Can a plaintiff amend or amend a demurrer in a medical malpractice action?
California, United States of America
The following excerpt is from Das v. Bank Of Am., B221002, No. VC053211 (Cal. App. 2010):
The remaining question is whether the demurrers were properly sustained without leave to amend. Because appellant has effectively received one opportunity to amend her complaint and she has not suggested on appeal how she would amend if given the opportunity, we discern no abuse of discretion. As explained in Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 44, "[t]he burden of showing that a reasonable possibility exists that amendment can cure the defects remains with the plaintiff; neither the trial court nor this court will rewrite a complaint. [Citation.] Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend. [Citations.]"
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The judgment is affirmed. Respondent is awarded its costs on appeal.
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