Legal Question in Civil Litigation in California

How do I amend my complaint?

I filed a civil complaint in Pro Per on 12/7/04. An answer was filed by defendant on 1/7/05. I have sent form interrogs which were answered timely, and I recently sent out special interrogs which have not yet been answered. The defense has not conducted any discovery. I now want to amend my complaint to add additional causes of action and fix some minor errors in original. Uncertain about the process. Must I ask defense to stipulate first? Do I file a motion request for leave to amend complaint, and then amend if and only if it is granted, or do I attach the amended complaint to the request. Do I send the request for leave to the defense also, or only the judges decision. Does this motion require a hearing, or simple judicial review with decision to follow.

Asked on 2/19/05, 12:52 pm

4 Answers from Attorneys

J. Caleb Donner Donner & Donner

Re: How do I amend my complaint?

Yes, ask the defense to stipulate first. Most likely they are going to want to see how you are going to amend before agreeing to the stipulation.

In any case, once another party has appeared in the action (as they have in yours) leave of court is required in order to amend the complaint. Thus, you will have to make a motion, even if you have a stipulation from the other side.

Yes, you need to attach the proposed amendment as well as a statement showing what is being changed in the new pleading.

Read more
Answered on 2/19/05, 1:43 pm

Edward Hoffman Law Offices of Edward A. Hoffman

Re: How do I amend my complaint?

I agree completely with Mr. Donner's answer, but I want to add one or two points.

You asked, "Do I send the request for leave to the defense also, or only the judges decision[?]" You must send the defense a copy of *anything* that you send to the court, and you must provide the court with proof that you have done so.

For motions, you must serve a copy on the defense far in advance so that they have time to oppose; the amount of time you must give them is specified in various statutes and varies somewhat from one type of motion to another. There are very limited exceptions to this rule, but I don't see why any would apply here.

You also ask "Does this motion require a hearing, or simple judicial review with decision to follow[?]" All motions in California superior courts require hearings, unless all sides are willing to waive it and the court agrees.

Read more
Answered on 2/19/05, 4:11 pm
Christopher M. Brainard, Esq. C. M. Brainard & Associates - (310) 266-4115

Re: How do I amend my complaint?

You know, there are many answers to your question. Do what you will. I want to say that is inappropriate for you to use this site this way. Instead of hiring an attorney, you leech off us through this website?

Read more
Answered on 2/19/05, 8:22 pm
Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

Re: How do I amend my complaint?

Without knowing anything other than that stated in your question: 1) Write your amended complaint. 2) Send it to deft with a cover letter asking them to stipulate. Also send a proposed stipulation. If you do not get the stipulation, prepare a motion. A motion consists of a request to the court to take some action; a statement of the law; a sworn declaration of the facts (why you want the court to take the action). A motion to amend a complaint would normally have a Proposed First Amended Complaint attached as Exhibit A and the letter to deft as Exhibit B. You need to 1) Read Weil & Brown, Cal. Civil Procedure before trial, a grey loose leaf book available behind the desk at the courthouse law library; and 2) gather and read some sample motions, stipulations etc. from the public files of your local courthouse, and plagiarize like hell. Obviously there is lots more you need to know, but that's a start.

Read more
Answered on 2/19/05, 8:48 pm

Related Questions & Answers

More General Civil Litigation questions and answers in California