GANTENBEIN v. CITY OF LONG BEACH (1935)

In a petition for rehearing herein, respondents stress the point that appellant is not entitled to a reversal because there is no showing that after the demurrer was sustained without leave to amend appellant asked permission to amend. The demurrer was good on at least one ground, they point out, to wit, that a city ordinance was improperly pleaded, and therefore the order of the lower court sustaining the demurrer without leave to amend should be sustained in the absence of a showing that appellant requested leave to amend.

The rule is somewhat broader than respondents indicate. As stated in Philbrook v. Randall, 195 Cal. 95, 231 P. 739, 743, “appellant is not entitled to a reversal on the ground that he was deprived of an opportunity to amend, in the absence of a showing that he asked permission to amend, that he desired to amend, or that he could have amended.” Plainly in this case appellant could readily have amended his complaint to correctly plead the ordinance. Moreover, the ordinance in question was only incidentally referred to, and, as pointed out in the original opinion herein, the question of the improper pleading of the ordinance was not even raised in respondents' special demurrer to the petition.

Rehearing denied.

PER CURIAM.