, you may have a problem that warrants appellate scrutiny.

Very truly yours,

Re: appealability

Generally speaking, you will need to wait for a judgment on the entire case before filing an appeal challenging the demurrers (unless the case involves multiple defendants, which could alter that rule).

Because you are at the demurrer stage, there normally is no "evidence" introduced at all, so it is not clear from your question what types of matters your attorney did not introduce.

In any event, you cannot raise new evidence for the first time at the Court of Appeal. There should be opportunities remaining at the trial court level, however, to introduce this evidence. Be sure to ask your trial attorney when and how this evidence will be used.

I am a certified appellate law specialist with offices in Santa Barbara and Century City. If you would like more information about your appeal rights, please call or write.

Herb Fox, Esq.

Certified Appellate Law Specialist

15 W. Carrillo Street, Ste 211

Santa Barbara, CA 93101

[email protected]

www.lawyers.com/herbfox

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Re: appealability

If the two remaining causes of action are against the same defendants who demurred to the other four, then the order is not appealable and you will likely have to wait for a judgment. (I have glossed over an important technicality here, but it does not seem relevant to your situation.)

You have the option of petitioning for a writ of mandate from the Court of Appeal. If such a petition succeeds, the appellate court will consider your arguments much sooner than if you present them in an appeal after judgment. Such petitions only succeed in a small fraction of cases, and I cannot tell from the information you have provided whether the option might be worth pursuing.

When you do appeal, you can only base your arguments on the content of the record and on matters which are judicially noticeable. Here again, I would need more information before I could say whether the materials you want to introduce would be fair game.