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District Court of Appeal, Second District, Division 1, California.

MORRO PALISADES COMPANY, Plaintiff and Appellant, v. The HARTFORD ACCIDENT AND INDEMNITY COMPANY and Ralph R. Westfall, Defendants and Respondents.*

Civ. 23251.

Decided: January 05, 1959

Charles E. Ogle, Morro Bay, for appellant. A. H. Brazil, San Louis Obispo, for respondents.

This is an appeal from a judgment of dismissal filed subsequent to a minute order sustaining an amended demurrer without leave to amend.

No amendments had been filed to the initial complaint, which was for damages on a faithful performance bond and for reformation of said bond. Plaintiff and appellant Morro Palisades Company instituted the action as assignee of the County of San Luis Obispo, against The Hartford Accident and Indemnity Company as surety on a faithful performance bond and against Ralph R. Westfall as principal. The bond was to assure that Westfall would improve all of the streets and roads situate within a certain tract as shown on a certain map which was accepted by ordinance adopted by the Board of Supervisors of the County of San Louis Obispo.

In the amended demurrer it was contended that the compaint did not state sufficient facts to constitute a cause of action; that the complaint is defective in that it appears on the face thereof that the said complaint has been prematurely filed; and that the complaint was uncertain in various particulars.

The order of dismissal specified that ‘the complaint does not state facts fufficient to constitute a cause of action and it appears therefrom as a matter of law that a cause of action could not be pled.’

The original complaint unquestionably is uncertain in various of the particulars specified, and in our opinion the trial court properly sustained the amended demurrer. Whether the trial court abused its discretion in sustaining the amended demurrer without leave to amend is a more difficult problem.

‘The general rule is that it is an abuse of discretion to sustain without leave to amend a demurrer to an original complaint unless the complaint shows on its face that it is incapable of amendment. Temescal Water Co. v. Department of Public Works, 44 Cal.2d 90, 107, 280 P.2d 1; King v. Mortimer, 83 Cal.App.2d 153, 158, 188 P.2d 502; C. Dudley De Velbiss Co. v. Kraintz, 101 Cal.App.2d 612, 617, 225 P.2d 969. This rule applies irrespective of whether leave to amend is requested or not. MacIsaac v. Pozzo, 26 Cal.2d 809, 816, 161 P.2d 449; King v. Mortimer, 83 Cal.App.2d 153, 158, 188 P.2d 502, supra; Code of Civil Procedure, Sec. 472c.’ Phillips v. Phillips, 137 Cal.App.2d 651, 653, 290 P.2d 611, 612.

It is succinctly stated in 2 Witkin, California Procedure, at pages 1496 and 1497, ‘An order sustaining a demurrer without leave to amend is followed by a final judgment of dismissal of the action, reviewable on appeal. Such a drastic step is unwarranted, and ordinarily constitutes an abuse of discretion, if there is a reasonable possibility that the defect can be cured by amendment. This rule is chiefly applied in the following situations:

‘(a) Where the defect is one of form, raised by special demurrer, and the elements of a cause of action are stated. * * *

‘(b) Where the defect, whether of form or substance, relates only to a part of the complaint and at least one count is good. * * *

‘(c) Where the defect, though one of substance, may possibly be cured by supplying omitted allegations, and the plaintiff has not had a fair opportunity to do so, as where the demurrer was sustained to his first complaint. * * *

‘(d) Where the action is ‘favored’, this, alone or in connection with any of the other reasons stated above, may influence the appellate court to reverse the judgment of dismissal and allow the plaintiff to try again. * * *'

We cannot agree with the trial court that the complaint is fatally defective because it appears on the face thereof to have been prematurely filed in view of the statement of the law appearing in Pierce v. Wright, 117 Cal.App.2d 718, 728, 256 P.2d 1049, 1054, as follows: ‘In Ceremony v. Drummond, 37 Cal.App. 446 (174 P. 696) [* * *] it was held that the contractor's bond is a contract of indemnity against liability rather than one of indemnity against loss sustained and paid, * * *.’ (Emphasis added.)

From the record before us, we cannot say that appellant cannot correct the defects in its complaint by amendment so as to state a proper cause of action upon some theory. It may be that appellant can allege facts to bring it within the scope of those intended to be protected by the bond in question; and it may be that appellant can develop some theory upon which it is presently entitled to be indemnified against some type of existing liability.

We are of the opinion that the interests of substantial justice will be served by affording appellant an opportunity to clarify the uncertainties and to supply the deficiencies appearing in its original complaint by amendment thereof.

The judgment is reversed with directions to the trial court to permit the appellant to amend its complaint if it be so advised.

FOURT, Justice.

WHITE, P. J., and LILLIE, J., concur.