Legal Question in Civil Litigation in California

can a civil complaint be ammended after filed? If so, up to what point in time is it too late to ammend? Does it depend on the judge?

Thank you so much in advance.

Asked on 7/29/10, 11:06 am

5 Answers from Attorneys

Shalem Shem-Tov The Shem-Tov Law Firm, Inc.
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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).

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8/03/10, 11:14 am
Mark Saltzman, MBA, JD Law Offices of Mark E. Saltzman
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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.

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8/03/10, 11:20 am
Mark Saltzman, MBA, JD Law Offices of Mark E. Saltzman
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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.

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8/03/10, 11:22 am
Daniel Bakondi The Law Office of Daniel Bakondi
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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.

danielbakondi@yahoo.com

415-450-0424

The Law Office of Daniel Bakondi, APLC

870 Market Street, Suite 1161

San Francisco CA 94102

http://www.danielbakondi.com

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8/03/10, 1:01 pm
Anthony Roach Law Office of Anthony A. Roach
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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.

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8/04/10, 2:53 pm

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