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How do I dismiss a case after my demurrer is sustained without leave to amend?

San Francisco, CA |

There was a demurrer hearing that ended with the court taking my demurrer under submission. A few weeks later it issued an order sustaining my demurrer without leave to amend saying plaintiff failed to prove a reasonable possibility of amendment. (it didn't mention to any particular causes of action so i assume it is for the entire complaint) I filed and served an entry of order on the other party. What happens now? Do I need to take any sort of action to dismiss the case? The court's order didn't ask either side to prepare judgment, etc. I'm concerned if I do nothing the other party might try to have this order sustaining my demurrer set aside, is that possible?

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Attorney answers 3


There should be a minute order in the file which accurately states that the demurrer was sustained without leave to amend. However, normally, after prevailing on a demurrer where it is without leave to amend, the prevailing party will submit a proposed Judgment. You may wish to call the clerk in the department where the demurrer was sustained to determine precisely how she wants to handle it, but normally the prevailing party would go ahead and file a proposed Judgment. Then, you will have a judgment for dismissal awarding you costs.

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I agree with Mr. Mann. Normally, the moving party prepares the order/judgment for the judge's signature. You want to do that because until their is a judgment of dismissal the time to appeal does not start to run.

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the prevailing party will have the court sign an order and if the demurrer is sustained as to all causes of action then a proposed judgment.