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Can I still file First Amendment of Complaint? I have only 800 characters to ask Q, so there could be problems!

San Jose, CA |

1- Defendants has filed motion to dismiss for statute of limitation, No strike and no Demurrer.
2- Motion to dismiss hearing took place last week, no result yet.
My questions: A- Can I still file First Amendment of Complaint?Or I need to file a Motion for leave?
B- Can I add a new cause of action?
C- Can I Refine or Polish the original complaint without a major change? or without taking out points what the defendant used?
Also do know that I might do this anyway if court orders so, however this is not my question.

Q- C is for B QD- Would Statue of limitation be a problem?if Cause of action is based on my new information?

Attorney Answers 2

  1. Best answer

    Ms. Johns gives good, solid advice.
    You are generally allowed a free opportunity to amend one time before the defendant appears. Since there has already been a hearing on a motion to dismiss, you would only be allowed to amend upon filing a motion and being granted permission. It is likely that the court will not allow any amendment while the motion to dismiss is pending.

    If you have a different cause of action, that is not barred by the statute of limitations, you may be able to assert that in an amended complaint, after filing a motion, or in an entirely new action.

  2. The answer is: based on the facts you've stated, I don't know. You haven't indicated what kind of case it is, what the facts are, or what the causes of action are. You also indicated that the judge hasn't ruled on the motion to dismiss. You can't plead around the statute of limitations, as I understand it. If you blew the statute, you blew the statute. You could argue that the statute of limitations was tolled although an argument like that would only have merit if it's true. You could certainly sue on another cause of action if the statute hasn't run. I know that this is really generaly advice although based on what you've stated here, that's about all I can say.

    Have you considered hiring a lawyer in your area to review case as to (1) whether it has merit; and (2) you can bring your case based on the statute of limitations?

    Ms. Johns is a lawyer although she is not your lawyer unless you have consulted with a lawyer and confirmed her representation of you in a fee or letter agreement. This post does not constitute legal advice and no attorney client relationship results.

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