Hello. I am looking to find what criteria a court will use when deciding to dismiss a case either with or without prejudice. I am the Plaintiff, and the Defendant demurred to my complaint and the court sustained her demurrer against all causes of action, without leave to amend. I received a proposed order from defense counsel, but all it asks for is the dismissal of the case. Will the court simply dismiss, and not state whether or not it is with or without prejudice? Is this something that the court decides itself? Is that is the case, what are the criteria it uses to make said decision? Thank you in advance.
The [Proposed] Order was likely prepared by the D whose demurrer was sustained without leave to amend. When a demurrer is sustained without leave to amend then it is most likely a case should be dismissed with prejudice. If the [Proposed] Order does not specify this then, in my legally considered opinion, the defense made an error.
When a demurrer is sustained without leave to amend it means that a judge has made the legal determination that no matter what facts you add to or delete from your Complaint you will never be able to state a cognizable cause of action enough for you to have the right to litigate your purported dispute.
Even if a dismissal were technically without prejudice and you tried to start a new lawsuit, it is most likely that the prior ruling sustaining the demurrer without leave to amend would be deemed "res judicata". Res judicata means, effectively, "the thing has been decided". The law likes finality and loathes inconsistent outcomes. Therefore, I would expect any new Complaint based on the same set of facts and circumstances and involving the same parties to the first litigation would be subject to attack based on res judicata. Therefore, in my legally considered opinion, whether or not the dismissal says with or without prejudice, the ruling on the demurrer means your claim cannot be revived.
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A case is dismissed "without prejudice" if there is still something left of the case to fight about. In other words, it can still be resurrected. Thus, you can amend or re-file the case in the appropriate court if it was dismissed for jurisdictional issues or venue.
If the court believes the complaint does not state a cause of action and further believes that you can amend it to state a cause of action, then the court will sustain the demurrer without leave to amend and the case is "dismissed with prejudice."
One more thing to note is that the demurrer ruling is not an appealable order under Code of Civil Procedure S. 581(d.) So, in order for the court to give you and order that you can take an appeal from, the order sustaining the demurrer without leave to amend must say that the case is dismissed or the court must enter a separate judgment of dismissal.
Since it appears that the court did not enter a judgment of dismissal on its own and did not state that the case was dismissed, the defense attorney in your case did the proper thing by requesting a dismissal. Your time to appeal starts running once the dismissal is entered.
You may want to consult a lawyer near you to see if there are other claims you can file and how best to protect your interests. Once a dismissal is entered, the defendant will most likely seek costs against you.
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