Can a plaintiff avoid demurrer by pleading facts in an amended complaint that contradict or omit, harmful allegations pleaded in a previous complaint?
California, United States of America
The following excerpt is from City of Coachella v. Ins. Co. of the W., G050279 (Cal. App. 2014):
A plaintiff may not avoid a demurrer by pleading facts in an amended complaint that contradict or omit, harmful allegations pleaded in a previous complaint (State of California ex rel. v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412), unless the plaintiff provides a satisfactory explanation (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 426 (Deveny)). For example, in Kenworthy v. Brown (1967) 248 Cal.App.2d 298, the plaintiffs could not avoid the defendants' demurrer based on the statute of limitations simply by omitting exact dates from their amended complaint. (Id. at pp. 300, 302.) "Absent an explanation for the inconsistency, a court will read the original defect into the amended complaint, rendering it vulnerable to demurrer again." (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044.)
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