If a plaintiff files a MSJ with a different amount than what was on the original complaint without getting a leave to amend, can

Asked almost 2 years ago - Concord, CA

The defendant file motion for dismissal?

Attorney answers (5)

  1. Robert Harlan Stempler

    Contributor Level 19

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    Answered . A motion to dismiss would not work in this instance, but you could raise that issue to the court in opposing the MSJ, as a material fact in dispute. The concern that I would have is whether the complaint was verified. If not, then the complaint is not considered evidence, so the court could still grant the MSJ, unless you have evidence of a dispute of material fact. Please consult with an experienced debt collection defense lawyer, before a money judgment is entered against you on this debt. You may have other objections to raise, which an experienced attorney would see and raise correctly, but if not properly raised, are waived.

    Robert Stempler (please see DISCLAIMER below)
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    NOTICE: The above statements are provided for general information purposes only and are not intended as legal... more
  2. Michael Charles Doland

    Contributor Level 20

    8

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    Answered . No, that would not be permitted.

    The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may... more
  3. Ian Thomas Valkenet

    Pro

    Contributor Level 16

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    Answered . The more proper response would be an opposition to the motion. Summary judgment is only appropriate where there is no dispute of material fact (and the moving party is entitled to judgment as a matter of law). The amount owed sounds like a very material fact, and it sounds like you are in genuine dispute over that amount.

    If you are confused about the rules of procedure, or cannot adequately fashion an opposition to your opponent's motion, I suggest you consult an attorney immediately, as a grant of summary judgment could dispose of your case entirely.

  4. Michael T Millar

    Pro

    Contributor Level 19

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    Answered . The pleadings can always be amended up to and including at trial to conform to the evidence. Thus, if the evidence demonstrates a different amount than originally requested, that would not result in dismissal.

    If this answer was helpful, please mark it as helpful or as a best answer. This answer is for general education... more
  5. Gary Stephen Brown

    Contributor Level 10

    3

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    Answered . A motion for summary judgment asks the Court to determine from the motion papers whether there is any important fact in dispute that prevents entering a judgment immediately. If the Court determines no facts are in dispute then it will enter a judgment upon the papers filed. When doing so it will look to the complaint to see the limits of the amount that can be entered, for the complaint is the device that warns of that amount. Another item that can be consulted about a limit is a Statement of Damages which can be served on the defendant. In any event a motion to dismiss is not the tool. Your question makes it clear to me that you need a lawyer to help you.

    The advice provided is in good faith but not a guaranty of accuracy under all circumstances.

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