Majestic Realty Co. v. Pacific Lighting Corp.

Plaintiff, Majestic Realty Co., appeals from a judgment of dismissal (see Code Civ. Proc., § 58Id), entered pursuant to Code of Civil Procedure section 581, subdivision 3, of its action against defendant, Pacific Lighting Corporation (PLC), following the sustaining without leave to amend of PLC’s general demurrer to plaintiff’s second amended complaint.

Plaintiff contends that PLC’s general demurrer should not have been sustained because it was a part of a joint general demurrer filed by both PLC and its co-defendant, Pacific Lighting Properties, Inc. (PLP), and the demurrer of PLP was overruled.

We note initially that within the document the general demurrer of each defendant was stated in a separate paragraph. It has been frequently said in the cases and by commentators as well that a joint demurrer of two defendants must be overruled if the complaint is good against either of *643 them. (See Wise v. Southern Pacific Co., 223 Cal.App.2d 50, 76 [ 35 Cal.Rptr. 652 ].) But, as Witkin has pointed out, this rule should be limited to special demurrers since a defendant may raise at any time, and presumably in any appropriate way, the fundamental and fatal defect that a…