Legal Question in Civil Litigation in California

Renewing motion for leave to amend complaint after denial

I brought a motion to amend my complaint to add a count for fraud, based on

admissions in defendant’s deposition testimony, to my constructive fraud and

negligence counts.

The defendant's opposition to my motion argued that the proposed

amendment was confusing and prejudicial and that it failed to comply with

the California Rules of Court specifying the page, line, and effect of each

proposed amendment and when the factual basis of each was discovered.

At oral argument, I offered to redo the amendment and motion papers. I

thought the judge was agreeing with me that that was the proper thing to do,

but when I got the order, it just said “DENIED” -- without any findings or

guidance.

Is it presumed that the denial was ''with prejudice'' or ''without prejudice” if it

doesn’t specifically say?

I've submitted a revised amended complaint that's fully documented in the

motion papers. My concern now is to be prepared in case I was supposed to

have understood from the ''DENIAL'' that it was ''with prejudice.''


Asked on 2/12/06, 10:24 pm

4 Answers from Attorneys

JOHN GUERRINI THE GUERRINI LAW FIRM - COLLECTION LAWYERS

Re: Renewing motion for leave to amend complaint after denial

It was almost undoubtedly without prejudice. However, when you re-file your motion, you will need to let the court know that you have sought the same relief before and it was denied. Your adversary will likely argue that you are inappropriately seeking reconsideration of a prior order.

You should consider finding a competent attorney to handle your case. The litigation playing field is covered with traps for the unwary.

Good luck.

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Answered on 2/15/06, 1:06 pm
Sharon Green Sharon Green, Lawyer

Re: Renewing motion for leave to amend complaint after denial

You have very limited time to file a motion for reconsideration; filing a renewed motion to amend may be construed as a motion for reconsideration so be sure you comply with the reconsideration statute. If your case has any value at all you should retain a lawyer to represent you. Well meaning pro pers are no match for seven years of higher education, no matter how earnest you are.

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Answered on 2/15/06, 5:27 pm
Christopher M. Brainard, Esq. C. M. Brainard & Associates - (310) 266-4115

Re: Renewing motion for leave to amend complaint after denial

Another example of why you shouldn't try to practice law. I mean would a surgeon open his own body and operate on himself? Let alone a lay person. In any event, the answer is, "the concept doesn't apply."

On most motions, they don't have to give you anything other than their decision based on the papers you submitted. It sounds as though he listened to your request that you amend according to the rules and denied you on other grounds anyway. He may have overruled you on his own independent grounds. You can go ahead and make another motion to amend, technically speaking. Either way, you may already angered or annoyed the judge with your malpractice and/or motion practice.

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Answered on 2/14/06, 9:47 pm
Robert F. Cohen Law Office of Robert F. Cohen

Re: Renewing motion for leave to amend complaint after denial

I agree with what my colleague says. Usually, when I amend a complaint, I will file a "First Amended Complaint," which recasts the entire complaint including the additional or corrected material. You have a limited time in which to file a request for reconsideration based upon new facts that were not available at the time you filed the motion. Good luck.

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Answered on 2/14/06, 10:52 pm


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