When a court sustains a demurrer without leave to amend, what is the burden of proving that the amendment would cure the defect?

California, United States of America


The following excerpt is from Francis v. Schwarzenegger, C052821 (Cal. App. 4/23/2007), C052821 (Cal. App. 2007):

When, as here, a court sustains a demurrer without leave to amend, "we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect." (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.)

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