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California
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Standard of Review-Demurrer
(Milligan v. Golden Gate Bridge)

Appeal-Demurrer Without Leave to Amend-New Evidence Considered Re Possible Amendment
(Milligan v. Golden Gate Bridge)

[2]          The Bridge District filed three motions while this case was being briefed.  We deferred ruling on the motions until we could reach the merits of the appeal.  Having now considered the motions, we rule as follows:

            The Bridge District’s motions to strike portions of appellant’s opening and reply briefs that reiterate facts contained in a recent New Yorker magazine article are denied.

            As a general rule, on appeal we only consider evidence that was presented to the trial court in the first instance.  (Cf. Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325.)  However, this is an appeal from the trial court’s decision to sustain a demurrer without leave to amend.  On such an appeal, the plaintiff bears the burden of showing the trial court abused its discretion because there is a reasonable possibility the plaintiff could amend the complaint to state a cause of action.  (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)  Such a showing may be made based on evidence that is presented for the first time in the appellate court.  (Ibid.)  Here, we will consider the facts appellant cites when deciding whether there is a reasonable possibility appellant could amend her complaint.  We note, however, that we have not been asked to and we are not taking judicial notice of the truth of those facts.

            The Bridge District has also asked us to take judicial notice of an unpublished memorandum order issued by the United States District Court in a case appellant filed.  The Bridge District has failed to demonstrate how that decision would be relevant to our analysis.  Therefore judicial notice is denied.  (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)


Milligan v. Golden Gate Bridge A102843 (Ed. Note: See footnote 2 of opinion.)

 

Jun 30 2004

A102843 [PDF] [DOC]

Milligan v. Golden Gate Bridge etc. 6/4/04 CA1/5

California: Authoritative-Law Dictionary: Table of Contents    
Demurrer-Grounds-Failure to Plead -Exhaustion Administrative Remedires-(Shuer v. Co.San Diego)   
Demurrer, Standard of Review-Demurrer (Coldwell Banker v. Super. Ct.)  
Demurrer-Standard of Review-Demurrer-(WOLA)-(Shuer v. Co. of San Diego)   
Demurrer, Standard of Review-Demurrer Without Leave to Amend-(Liska v. Arns Law Firm)  

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