Opposing a motion for leave to amend in California

Opposing a motion for leave to amend in California is the topic of this blog post. 

The opposition should be filed at least nine (9) court days before the hearing and should be served by personal service or overnight mail as required by Code of Civil Procedure section 1005.

If you have been served with a motion requesting leave to amend a pleading you should first carefully review the motion and supporting documents to ensure that they comply with the provisions of California Rule of Court 3.1324, and that they contain sufficient facts and evidence to support the motion. 

Any party requesting leave to amend in California must comply with the provisions of California Rule of Court 3.1324 or risk having their motion denied. Rule 3.1324 states that

“(a) Contents of motion

A motion to amend a pleading before trial must:

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(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.

(c) Form of amendment

The court may deem a motion to file an amendment to a pleading to be a motion to file an amended pleading and require the filing of the entire previous pleading with the approved amendments incorporated into it.

(d) Requirements for amendment to a pleading

An amendment to a pleading must not be made by alterations on the face of a pleading except by permission of the court. All alterations must be initialed by the court or the clerk.

While California does follow a policy of great liberality in permitting amendments there are exceptions which will be discussed in this blog post.

The first exception as held by a California Court of Appeal is that the policy of great liberality in permitting amendments should be applied only where no prejudice is shown to the adverse party.

Prejudice can include a delay of the trial or increased costs due to additional discovery among other factors.

Other exceptions include a lack of diligence and a long unexplained delay in requesting leave to amend.  One California Court of Appeal case held that it is well settled in California that a long unexplained delay in requesting leave to amend is a significant factor that may uphold a denial of leave to amend. Other cases have held that unwarranted delay in itself may be grounds for denial of leave to amend.

Attorneys or parties in California who would like to view a portion of a 9 page sample opposition to a California motion for leave to amend that contains includes brief instructions, a memorandum of points and authorities with citations to case law supporting the opposition, sample declaration and proof of service sold by the author of this blog post can use the link shown below.

Sample Opposition to California Motion for Leave to Amend by Stan Burman on Scribd

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.


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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.