Ellerhorst v. Blankman

California Court of Appeal Nov 21, 1929 No. Docket Nos. 7009, 7123.Published

Before: Nourse

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Holding. The court held that the trial court did not abuse its discretion in sustaining demurrers without leave to amend where the plaintiffs' pleadings were sham and failed to allege facts supporting claims of fraud, and where the plaintiffs failed to present a proposed amendment or demonstrate that the pleading could be cured.

Issues

Whether the trial court erred in sustaining demurrers without leave to amend to a complaint alleging corporate mismanagement.
Whether the trial court abused its discretion in denying a motion for leave to amend under section 473 of the Code of Civil Procedure.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The pleading is a jumble of innuendoes and legal conclusions with unverified allegations of conspiracy and fraud, but without any allegations of facts from which these conclusions are drawn.”

“The amendments were manifestly sham and not made in good faith.”

“The appellants did not present with their motion-a proposed amendment to the complaint, as they are required to do under section 473 of the Code of Civil Procedure”

NOURSE, J.

Plaintiffs sued for damages on a complaint charging mismanagement of the affairs of a corporation in which they were stockholders. But two of the defendants— Curry and McKannay—were served with process. Their demurrer to the complaint was sustained. An amended complaint was filed. Their demurrer to this complaint was also sustained. A second amended complaint was then filed. Their demurrer was sustained without leave to amend and judgment was entered for these defendants. Thereafter plaintiffs moved under section 473 of the Code of Civil Procedure for leave to further amend. Their motion was denied. Two appeals were taken- and are presented here on the same record—one from the judgment and one from the order denying leave to amend.

The opening brief of appellants consists of a reprint of their second amended complaint, the demurrer of the two defendants, and affidavit of counsel used on the motion for leave to amend and some of the oral testimony taken on that hearing. The appellants do not, either by argument or citation of authority, make any effort to support their pleading. All they say is that it is sufficient against the demurrer “and if not it could be amended.” The pleading is a jumble of innuendoes and legal conclusions with unverified allegations of conspiracy and fraud, but without any allegations of facts from which these conclusions are drawn. The demurrers to all the complaints were both general and special. The special demurrers pointed out the uncertainty of these charges of fraud which were not based upon any verified allegation of fact. The amendments were manifestly sham and not made in good faith. Ample opportunity having been given appellants to amend in these particulars there was no abuse of discretion in refusing leave to further amend.

We are not unmindful of the authorities holding that ordinarily leave to amend should be granted when the demurrer is special and an amendment can readily be made. But when leave has been granted and the amendment is, sham and ineffectual the trial court should not be required to grant fur

[135]

ther indulgence.

(Loeffler

Wright,

Ellerhorst v. Blankman

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NOURSE, J.

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