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YANK v. CITY OF DOWNEY
Court of Appeals of California, Second District, Division One.
Filed September 11, 2012.
"`[I]f the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment. [Citations.]' [Citations.] . . . [T]he plaintiff bears the burden of showing `in what manner [it] can amend [its] complaint and how that amendment will change the legal effect of [its] pleading.' [Citation.] The plaintiff may make this showing in the first instance on appeal. [Citation.]" (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 971.) We review a denial of leave to amend for abuse of discretion. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) This is true even if no request to amend the pleading was made below. (Code Civ. Proc., § 472c, subd. (a); Rakestraw, supra, 81 Cal.App.4th at p. 43.) "[I]f there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend." (City of Atascadero, supra, 68 Cal.App.4th at p. 459.) It was no abuse of discretion to deny plaintiff leave to amend his complaint. At no time did he indicate he could allege additional facts other than vague allegations of fraud against city officials. The facts he did allege affirmatively demonstrated his inability to state any tort, statutory or constitutional claim. Leave to amend was therefore properly denied. Plaintiff argues that if given leave to amend he could show "there is a serious fraud going on." He refers to his representations made at the hearing below about unspecified documents purporting to show the city's mayor was "involved" in the "project," "wanted to take over the property," and "fooled the City to go forward." Construing plaintiff's representation liberally, we infer he means that Downey's mayor fraudulently caused the city not to issue permits because he wanted the subject property for himself. Such allegations would not save the complaint because "[a] public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional." (Gov. Code, § 818.8; see Polonsky v. City of South Lake Tahoe, supra, 121 Cal.App.3d 464 at p. 467 [immunity from fraud claims]; Burns v. City Council of the City of Folsom, supra, 31 Cal.App.3d at p. 1004 [same].) Leave to amend was therefore properly denied. DISPOSITIONThe order of dismissal is affirmed. ROTHSCHILD, Acting P. J. and JOHNSON, J., concurs.
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