Can you appeal an order sustaining a demurrer as to less than all causes of action? No—if there is still a cause of action hanging around, the order does not satisfy the one-final-judgment rule.
But if the order sustaining the demurrer would result in a “needless and expensive trial and reversal,” then the order may be reviewed on a petition for writ of mandate.
But there was still one more problem with the homeowner’s association’s writ petition in River’s Side at Washington Square Homeowners Ass’n v. Superior Court (D3 Mar. 6, 2023 no. C095860) 2023 WL 2364423. After the trial court sustained the defendants’ demurrer on the HOA’s construction defects claims on standing grounds, the HOA filed an unsuccessful motion for reconsideration. By the time the HOA filed its writ petition, it had been 95 days since the notice of entry of the order, and 33 days after the order denying reconsideration.
So the writ petition was untimely, right? And appellate deadlines are jurisdictional, right?
No, not on writ petitions. The delay was not unreasonable.
One more useful bit from the case: Another reason the Court of Appeal readily granted writ review was that the Superior Court certified its order sustaining the demurrer under Code of Civil Procedure section 166.1, indicating that the threshold standing issue “raises a controlling question of law as to which there are substantial grounds for difference of opinion, and there was virtually no chance the case would settle until that issue is resolved.”
This factored in the Court of Appeal’s analysis in granting writ review.
If a key question of law is involved in an interlocutory order denying a demurrer, motion for judgment on the pleadings, or motion for summary judgment, consider asking the trial court to certify the question for review. You might entice the trial judge further if resolution of the issue would facilitate a settlement.