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The California Supreme Court has also stated in a published decision that if a plaintiff fails to amend their complaint against which a demurer has been sustained with leave to amend within the time allowed, the court must strictly construe the complaint and its allegations. Several published decisions of both the California Supreme Court and the Courts of Appeal clearly state that if a plaintiff fails to amend their complaint against which a demurer has been sustained with leave to amend within the time allowed, the court will consider that the plaintiff has essentially admitted that they have stated the case as best as they can. "may dismiss the complaint" when "after a demurrer to a complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal."Ĭalifornia Rule of Court 3.1320(h) states in pertinent part that a defendant may seek dismissal following a plaintiff's failure to amend by way of an ex parte application. You should make an ex parte request to dismiss a complaint or cross-complaint if you are the party that filed a demurrer to a complaint or a cross-complaint which was sustained with leave to amend, and the plaintiff or cross-complainant does not amend their complaint within the time allowed by the court.Ĭode of Civil Procedure section 581(f)(2) states in pertinent part that the court You can do this if you filed a demurrer to a complaint or a cross-complaint which was sustained with leave to amend by the court, and the plaintiff or cross-complainant does not amend their complaint or cross-complaint within the time allowed by the court. In certain situations you can request that the court dismiss a complaint in California by giving notice of your ex parte application. The statutory authorization for dismissing a complaint in California by an ex parte application in Code of Civil Procedure section 581(f)(2) and California Rule of Court 3.1320(h). 16.Dismissing a complaint in California by an ex parte application is the topic of this blog post. If the motion is allowed, or shall be sustained on appeal, it shall in all cases have the force and effect of a verdict of "not guilty." If the motion is refused, the defendant may on appeal, after the jury has rendered its verdict, urge as ground for reversal the trial court's denial of his motion made at the close of all the evidence without the necessity of the defendant's having taken exception to such denial.
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The defendant, however, may make such motion at the conclusion of all the evidence in the case, irrespective of whether or not he made a motion for dismissal or judgment as in case of nonsuit theretofore. If the defendant introduces evidence, he thereby waives any motion for dismissal or judgment as in case of nonsuit which he may have made prior to the introduction of his evidence and cannot urge such prior motion as ground for appeal. If the motion is refused and the defendant does not choose to introduce evidence, the case shall be submitted to the jury as in other cases, and the defendant may on appeal urge as ground for reversal, the trial court's denial of his motion without the necessity of the defendant's having taken exception to such denial. If the motion is allowed, judgment shall be entered accordingly and such judgment shall have the force and effect of a verdict of "not guilty" as to such defendant. When on the trial of any criminal action in the superior or district court, the State has introduced its evidence and rested its case, the defendant may move to dismiss the action, or for judgment as in case of nonsuit.