Legal Question in Civil Litigation in California

You can amend a complaint without requiring leave of court (permission from the judge) as long as the defendant has not yet filed an answer or other responsive pleading (demurrer, etc.). If the defendant has filed a responsive pleading, then you must file a motion requesting leave of court to amend the complaint (or get the defendant to agree to you filing an amended complaint and sign a stipulation to the end).

Yes. A complaint may be amended after it is filed. Here are a few considerations:

1. A party may amend the complaint once, without permission of the court, BEFORE ANOTHER PARTY ANSWERS. So, if you have not yet served the complaint, you may file and amended complaint, without leave of court. If you have already served the complaint, but the defendant has not answered, you may also file an amended complaint, without leave of court. This situation can be helpful, particularly, if the defendant responded to the complaint with a demurrer and/or motion to strike. The plaintiff may, generally, file an amended complaint, after these responses were filed, as long as the filing is before the court rules on the demurrer or motion to strike. (There are always exceptions, though.)

2. If your opportunity to file an amended complaint has already expired because you don't fit into one of the situations that I described in Item 1, then you can bring a motion for an order granting leave to amend the complaint. There are many rules to follow, when filing a motion. So, check with an attorney.

One point to remember: If you filed the original complaint, but you have not served it because you want to amend it, do so promptly. A complaint must be served within 60 days of commencing the case. If you let the case sit, the court could take action against you, including but not limited to imposing monetary sanctions or even dismissing the case.

I respectfully disagree with the answer by Mr. Shem-Tov. You may amend once, without leave of court, before a defendant ANSWERS. A demurrer that has not yet been heard does not stop you from doing so.

If there has been no response, you can file an amended complaint. Otherwise you need to bring a motion for leave to amend. You should have an attorney.

Best,

Daniel Bakondi, Esq.

[email protected]

415-450-0424

The Law Office of Daniel Bakondi, APLC

870 Market Street, Suite 1161

San Francisco CA 94102

http://www.danielbakondi.com

IMPORTANT NOTICE: This communication may contain confidential information, privileged information, or attorney work product. If you are not the intended recipient or received this message in error, any use or distribution of this message is strictly prohibited and unlawful. Please notify the sender immediately, and delete this message. No attorney-client nor confidential relationship is created through this communication. Nothing communicated or provided constitutes legal advice nor a legal opinion unless it so specifies and written agreement for attorney services has been entered into. Attorney licensed in California only. Your issue may be time sensitive and may result in loss of rights if you do not act in time. Thank you.

I agree with Mr. Saltzman's answers. If the defendant has not answered, you may file an amended complaint, as a matter of course, without seeking leave of court. If the defendant has demurred or move to strike, you may file an amended complaint at any time prior to the court ruling on the demurrer or motion to strike.

If the demurrer is sustained with leave to amend, or the motion to strike is granted with leave to amend, you MUST amend within the time given by the court (or by rule) or face dismissal.