Even though the trial court did not abuse its discretion in sustaining a demurrer to plaintiffs’ first amended complaint without leave to amend on the ground that the two plaintiffs were misjoined, one of them settled and was dismissed while the case was on appeal. That dismissal resolved the misjoinder problem, leaving only a single plaintiff. Even though the remaining plaintiff had not requested leave to amend in the trial court and had not shown in that court that he could amend to cure the misjoinder defect, he was allowed to propose an amendment for the first time on appeal. Since an amendment dropping the plaintiff who had settled would cure the misjoinder defect, the judgment had to be reversed to allow the remaining plaintiff to proceed with his claims alone.
California Court of Appeal, Fourth District, Division 2 (Miller, J.); May 31, 2018; 2018 Cal. App. LEXIS 511