Legal Question in Appeals and Writs in California
Can new evidence be introduced on appeal, to prove that the plaintiff could have amended his complaint to state a cause of action, not subject to the one-year limitation period contained in the applicable insurance contract. The evidence to be presented are letters proving tolling and that support a written denial letter after the alleged one-year limitation period.
Defendant alleges a judicial admission of a denial in May 2007, when the written denial letter is dated Aug. 28, 2008.
2 Answers from Attorneys
NO.
You can't present new evidence on appeal, but there is a special rule regarding appeals from a demurrer ruling.
On appeal, the burden falls upon the plaintiff to show what facts he or she could plead to cure the existing defects in the complaint. "To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts esablish a cause of action." (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727.)
A demurrer test the sufficiency of the complaint, not the ability to prove the allegations. For the purpose of the demurrer, the properly plead facts in the complaint are presumed to be true. So the big issue here is why the facts giving rise to the tolling were not alleged in the complaint, rather than an issue of whether you had evidence to support those facts.
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