CA Practice Question - a bit involved

[tae007]

I am an AZ resident maintaining a civil action in CA. My Complaint has been filed and in response, the City demurrerd, but the private party answered. Cal.Civ.Pro. section 472 says P can amend once as of right b/f answer or demurrer is filed OR after demurrer but prior to trial.

So, since one defendant demurrered and one answered, do I need leave of the court to file an amended complaint? Or can I rely on the demurrer by the city and simply file an amended complaint? Does it matter that the amendments pertain only to the city - added 42 USC 1983 claims?

Any suggestions?

Thanks

 

[dee_dub]

Check out Barton v. Khan, Los Angeles County Super. Ct. No. YC051312:

"Thus, in this case of first impression, we must determine whether one defendant's filing of an answer divests the plaintiff of the right to amend the complaint with respect to the causes of action brought against other demurring defendants. We conclude that it does not...

Section 472 provides that a plaintiff may amend a pleading as a matter of course "at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon,*.*.*." The trial court interpreted the statute to mean that once an answer is filed in an action, the phrase "or after demurrer and before the trial of the issue thereon" disappears. Under this reading, however, all a defendant need do to cut off the plaintiff's right to amend as a matter of course, is to file concurrently an answer and a demurrer, as provided by section 430.30, subdivision (c). We cannot concur in this interpretation...

As we read the statute, a plaintiff has a right to amend his or her pleading at any time before a responsive pleading is filed and even after a responsive pleading is filed up to the time of the hearing on the demurrer.

So I gather that you still may file an amendment as of right.

 

[tae007]

Is this a published opinion? Thanks again!

 

[dee_dub]

Beats me. I'm Canadian. Your court reporting system is Greek to me.