(a) When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.
§ 472c.Orders Open to Appeal
Title 6. Of the Pleadings In Civil Actions · Chapter 8. Variance—Mistakes in Pleadings and Amendments · Last amended 1994 · Last verified July 28, 2026
In one sentenceSection 472c makes an order sustaining a demurrer without leave to amend reviewable on appeal for abuse of discretion even without a request to amend, and treats certain partial demurrer-sustaining and motion-to-strike orders as still open on appeal even though an amended pleading was later filed.
Full Text of § 472c
(b) The following orders shall be deemed open on appeal where an amended pleading is filed after the court's order:
(1) An order sustaining a demurrer to a cause of action within a complaint or cross-complaint where the order did not sustain the demurrer as to the entire complaint or cross-complaint.
(2) An order sustaining a demurrer to an affirmative defense within an answer where the order sustaining the demurrer did not sustain the demurrer as to the entire answer.
(3) An order granting a motion to strike a portion of a pleading where the order granting the motion to strike did not strike the entire pleading.
(c) As used in this section, "open on appeal" means that a party aggrieved by an order listed in subdivision (b) may claim the order as error in an appeal from the final judgment in the action.
Plain-English Summary
Ordinarily, amending a pleading after an adverse ruling can look like accepting that ruling. Section 472c prevents that trap in two ways. First, when a court sustains a demurrer without leave to amend, whether the court abused its discretion in doing so remains open on appeal even if the pleading party never asked to amend.
Second, subdivision (b) lists three kinds of partial rulings that stay "open on appeal" even after an amended pleading is filed in response: an order sustaining a demurrer to one cause of action without sustaining it as to the whole complaint or cross-complaint; an order sustaining a demurrer to one affirmative defense without sustaining it as to the whole answer; and an order granting a motion to strike part of a pleading without striking the whole thing. "Open on appeal" means the aggrieved party may still raise that order as error in an appeal from the final judgment.
Frequently Asked Questions
Do I lose my right to challenge a demurrer ruling if I never asked to amend?
No. Section 472c(a) keeps an order sustaining a demurrer without leave to amend open to review for abuse of discretion even without a request to amend.
If I amend part of my complaint after a partial demurrer ruling, can I still appeal that ruling later?
Yes, for the specific partial rulings listed in § 472c(b) — those stay open on appeal even after a later amended pleading is filed, and can be raised in an appeal from the final judgment.
Amendment History
Amended by Stats. 1993, Ch. 456, Sec. 7. Effective January 1, 1994.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as: appealing a demurrer ruling californiaopen on appeal partial demurrer order