The Home Depot, Inc.

California Court of Appeal, Fourth Appellate District, Division Two · 2018 · Labor Law

Labor LawCivil ProcedureMisjoinderLeave to Amendmisjoinderdemurrerleave to amendappeal

Facts

Jensen and Kerr filed a first amended complaint against their former employer and managers alleging disability discrimination, wrongful termination, and related claims. Defendants demurred, arguing the two plaintiffs were misjoined because their claims did not arise from the same transaction and did not present common issues of fact or law. The trial court sustained the demurrer without leave to amend and later dismissed the action with prejudice. On appeal, Kerr was dismissed as a party, leaving Jensen as the sole plaintiff.

Issue

When a trial court sustains a demurrer for misjoinder without leave to amend and dismisses the action, should the dismissal be reversed where, on appeal, the misjoinder problem has been cured by removal of the misjoined plaintiff? Also, is the appeal moot once the misjoined plaintiff has been dismissed?

Rule

It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the complaint can be amended to state a valid cause of action, and a request for leave to amend may be made for the first time on appeal. Misjoinder may be cured by amendment removing a party, and once the misjoinder defect is cured, the action may proceed.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In San Diego, two former warehouse employees sued Harbor Mesa Supply and several supervisors in one complaint based on separate medical-leave disputes occurring months apart. The trial court sustained a demurrer for misjoinder without leave to amend and entered dismissal after the employees filed no opposition explaining how the defect could be cured.

On appeal, one employee asks for leave to amend by dismissing the other employee from the action. Which is the best result?

Explanation. A plaintiff may request leave to amend for the first time on appeal. If the misjoinder defect can be cured by amendment removing a party, there is a reasonable possibility the action may proceed, so dismissal should be reversed to allow that amendment. The appellate analysis focuses on whether effective relief remains available, not on requiring a prior trial-court request.