Legal Question in Administrative Law in California
Amending Complaint
I am a plaintiff in pro per. I gave a courtesy notice to the defendants' counsels that I will be making the first amendment of my compliant. May be I should have never sent them the courtesy notice
The attorneys are now saying that I cannot amend my complaint without a court order or consent by the defendants. They are also asking me why I want to amend my complaint and what is the nature of the amendment. Do they have the right of asking me all these questions?
The attorneys want to take my first deposition 2 weeks from now.
My court date is set for sometime middle of next year.
Thank you.
3 Answers from Attorneys
Re: Amending Complaint
I respectfully decline to provide you with the legal education that you are seeking in a piecemeal fashion (and that you so obviously lack). Hire a lawyer, or ask the other lawyer if they will waive court costs in return for your dismissing the case with prejudice.
Re: Amending Complaint
I assume the case is in state court rather than federal, and that you have access to the Code of Civil Procedure. The applicable section is CCP 472, giving you the right to amend once "of course," meaning without anyone's permission, before the defendant files an answer or demurrer.
The likely effect of giving a courtesy notice to the other side is that it will immediately get an answer on file.
Maybe the defendants are asking what the proposed amendment is about so they can decide whether to consent (stipulate) to your filing it. In some circumstances, it pays off for a party or its attorneys to agree to cooperate, for example, in voluntarily giving you an extension of time, relief from default, stipulating that an amended pleading may be filed, and so on....in other instances, a party has no motive to give the other side any breathing room.
Lawyers on opposite sides of a case size each other up early on, forming opinions of the opposing side's skills, tenacity, and the vigor with which they will prosecute the case. If they know you will go to court and make a knowledgable and convincing motion for permission to amend, most often they won't bother to fight it, and will stipulate to the amendment to save everyone time and money.
Lawyers that sense the other side is weak, incompetent, overworked, bored or not being paid well will take every advantage permitted by the rules of ethics.
Re: Amending Complaint
Just a minor correction to Mr. Whipple's response. If a demurrer has been filed to your original complaint, you have until the hearing on that demurrer to file a first amended complaint as a matter of right, without permission from court or opposing counsel.
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