Plаintiff appeals from a judgment of dismissal following an order sustaining defendant’s general demurrer to her amended complaint seeking damages for injuries proximаtely caused by the dangerous condition of defendant’s property.
It appears the contention urged by defendant through its general demurrer was the complaint did not allege the presentation of a claim within the time prescribed by Government Code section 911.2 or the extended time provided by sections 911.4 and 911.6. The court sustained the demurrer and granted plaintiff 20 days to amend. Thereupon plaintiff petitioned the court, pursuant to former Government Code section 912, for leave to file a late claim after denial of application for permission to file such, made pursuant to Government Code section 911.4. Thе court denied this petition on the ground it had not been filed within the time prescribed by statute. Plaintiff appealed from this order which was affirmed by this court on July 14, 1967.
(Harvey
v.
City of Holtville,
On August 28, 1967, which was 14 days after our decision in the former appeal became final, plaintiff filed a notice of motion for a reconsideration of the ruling of the trial court *818 sustaining the genеral demurrer to her amended complaint and for an order extending the time within which she might amend. This motion was denied. Thereafter judgment of dismissal, based on the ordеr sustaining the general demurrer and failure of plaintiff to file an amendment within the 20 days granted, was entered, Plaintiff appeals contending (1) the order sustaining the general demurrer was error; and (2) the order denying plaintiff additional time within which to amend also was error.
The briefs in this case give the impression the controversy is betwеen the attorneys rather than between the parties. We disregard references to the ineptness of counsel and other derogatory remarks as immaterial to a determination of the issues on their merits.
The allegations in the amended complaint with respect to presentation of the claims arе as follows: “That within a year after the accrual of the Cause of Action herein stated in this Complaint, Plaintiff, by her guardian ad litem, presented an appliсation for leave to present a late claim with the Defendants, and each of them; said application was accompanied by Plaintiff’s clаim against said Defendants, and each of them, resulting of her injuries arising from the incidents set forth in this complaint; that the application for leave to present late claim was based on the grounds that Plaintiff was a minor during all of the time specified for the presentation of the claim; that Section 911.6(b) California civil рrocedure Code states ‘ The board shall grant the application under such circumstances’. Thereafter, within six months prior to the bringing of this Complaint, Plaintiff was notifiеd in writing of the denial of her claim by Defendants, and each of them. ’ ’
Apparently the trial court concluded the foregoing allegations did not show presentаtion of the claim within the time required by law because it was not alleged plaintiff's application for leave to present a late claim had been granted. Although not expressly alleged, the fact her application had been granted is supplied by inference or implication from the allegations she applied for leave to present a late claim, her application was accompanied by her claim, and defendant denied thе claim. In our former opinion, anticipating further proceedings in the ease, we stated: “ If the city council denied plaintiff’s claim it acted upon the claim. The authority to act was premised upon presentation within the time allowed by statute. By its action the council impliedly granted plaintiff’s application to make a late presentation. ’ ’
*819
A general demurrer admits not only the facts expressly alleged but also facts essential to a cause of аction which the facts alleged supply by implication or inference.
(Semi-Tropic Spiritualists’ Assn.
v.
Johnson,
Although both parties cite and rely upon the rule a general demurrer may be detеrmined only upon the facts supported by the allegations in the amended complaint, unconnected with extraneous matters
(Griffith
v.
Department of Public Works,
In our opinion on the former appeal we stated “an estoppel question is presented if the letter from the city clerk did not accurately rеlate the action taken by the council; if in fact no action upon the claim was taken; and if the only action taken was to deny plaintiff’s appliсation to make a late presentation”.
(Harvey
v.
City of Holtville, supra,
Although we need not determine whether the aсtion of the trial court in refusing to extend the time within which plaintiff might file a further amended complaint was an abuse of discretion because of our conclusiоn the court erred in sustaining the general demurrer, in light of the probability the issue may be presented to the trial court in the future we conclude plaintiff should be grantеd permission to file a further amended complaint premised on the theory of estoppel if she requests permission to do so and acts diligently.
“It can very rarely happen that a court would be justified in refusing a party leave to amend his pleading so that he may properly present his case.”
(Crosby
v.
Clark,
Defendant intimates this court, in discussing the effect of the notice from the city clerk and the probability of the existence of an estoppel under assumed circumstances, volunteered its services on behalf of plaintiff, and its opinion in the premises was dictum. The discussion in the opinion premised on the probability plaintiff will аsk permission to present the estoppel theory in a further amendment is in like category. We reply by reference to the rule: Where an appеal is well taken and further proceedings in the action are indicated, it is proper for the appellate court to discuss contentions presented on the appeal that may arise in the course of further proceedings.
(Cake
v.
City of Los Angeles,
The judgment is reversed.
Brown (Gerald), P. J., and Whelan, J., concurred.