Legal Question in Civil Litigation in California
In a demurrer hearing, the court gave Plaintiff 20 days leave to amend the First Amended Complaint (FAC), in a Med Mal case (Abdandonment of Patient).
Plaintiff failed to file and serve the Second Amended Complaint (SAC) timely (because Plaintiff was ill), and instead filed and served it 32 days later (12 days late) .
Defendant demurred to Plaintiff's SAC stating that Plaintiff failed to amend, file & serve the SAC timely.
Plaintiff wants to argue in the opposition that (aside from being ill) it is in everyone's interest (and the preserve judicial economy) that the court overrule
defendant's demurrer and allow a late amendment because, since the complaint was filed within 2 months of the alleged incident, Plaintiff is well within the
statute of limitation and can always dismiss the complaint and then re-file, thus , making the cause of action at isssue, new and valid again, in a new filing.
Would that work?
1 Answer from Attorneys
I learned LONG ago that there is no certainty in how a court will rule. The sage lawyer I worked for out of law school put it this way, "A bad lawyer and a bad judge can have a meeting of the minds." I will say, however, that I certainly would make the argument you propose if I were handling the case.
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