Lingsch v. Savage - 213 Cal. App. 2d 729 (1963)

Rule:

In the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. This is particularly so in the case of an original complaint

Facts:

Appellant buyers brought an action against respondents, the sellers of real property and the real estate broker, arguing that the respondents knew that the building was in a state of disrepair, that units contained therein were illegal, and that the building had been placed for condemnation by the proper officials. Respondent real estate broker argued in his demurrer that the buyers' complaint failed to state facts sufficient to constitute a cause of action and he attacked the legal sufficiency of the facts pleaded on the ground that the buyers offered to purchase the property "as is" and expressly agreed that there were no representations. The lower court granted the demurrer without leave to amend. Appellant buyers appealed. 

Issue:

Was it proper to grant the respondent’s demurrer without leave to amend? 

Answer:

No.

Conclusion:

The court reversed the judgment in favor of the real estate broker and ordered the lower court to grant the buyers a reasonable time to prepare, serve, and file an amended complaint. The court held that great liberality should be exercised in permitting the buyers to amend their complaint. The court held that it constituted an abuse of discretion to sustain a demurrer without leave to amend if there was a reasonable possibility that the defect could be cured by amendment.