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Can i amend a complaint4error if i didn't include bad faith but had to file a motion2compel arbitration for delay if SOL passed?

San Jose, CA |

Its been about 3 years and the case is still open,. It was a car accident and did go to arbitration,where the bad faith happened. I have seen the courts liberally rule in favor of amending complaint if it is a clerical error/oversight and this indeed was. I know insurance bad faith is two years.
I don't want to file breach of contract for failure to fully investigate(that was bad faith, too).

complaint filed; motion to compel arbitration filed 3 years ago and arbitration happened about six months later; so, what I am focused/confused on, is if I can add a bad faith cause of action three years later? It was a clerical error/oversight and should have filed it when I had to file a petition to compel arbitration for delay three years later (that had a different case number). I did have an attorney that couldn't finish the case due to personal issues and had to almost close their practice, so I had to finish myself.

Attorney Answers 5

Posted

Your description of events is a little hard to understand. As a matter of pleading, you typically can amend to add new causes of action that relate to the facts originally pleaded in the original complaint; that is, new causes of action based upon the same facts will "relate back" to the filing of the original complaint and deemed within the statute of limitations. Therefore, it will really depend on what you alleged in your original complaint. This analysis can be complicated though, so you will likely need to consult an attorney to address this issue.

Legal disclaimer: PLEASE READ THIS BEFORE YOU COMMENT, EMAIL ME OR PHONE ME. I'm only licensed in CA. This answer doesn't make me your lawyer, and neither do follow-up comments and/or emails and/or phone calls, and you shouldn't expect me to respond to your further questions if you haven't hired me. We need an actual agreement confirmed in writing before any attorney-client relationship is formed. This answer doesn't constitute legal advice, and shouldn't be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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Posted

I agree with my colleague. I am a little confused about the post. Feel free to re-post with more details. In general, amending a complaint can be accomplished. Did you consider hiring an attorney for help?

This communication does not create an attorney-client relationship. This means that I am not your lawyer and I will not appear in court simply by posting on this site. If you would like me to represent you, you must call my office, sign a written fee agreement and pay a legal fee, assuming I do not have a conflict of interest and you are in Southern California. If I respond to your question and you have follow up questions by posting on this site, I may or may not reply. This information should not be construed as legal advice. I am offering my opinion. Each person's case is unique, and that's why you should contact a lawyer over the phone for a consultation for your situation. That's why you should not rely on any response that an attorney posts on this site. I am licensed in California. I am not licensed in another state or country. I do not practice law outside of California.

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Asker

Posted

Yes, but wants a hefty consultation, although billing rate to litigate is very affordable if he moves forward; so just want to get a rough idea to see if I can save the consultation money and invest it into litigation.

Joseph Torri

Joseph Torri

Posted

These posts make it difficult to cover all of the issues that need to be addressed. I bet it is a hefty consultation fee because there are many issues to cover. Having said that, there should be other attorneys that will not charge a hefty consultation fee. It does sound like you feel comfortable with this lawyer. Perhaps you should try to obtain the money for the fee.

Asker

Posted

Thanks, you're right, I will as soon as I can.

Matthew Paul Krupnick

Matthew Paul Krupnick

Posted

The post is unintelligible. I wish people understood that we are real lawyers with real jobs that take time to answer these questions for free. At least make them intelligible. And I'm not trying to be mean.... just honest.

Asker

Posted

Not trying to be mean and I do appreciate lawyers answering as well as doctors and dentists but you shouldn't have wasted your energy. BTW, other lawyers understood it-just being honest.

Matthew Paul Krupnick

Matthew Paul Krupnick

Posted

Some people can read the handwriting of doctors, but most people cannot (sometimes even the doctor who wrote it). Was just saying if you are going to take the time to write out a question on a site like this, why not proofread it before submitting? Maybe I'm just used to hearing judges slam attorneys for grammar and spelling mistakes. No offense taken here I meant none to you. I hope you got the answer(s) you were looking for.

Asker

Posted

No offense taken. The question is analogous to a tweet(140 characters), so you have to be more creative than grammatically correct. That being said, I learned a good lesson from your feedback: I should probably put more detail in the "add details" section. I read your profile am looking for a creative attorney: do you do free consultations?

Posted

I have read your post a couple of times and it is hard for me to pull out a coherent question. You mention an attonrey. Talk to that professional about your situation.

Good luck.

In no way am I offering you legal advice, and in no way has my comment created an attorney-client relationship. You are not to rely upon my note above in any way, but insted need to sit down with counsel and share all relevant facts before receiving fully-informed legal advice. If you want to be completely sure of your rights, you must sit down with an experienced criminal defense attorney to be fully aware of your rights.

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Posted

Thanks

Posted

Generally, the courts are liberal in allowing amendments within certain defined criteria. Your facts seem extraordinarily complicated and I would strongly urge you to seek out legal counsel. If you call the County Bar Association you can arrange a telephone call or a meeting with an attorney experienced in this area of the law for a very small cost, normally $30. If your finances are not in good condition there maybe a limit4d means panel where attorneys may be available without charge. Otherwise go on the internet and find some experienced attorneys in your area who represent clients with bad faith claims. Many of them will allow you to have a first visit without cost. It’s very confusing that you have two case numbers, so mention that to the attorney you speak with.
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Posted

I agree with my colleagues. The relation back rule allows the new cause of action to be within the SOL, assuming the original summons and complaint was filed within the SOL and the facts are the same or similar. Most courts are liberal with allowing the amended complaint to relate back for SOL purposes. You need an attorney ASAP.

All content posted on marcusmoraleslaw.com and avvo.com is for educational purposes only and should not be relied on as legal advice. Any information conveyed to marcusmoraleslaw.com, avvo.com or by telephone to the Law Offices of Marcus W. Morales does not create an attorney-client relationship until an attorney-client fee agreement has been entered into and signed by both parties.

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Asker

Posted

excellent answer, thanks.

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