Background
Leroy James Fryer, representing himself, filed an amended complaint against Mohammed Farroq and Howard Chen in January 2023. A proof of service showed Farroq was personally served in July 2023, but the appellate record contained no file-stamped proof of service establishing proper service on Chen. On January 12, 2024, defendants filed a demurrer, generally demurring on government immunity grounds under Government Code sections 820.2 and 845.6 and specially demurring for uncertainty under Code of Civil Procedure section 430.10, subdivision (f). An earlier attempt to file an answer had been rejected because it was captioned as an answer to the original complaint rather than the amended complaint.
The trial court sustained the demurrer on July 3, 2024, with 60 days' leave to amend. Fryer never filed a second amended complaint and did not file an opposition to defendants' ensuing motion to dismiss. On February 18, 2025, the trial court granted the motion and ordered the case dismissed with prejudice, explaining that it had set a 60-day amendment deadline of November 18, 2024. Fryer appealed, and before briefing he filed a motion to correct or augment the record, which the Court of Appeal denied. The court also denied two requests for judicial notice of a copy of a prison mail log and copies of two proofs of service dated June 2, 2025, because those documents were never presented to the trial court and were not material to the dispositive issue.
The Court’s Holding
The court explained that an appealed order is presumed correct and the appellant bears the burden of demonstrating reversible error on the record presented. Although review of a sustained demurrer is de novo when a plaintiff elects not to amend and appeals the ensuing dismissal, that review is limited to issues adequately raised and supported in the brief. Fryer did not contend his amended complaint stated a cause of action, so the court treated any challenge to the merits of the demurrer ruling as forfeited. His primary contention was that the trial court should not have entertained the demurrer because it was filed roughly four months after the responsive pleading deadline, and that the court abused its discretion by rejecting his November 2023 request for entry of default.
The court held that trial courts have discretion to consider untimely demurrers, and Fryer cited no authority showing an abuse of that discretion. Because default had never been entered, defendants remained permitted to file pleadings or motions. The record also showed no indication Fryer opposed either the demurrer or the motion to dismiss on timeliness or default grounds, or at all. Under Code of Civil Procedure section 581, subdivision (f)(2), dismissal was proper because Fryer failed to amend within the time allowed after the demurrer was sustained with leave to amend. The court also rejected Fryer's request to defer ruling based on his pending efforts in the trial court to vacate the rejection of his default request, noting the trial court was divested of jurisdiction over matters embraced in the appeal.
Key Takeaways
- An appellant who elects not to amend after a sustained demurrer may appeal the dismissal, but review is limited to issues adequately raised and supported with reasoned argument and authority in the opening brief.
- Trial courts have discretion to consider untimely demurrers, and a party challenging such a ruling must show the decision exceeded the bounds of reason and resulted in a miscarriage of justice.
- Unless and until default is actually entered, defendants remain permitted to file pleadings or motions, so a rejected default request does not bar a later demurrer.
- Under Code of Civil Procedure section 581, subdivision (f)(2), a trial court properly dismisses a complaint when the plaintiff fails to amend within the time allowed after a demurrer is sustained with leave to amend and either party moves for dismissal.
- Self-represented litigants are held to the same appellate standards as attorneys, including the requirement to support arguments with citations to authority and an adequate record.
Why It Matters
The decision reinforces the practical consequences of failing to amend after a demurrer is sustained with leave to amend: dismissal with prejudice follows under section 581, subdivision (f)(2), and the appellant must then carry the heavy burden of showing reversible error on a sparse record. It also underscores that appellate courts will not take judicial notice of documents never presented to the trial court, particularly when they postdate the challenged order and are not material to the dispositive issue.
The opinion further illustrates that procedural missteps by self-represented plaintiffs—such as failing to file proofs of service, failing to oppose motions, and attaching unfiled documents to appellate briefs—will forfeit arguments and leave the trial court's discretionary rulings intact.
Read the full opinion (PDF) · Court docket