if the judge rules no leave to amend for a cause of action stating that the statue of limitations have run out but you are still within the statue of limitations can you file a separate lawsuit on the same cause of action
3 Answers from Attorneys
No, you can't go file a separate lawsuit to get around the judge's ruling. If a demurrer is sustained without leave to amend, and your case is dismissed, you file an appeal if you don't agree with the ruling.
Mr. Roach is correct. The ruling is res judicata on the issue of the statute of limitations. If you think the judge ruled incorrectly you must file an appeal, or if there were other causes of action that remained active, then you file an application for a writ of mandate.
No. If there are no other causes of action, your remedy is to wait for a judgment and then file an appeal. (There are one or two exceptions in which the order sustaining the demurrer is immediately appealable, but they don't come up often.) If there are other causes of action which are still active, you can petition for a writ of mandate instead. Depending on the circumstances, you may have other options.
Please feel free to contact me directly if you want to discuss your case in more detail. I have many years of experience in appeals and writs, and am certified as an appellate specialist by the State Bar of California Board of Legal Specialization -- a certification held by just 284 of the roughly 200,000 lawyers practicing in this state.
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