California
Appeals
Standard of Review
 

Standard of Review-Demurrer-Dismissing a complaint after the sustaining  demurrer-Long v. Century Indemnity
 

DISCUSSION

            1.  Standard of Review

            On appeal from an order dismissing a complaint after the sustaining of a demurrer, we independently review the pleading to determine whether the facts alleged state a cause of action under any possible legal theory.  (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967; Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 998.)  We give the complaint a reasonable interpretation, “treat[ing] the demurrer as admitting all material facts properly pleaded,” but do not “assume the truth of contentions, deductions or conclusions of law.”  (Aubry, at p. 967.)  We liberally construe the pleading with a view to substantial justice between the parties.  (§ 452; Kotlar v. Hartford Fire Ins. Co. (2000) 83 Cal.App.4th 1116, 1120.)

            “‘Where the complaint is defective, “[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his [or her] complaint.”’”  (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 970.)  Leave to amend may be granted on appeal even in the absence of a request by the plaintiff to amend the complaint.  (Id. at p. 971; see § 472c, subd. (a).)  We determine whether the plaintiff has shown “in what manner he [or she] can amend [the] complaint and how that amendment will change the legal effect of [the] pleading.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [“plaintiff has the burden of proving that an amendment would cure the defect”].)  “[L]eave to amend should not be granted where . . . amendment would be futile.”  (Vaillette v. Fireman’s Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685.)

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