California, United States of America
The following excerpt is from Leyva v. Garcia, 231 Cal.Rptr.3d 814 (Cal. App. 2018):
In this case, there is nothing in the record to suggest plaintiffs ever sought leave to amend. Instead, plaintiffs merely offered argument to the effect defendant may have failed to warn. Under the circumstances, plaintiffs' opposition did not meet their burden of demonstrating a triable issue of material fact under the negligence causes of action actually alleged in the pleadings. (See Aleksick v. 7-Eleven , Inc ., supra , 205 Cal.App.4th at p. 1186, 140 Cal.Rptr.3d 796 [motion properly granted where opposing party merely offered argument in written opposition relating to unpled theory].) Thus, the motion was properly granted by the trial court.
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