Following Demurrer Ruling, Plaintiff Voluntary Dismisses Claims to Expedite Appeal, but Dismisses Without Prejudice: Appeal Dismissed

Timothy Kowal, Esq.
August 10, 2021

Nine out of every ten appeals are pretty straightforward, simply appealing from a judgment after a trial. But every tenth appeal or so is a headscratcher. This happens a lot in the case of interlocutory orders – critical orders like demurrers and preliminary injunctions that occur before a final judgment. These can devastate the case, yet evade direct appellate review.

(Another place complications abound in post-order motions. Like the denial of a motion for reconsideration. (Do not appeal that order, appeal the underlying order.) Or the denial of a new trial motion. (Also not itself appealable, unless it is only partially denied, in which case, appeal the partial grant.)

There are strategies available to get direct appellate review of certain interlocutory orders. But they should be used with caution.

In the racial discrimination case of Brown v. Arizona Diamondbacks (D3 Aug. 9, 2021) no. C091629 (nonpub. opn.), the trial court sustained the Diamondbacks' demurrer to the plaintiff's claim for racial harassment. The court ruled the minor league clubhouse manager had failed to allege the Diamondbacks were his employer, but gave him leave to amend.

The plaintiff chose not to amend his complaint to allege an employment relationship. (Apparently he wanted to argue the statute, Government Code section 12940, did not limit liability to employers but also covered "any other person" who harasses on the basis of race.) So the plaintiff decided to stand on his pleading and appeal. To do that, he dismissed his racial harassment claim, and then when the other FEHA and UCL claims were dismissed on summary judgment, the plaintiff appealed.

While a Plaintiff Facing a Ruling Sustaining a Demurrer May Choose to Stand on the Complaint and Challenge the Demurrer Ruling on Appeal, the Plaintiff Must Dismiss With Prejudice:

The plaintiff's strategy almost worked. But only almost.

First, as he was aware, an order sustaining a demurrer is not an appealable order. (Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1073, fn. 1.) The appeal must be taken from the ensuing judgment of dismissal. (Ibid.)

Second, as the plaintiff also was aware, faced with an order sustaining a demurrer, he was not forced to endure repeated cycles of amending and defending against more demurrers. If he was satisfied with his pleading, he was entitled to stand on the allegations and challenge the demurrer ruling on appeal. “When a demurrer is sustained with leave to amend, and the plaintiff chooses not to amend but to stand on the complaint, an appeal from the ensuing dismissal order may challenge the validity of the intermediate ruling sustaining the demurrer. [Citation.] On the other hand, where the plaintiff chooses to amend, any error in the sustaining of the demurrer is ordinarily waived.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312.)

But here is where the plaintiff made a critical miscalculation: When he chose to stand on his complaint and take the challenge to the Court of Appeal, he was required to dismiss his claims with prejudice.

The plaintiff urged that the cases allowed him to voluntarily dismiss to expedite his appeal. And that is correct: Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790, 793 [“many courts have allowed appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial court, on the theory that the dismissals were not really voluntary, but only done to expedite an appeal”]; see also Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012 [“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”].

But the voluntary dismissal to expedite the appeal must be with prejudiceGutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975 [“Because Gutkin dismissed his remaining claims in this case without prejudice, the voluntary dismissal could not have the legal effect of a final judgment, and could not serve to expedite an appeal. By voluntarily dismissing the action without prejudice, Gutkin lost his ability to challenge the trial court's interim orders”].

(Gutkin was also discussed in this article about appealing an order denying a motion for leave to file a cross-complaint.)

Parties who are considering strategic maneuvers to expedite an appeal, or other less-than-straightforward paths to appeal, would do well to consult appellate counsel.

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 His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

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