In a contract case, A sues B
A filed the complaint with only one cause of action on 3/15
B filed demurrer on 4/20, to be heard on 5/22
(1) A worried he could lose the demurrer due to some defects in the complaint;
(2) A realized he must file an amended complaint
1. shall A file amended complaint with or without filing a motion to amend in advance? and when ?
2. shall A do something to the demurrer?
3. Anything else shall A be aware of?
Assuming you are "A":
1. As long as you file your amended complaint before 5/22, you can do so without filing a motion for leave to amend. If the demurrer is heard on 5/22, the court may or may not allow you "leave to amend," so if you can get your amended complaint on file before 5/22, that would be best. In fact, you should aim to get it on file several days in advance of 5/22 so that the court and the opposing party will know that the hearing cannot go forward on 5/22.
Code of Civil Procedure Section 472 addresses this issue: "Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment."
2. As noted above, if you file your amended before the hearing, the hearing will be "moot." However, you should either check with the court or the opposing party (or its counsel, if it has one) to make sure the hearing goes "off calendar" so that you do not need to appear. If the court doesn't automatically take the hearing off calendar, the opposing party will need to call the court to request that it be taken off.
3. Yes. There is a LOT you should be aware of, and far too much to address here. Without an attorney, you are at an extreme disadvantage because you will need to guess at everything. Pro per plaintiffs are not often successful in their cases, and even they are, they could have been more successful had they retained an attorney. If you have any chance of prevailing on your claim, and the defendant has the money to pay you, there is likely an attorney out there who will take your case on a contingency basis (you don't pay unless you win). There are also attorneys that can offer "behind the scenes" help (limited scope representation) to keep your legal bills to a minimum.
Even with a lot of internet research and questions posted here, you will never know everything you need to know to be successful in the case, and you will likely miss key deadlines, which could jeopardize your case. Additionally, if you are suing on a contract and only have one cause of action, I am pretty confident you are already missing out on potential claims that could have been alleged. The fact that the opposing party has demurred to the complaint also suggests that you may already be out-lawyered.
Now that the standard "get an attorney" speech is concluded, in terms of helpful advice for amending your complaint:
Look at the California jury instructions for the cause of action you have sued on. http://www.courts.ca.gov/partners/317.htm If that is breach of contract, your complaint should provide information about every element listed in jury instruction 303. If you have a written contract, include a copy as an exhibit to the complaint and make specific references to any portions the defendant breached.
Also, you can learn from the demurrer. If the demurrer says "Plaintiff failed to allege X,Y and Z," you know that your amended complaint should now allege X, Y, and Z. The demurrer almost always educates you as to what you need to add to fix your complaint.
Attorney Darrow has given you an excellent, detailed response.
Basically, Code of Civil Procedure section 472 allows you to file a First Amended Complaint as a matter of right before any defendant files an Answer. Therefore, if no defendant has yet answered, you can go ahead and file a First Amended Complaint without needing to file a motion for leave to amend.
The demurring defendant will most likely take the demurrer off calendar. Even if not, the judge will likely rule that the demurrer is moot in light of your filing a First Amended Complaint.
You should definitely consult with an attorney to make sure your First Amended Complaint will withstand another demurrer.
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. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
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