Asked over 1 year ago - Beverly Hills, CA
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CA Civil unlimited - superior court of CA
What is the latest amount of time a defendant can amend and file additional affirmative defenses in a civil case from the final readiness hearing?
Depends on the defense but it is not necessary to state the defenses you plan to present at trial if you want to present facts to your case. The court will probably just tell you that you don't need to amend it and you can just present those defense.
Usually defensive facts are similar and presenting facts for one case would probably be enough the same questioning to present the other defenses. I would doubt that a judge would require you to amend anything so close to trial and just make you present your case if it doesn't involve re-opeining discovery for the other side.
In California, courts usually display great liberality in allowing amendments to answers because “a defendant denied leave to amend is permanently deprived of a defense.” (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.)
However, the court can consider “prejudice to opposing party.” The case of Magpali v. Farmers Group Inc. (1996) 48 Cal.App.4th 471, 486-488, holds that “Prejudice exists where the amendment would required delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased burden of discovery, etc.” “The fact that the amendment involves a change in legal theory which would make admissible evidence damaging to the opposing party is not the kind of prejudice the court will consider.” (Hirsa v. Superior Ct (1981) 118 Cal. App. 3d 486, 490.)
The court can deny leave to amend after long, unexcused delay, particularly where new issues would require further discovery. (Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 692; Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) Unreasonable delay in making a motion to amend is alone sufficient grounds to deny. (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 136; Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-40.)
For such motions, you really ought to seek the stipulation of plaintiff to permit you to file an amended answer, especially if you are in Los Angeles Superior Court, where it could be 3 months from now before you can get a motion hearing date.
There is no rule providing the last possible time a pleading may be amended. Affirmative defenses are in the defendant's answer, which is a pleading. In fact, pleadings may be amended to conform to proof at anytime until the matter is given to the jury or taken under submission by the judge.
If you are the defendant, and you have discovered an additional defense, you should make a motion as soon as you discover the defense. The court has discretion to allow, or not allow, an amended pleading. One of the things that enters into the court's decision is how long you waited to ask to amend.
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