Obtaining leave to amend pleadings in California

Obtaining leave to amend pleadings in California is the topic of this blog post. 

This post will discuss the the issue of amendment of pleadings in California litigation and the circumstances when leave to amend is required. Leave to amend means that a party must seek permission from the Court to amend their pleadings, whether that be an answer, a complaint, cross-complaint or similar pleadings.

One of the main statutes governing amendment of pleadings is Code of Civil Procedure Section 472 which states that, "Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment." The same rule also applies to cross-complaints.

And any part of the complaint may be changed without leave including the addition of new parties as plaintiff or defendant. See Ryan G. v. Department of Transportation (1986) 180 Cal.App. 3d 1102, 1105, where applicable, CCP § 472 prevails over CCP § 473(a) (requiring leave of court to add new parties. This means that not only could new parties be added but presumably also new causes of action. That is vital because if a party waits until after a demurrer hearing in which leave to amend is granted they can only amend those causes of action ruled upon at the demurrer hearing. If they try to add new causes of action they risk another demurrer on that basis. If a party wishes to add new parties or causes of action they should request leave of Court if and when the demurrer is sustained.

Note that while an answer can be amended without leave of Court if a demurrer has been filed, if no demurrer has been filed, the answer can be amended as a matter of right only during the time that a demurrer could have been interposed (i.e., within 10 days after the answer was filed). See Code of Civil Procedure § 430.40(b).

Normally, when a demurrer is sustained, or motion to strike is granted, some material allegation of the prior pleading has to be changed. An amended pleading making substantive changes (changes in material allegations) is treated as a new pleading, and must be served on all opposing parties—not just those who objected to the prior pleading. See Cohen v. Sup.Ct. (Southern Pacific Co.) (1966) 244 Cal. App. 2d 650, 656.

If leave to amend is needed and an answer has already been filed then a party must file a noticed motion to request it. However the policy of law in California is that leave to amend should be liberally granted.

Courts are bound to apply a policy of great liberality in permitting amendments "at any stage of the proceedings, up to and including trial," absent prejudice to the adverse party. See Atkinson v. Elk Corp. 109 (2003) Cal.App. 4th 739, 761.

Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased burden of discovery, etc. See Magpali v . Farmers Group, Inc. (1996) 48 Cal.App. 4th 471, 486-488.

Further, there is a right to amend "to correct inadvertent misstatements of facts or erroneous allegations of terms." See Berman v. Bromberg (1997) 56 Cal.App. 4th 936, 945.

Courts usually display great liberality in allowing amendments to answers because "a defendant denied leave to amend is permanently deprived of a defense." See Hulsey v. Koehler (1990) 218 Cal.App. 3d 1150, 1159.

However, a party should be extremely careful in amending a pleading and omitting certain material facts that were including in the original pleading. That can backfire in a big way.

"The general rule is that material factual allegations in a verified pleading that are omitted in a subsequent amended pleading without adequate explanation will be considered by the court in ruling on a demurrer to the later pleading." See Shoemaker v. Myers (1990) 52 Cal. 3d 1, 13.

And the same principle has been held equally applicable to unverified complaints. See Pierce v. Lyman (1991) 1 Cal.App. 4th 1093, 1109.

Plaintiff can avoid the effect of earlier admissions by including in the complaint a satisfactory explanation why the earlier admissions are incorrect. Absent such explanation, however, the self-destructive allegations in the earlier pleading or discovery response are "read into" the complaint, and allegations inconsistent therewith treated as sham and disregarded. See Owens v. Kings Supermarket (1988) 198 Cal. App. 3d 379, 384.

The most important thing to remember is that parties should make sure that any amended complaint does not omit any material factual allegations without a good explanation. Otherwise serious legal consequences can result.

Demurrers have been sustained due to inconsistent statements made by the pleader in a different lawsuit. "The principle is that of truthful pleading" See Cantu v. Resolution Trust Corp. (1992) 4 Cal.App. 4th 857, 877–878.

Attorneys or parties in California who wish to view sample legal documents used by the author can click below.

http://www.scribd.com/LegalDocsPro


The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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