Skip to main content

Can I amend my complaint to add abuse of process?

San Diego, CA |

I filed an unlimited civil case. When the defendant was served with the complaint she threatened to ruin me however she could, including filing false and retaliatory police reports. The case is in discovery and heating up. The defendant is desperate and followed through and did file a false and malicious police report against me. Can I file a motion to leave and amend my complaint to add a cause of action for abuse of process?

I already had a cause for IIED. Could I also add libel and/or slander?

+ Read More

Attorney answers 4


As a general proposition, yes. “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).)
Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.)

The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (See Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.)

Courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence or added costs of preparation, increased burden of discovery, etc. (P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345.) If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails, even if sought as late as the time of trial. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564–565.)

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.


Generally speaking, yes - motions for leave to amend a complaint are liberally granted. If you are not very close to the trial date and there is no prejudice to the other parties (i.e. sufficient time for preparation of defenses to the newly added causes of action), leave to amend is generally granted. Do read the disclosure below - this is not a legal opinion on your particular case as not enough facts are known.

Nothing in this response is intended as a legal consultation or advice on your particular case, and is provided only as a general statement of information, and only with respect to California law. No attorney-client relationship is created and no contract for legal services is formed as a result of this posting or other postings before or after this posting. Various limitation periods, deadlines and cut-offs also may apply. You should therefore seek private consultation from an attorney regarding the merits of your case and the deadlines involved in your matter. Since this is a public forum, this posting is not confidential.


You should ask yourself whether you should do so now or not. You should seek legal advice as to whether you risk an anti-SLAPP motion or not. Such causes of action are not favored so might weaken you case. Get legal advice.

Note: This response is informational only and not advice. Please retain counsel if you desire legal advice. Thank you.

Licensed to practice law in California only. The information above is provided to help you get a better understanding of the questions you need answered. You are advised to seek legal advise directly from an attorney in your area who can review all the facts and the law locally and advise you.


All you would do by adding such a cause of action is make yourself liable for thousands of dollars in attorney's fees. The law has created certain "privileges" from liability in tort, meaning that the underlying public interest in making the communication exceeds the public interest in placing liability on it.

Reports to the police of a crime are absolutely privileged. She could have told the police the grossest lies about you and, with one small exception, you could not do anything about it. The idea is that the law should not be able to hinder people's ability to report crimes to the police by even the threat of a civil suit. Lying to the police is still a crime, so don't do it.

The one small exception is for malicious prosecution. If she induces the police and prosecutor to prosecute you in court, you may recover. But you would first have to prove that the criminal case ended under circumstances showing your innocence: either an acquittal or a dismissal for lack of evidence.

A suit for false reports to the police, or for anything else preliminary to court proceedings, is considered a Strategic Lawsuit Against Public Participation, or SLAPP. The court will entertain an early motion to dismiss and then impose attorney's fees on you for the cost of dismissal.



The results of the investigation and DA's determination as to the reports is still pending. In the meantime my civil suit is in discovery and her attorney is trying to negotiate a settlement, but that is in process. Can I use the false report to leverage a better settlement, or try to get her to retract her false report, or separate the issues. It does not seem fair that I would have no recourse for justice having been subjected to the increased stress of someone filing a false report against me. It seems like I have more justice under a claim of IIED for mere threats to file a false police report than for her having actually filed a false report. that doesn't seem right.

James Carl Eschen III

James Carl Eschen III


I will not minimize your frustration and anger. I do not know how you would leverage the false report to get a settlement, but I would be very careful. Note that any threat of prosecution, even ones that are fully justified, can be considered extortion. Always be careful about raising the issue of criminal wrongdoing in a civil context.

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer