The choice between amending a complaint and appealing a demurrer can be challenging

There have been instances in litigation where my confidence in a legal position has tempted me to eschew the filing of an amended complaint in favor of appealing an order sustaining a demurrer.  Thus far, I haven't chosen to bypass an occasion to amend, but I've been very close.  Today, the Court of Appeal (Second Appellate District, Division Three) offers a reminder that such a choice can have substantial consequences, holding, in Las Lomas Land Company, LLC v. City of Los Angeles (September 18, 2009), that "having expressly declined an opportunity to amend its pleading in the trial court, Las Lomas cannot seek leave to amend for the first time on appeal."  Slip op. at 2.

As an aside, the subject matter of this case, a dispute over a rejected land development project, doesn't necessarily have much to do with this blog, aside from the fact that a multi-million dollar dispute over a land development project is decidedly more "complex" than your average civil lawsuit.  But the issue presented at the end of the opinion, the waiver of the right to amend, can surface anywhere, and procedural wrinkles like this interest me.

The Court summarized the law governing when a right to amend is not waived:

The sustaining of a demurrer without leave to amend is an abuse of discretion if there is a reasonable possibility that the defect could be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The burden is on the plaintiff to show in what manner the pleading could be amended and how the amendment would change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The failure to request leave to amend in the trial court ordinarily does not prevent a plaintiff from making such a request for the first time on appeal. (Code Civ. Proc., § 472c, subd. (a); Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)

Slip op., at 30-31, fn. omitted.  But it doesn't work that way when a potential amendment is possible:

The general rule allowing a plaintiff to request leave to amend for the first time on appeal does not apply, however, if the trial court sustains a demurrer with leave to amend and the plaintiff elects not to amend the pleading. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.) In those circumstances, " 'it must be presumed that the plaintiff has stated as strong a case as he can.' " (Ibid.)  The trial court here did not enter an order sustaining the demurrer with leave to amend, but instead asked whether Las Lomas was requesting leave to amend.  By answering "No," counsel for Las Lomas expressly declined an opportunity to amend the pleading just as surely as if the court had granted leave to amend and Las Lomas had elected not to do so.  In our view, the result should be the same. We therefore conclude that Las Lomas forfeited its claim of error based on the denial of leave to amend and deny the motion for leave to amend its petition and complaint.

Slip op., at 31, fn. omitted.  Now, it may very well be the case that you want to frame an issue for appellate review in a specific way and decline an opportunity to amend for that very purpose.  Just be sure you intend the consequences if you pass on a chance to amend a complaint.