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What is a valid reason for requesting permission to allege new facts after demurrer ruling?

Walnut Creek, CA |

In the judge's demurrer temporary ruling, he stated "Plaintiff is not granted leave to amend to allege a completely new set of facts or causes of action not raised in the original complaint". When I go in front of the judge to advocate some changes in his tentative ruling, I'd also like to request permission to allege a new set of facts, and I'd like to know what arguments I can make for my request to be granted.

Attorney Answers 3

  1. There is insufficient background information regarding your case and your allegations to give you specific advice. Was your complaint or amended complaint verified under penalty of perjury? Generally speaking, leave to amend a complaint following a demurrer to an amended complaint is limited to correcting the allegations of the existing causes of action (as opposed to having the absolute right to amend once under Code of Civil Procedure section 472.)

    For general guidelines for arguing and seeking leave to add new causes of action or new defendants, take a look at Code of Civil Procedure section 472 and 473. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading... ” (Code of Civil Procedure § 473(a)(1).)

    Under California Rules of Court, Rule 3.1324, a separate declaration must accompany the motion to amend a pleading specifying the following: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. The motion must also include a copy of the proposed amendment, and identify by page, paragraph, and line number any additions to and deletions from the prior pleading. (CRC 3.1324(a).)

    Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

  2. assuming no one has answered the lawsuit - just file your new amended complaint before the hearing - the hearing will be moot.

  3. If I understand correctly, the Court TENTATIVELY granted the demurrer in part (at least). You want to argue that leave should be granted to amend further. This can be done at ORAL argument.

    Further, per Mr. Harting, you can file an amended complaint, as a matter of right PRIOR to the hearing. Or BEFORE the hearing on demurrer, you can file a motion to amend complaint. The latter is your better option.

    I know you may be resistant to hiring an attorney; however, I encourage you to do so. At least consult with an attorney. Additionally, many attorneys will represent you for limited aspects of your case, or may even be willing to write documents for you. This is considered alternative billing practices. Be sure to look around.

    Adam Jaffe Law Office of Adam Jay Jaffe 124 Lomas Santa Fe Dr, #204 Solana Beach, CA 92075 (619) 810-7964 This posting is provided for “information purposes” only and should not be relied upon as "legal advice". Nothing transmitted from this posting constitutes the establishment of an attorney-client relationship. Applicability of the legal principles discussed here may differ substantially in individual situations or in different states.