Stoiber v. Honeychuck, 101 Cal. App. 3d 903 (1980)

Citation: Stoiber v. Honeychuck, 101 Cal. App. 3d 903 (1980)
Parent Document: Stoiber v. Honeychuck, 101 Cal. App. 3d 903 (1980)
Jurisdiction: California (state)
Effective Date: 1980-02-05
Original Source: https://www.courtlistener.com/opinion/2134128/stoiber-v-honeychuck/ ↗

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The position of Ruth Earley with regard to the substantive issues appears at this stage to be identical to the position of her husband William T. Earley, because Ruth was alleged to have owned the property for at least a three-day period during appellant’s tenancy. However, Ruth’s demurrer to the amendment to the second amended complaint was sustained by the trial court on the ground of uncertainty. This was occasioned by a procedural defect in appellant’s pleading. Instead of filing a third amended complaint, appellant merely filed an amendment to the second amended complaint. This was improper. Witkin observes at 3 California Procedure, section 841, pages 2447-2448: “Since the demurrer destroys the complaint as a pleading, the proper course is to file a completely new amended complaint, not an amendment to the old complaint.” Therefore, on remand, appellant should file a third amended complaint including her original allegations and the additional allegations contained in her amendment to the second amended complaint (see Cohen v. Superior Court (1966) 244 Cal.App.2d 650, 655-658 [53 Cal.Rptr. 378]). Conclusion

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