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District Court of Appeal, First District, Division 2, California.

ROLLEY, Inc., Plaintiff and Appellant, v. MERLE NORMAN COSMETICS, Inc., a corporation, et al., Defendants and Respondents.

Civ. 16101.

Decided: January 28, 1955

Harry Gottesfeld and Joseph A. Brown, San Francisco, for appellant. Littler, Lauritzen & Mendelson, San Francisco, for respondents.

In its petition for rehearing counsel for appellant frankly admits that the opinion of this court is correct. 278 P.2d 63. It admits that its third amended complaint does not state a cause of action. It asks as to grant a rehearing to consider the question whether the demurrer to its second amended complaint was properly sustained. Two ready reasons for denying the petition suggest themselves.

1. This matter is presented for the first time on petition for rehearing. ‘Appellate courts cannot submit to piece-meal argument and will not consider on petition for rehearing questions not previously raised.’ Bradley v. Bradley, 94 Cal.App.2d 310, 312, 210 P.2d 537, 211 P.2d 638 and cases cited.

2. The court on appeal will not consider the sufficiency of a superseded complaint where the plaintiff has amended it after demurrer sustained. Sheehy v. Roman Catholic Archbishop, 49 Cal.App.2d 537, 540–541, 122 P.2d 60; Metzenbaum v. Metzenbaum, 86 Cal.App.2d 750, 752, 195 P.2d 492; Pearson v. Parsons, 173 Cal. 336, 159 P. 1173; Schneider v. Brown, 85 Cal. 205, 206, 24 P. 715.

The petition for rehearing is denied.


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