1The topic of this issue of the newsletter is amendment of pleadings in California and the circumstances when leave to amend

is required. One of the main statutes governing amendment of pleadings is Code of Civil Procedure § 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 new causes of action could be added as well. That is a critical distinction because a party who 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 to add the new parties or causes of action in the event that the demurrer is sustained at the demurrer hearing. Note that while an answer can be amended without leave of Court if a demurrer has been filed to the answer, 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 filed which is 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 for both answers and complaints is that leave to amend should be liberally granted at any stage of the proceeding unless that would cause prejudice to the opposing party. 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. (2003) 109 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 beware in amending a pleading, particularly a complaint, and omitting certain material facts that were included in the original pleading. That can be a very grave tactical mistake and can have serious repercussions. “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. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great weekend and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author’s website: http://www.legaldocspro.net View numerous sample document sold by the author: http://www.scribd.com/legaldocspro © 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice.

These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.

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