Can You Appeal an Order Denying Leave to Amend a Complaint?

Timothy Kowal, Esq.
February 23, 2021

Practitioners know that amendments to pleadings are liberally allowed. But every now and then, they are denied. What can you do then?

An order denying leave to amend is not directly appealable. So that's out.

You could try your case on the existing complaint and appeal if you are unsuccessful. But in that case, it would be difficult to establish any error in denying leave was prejudicial – after all, the trier of fact rejected your evidence.

There's always a writ petition. Good luck with that.

The solution: Strategic voluntary dismissal to expedite an appeal. 

In Raza v. Spain (D2d1 2019) No. B278096 (unpublished), plaintiff tried everything he could to get his claims before the trial court. Plaintiff sued for water damage to his home caused by defendant neighbor's negligent landscaping.

First, after his claim for punitive damages had been stricken as "vague and conclusory," plaintiff moved for leave to amend. The trial court denied leave to amend because plaintiff did not explain why the new allegations had not been raised originally (which is not really a valid ground). That order was not appealable.

Next, plaintiff filed a new complaint. Plaintiff moved three times to consolidate the two actions. All denied. Those orders were not appealable either.

Then the trial court granted defendant's motions in limine, excluding plaintiff's evidence. Also not appealable.

So here is what plaintiff did to get his case before the Court of Appeal. Plaintiff requested dismissal with prejudice to facilitate appeal. The trial court granted dismissal. Plaintiff appealed from that dismissal order.

And it worked.

Defendant argued a voluntary dismissal is not an appealable order. And defendant has case law to back him up. “It is well established that a voluntary dismissal under Code of Civil Procedure section 581 is not appealable. ‘The entry [of a request for dismissal] is a ministerial, not a judicial, act, and no appeal lies therefrom.’ (Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120, 108 Cal.Rptr. 782.)” (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975.)

Gutkin goes on to cite Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760–761, which states: “there is no kinship of a voluntary dismissal to a final judgment. A wilful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review rulings on demurrers or motions made prior to the dismissal.”

But to every rule, an exception: "Ordinarily, a plaintiff's voluntary dismissal is deemed to be nonappealable on the theory that dismissal of the action is a ministerial action of the clerk, not a judicial act." (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012.) "However, appellate courts treat a voluntary dismissal with prejudice as an appealable order if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling." (Ibid.; see also Austin v. Valverde (2012) 211 Cal.App.4th 546, 550-551 [" '[M]any courts have allowed appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial court, on the theory the dismissals were not really voluntary, but only done to expedite an appeal' "].)

Here, the Raza court reasoned, plaintiff exhausted all other remedies, and "made clear she [plaintiff's mother became the appellant when plaintiff passed away while the appeal was pending] was requesting dismissal in order to facilitate plaintiff's appellate rights. Thus, the dismissal was " 'not really voluntary' " (Austin v. Valverde, supra, 211 Cal.App.4th at p. 550), and plaintiff is entitled to appeal."

On the merits, the Raza court found the trial court abused its discretion in refusing leave to amend, because "[n]othing about the complaint indicated it was "incapable of amendment.""

Keep the Raza analysis and authorities handy if ever you have a trial judge preventing you from alleging key aspects of your client's case.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.