Legal Question in Civil Litigation in California
if a Demurrer is sustained with leave to amend, this means that a Plaintiff can edit the Complaint to make the requested changes as the Court requests, is that correct? how many days do I as the Plaintiff have to make the changes to the Complaint? Is the prevailing party considered to be the Defendant or the Plaintiff in this instance?
2 Answers from Attorneys
1. Yes. 2. Whatever number of days is specified in the court order, otherwise usually 20. For a definitive answer regarding calculating these dates, refer to Cal. Civil Procedure Before Trial. 3. No one has prevailed yet, but Defendants appear to be winning.
1. If defendant's demurrer is sustained, with leave to amend, it means the plaintiff has been given leave to amend, but only as to the issues that were sustained in the demurrer.
2. When the court sutains a demurrer, leave to amend within 10 days is deemed granted, unless the court orders otherwise. (Cal. Rules of Court, rule 3.1320, subd. (g).) It is five days if the case is an unlawful detainer case.
The time to amend does not run from the ruling, but from the date of service of "notice" of the court's decision, unless notice is waived in open court by the parties and entered into the court minutes. (Code Civ. Proc., sect. 472b.)
3. When a demurrer is sustained, the party that filed the demurrer is the prevailing party. I imagine that you have a ruling that orders the prevailing party to give notice. That would be the defendant, if the defendant filed the demurrer and it was sustained.