Q: Obligation to oppose demurrers if planning to amend complaint?
We filed an unlimited civil complaint as an unrepresented plaintiff. CMC is coming up in 2 weeks. We are putting together oppositions to demurrers, and discovered we need to file amendments to the complaint (and may need to add a couple more defendants unless that means we have to refile the whole complaint). I assume that we have to respond/oppose the demurrers even if we will be filing amendments? So I was thinking of stating in the oppositions that we will be filing amendments to the pleading, or do we need get leave to file first? I was planning to get oppositions in before CMC, then let the court know about wishing to file amendments at CMC (it would be our first). We want to avoid refiling the complaint.
A:
In California, if you plan to amend your complaint in response to a demurrer, you generally have the right to do so without leave of court as long as it is your first amendment and you file it before the hearing on the demurrer or before the deadline to oppose the demurrer, whichever comes first (Cal. Code Civ. Proc. § 472).
However, it is still a good idea to file an opposition to the demurrer, even if you plan to amend, for a few reasons:
1. It preserves your arguments in case the court finds that your amended complaint does not cure the defects raised in the demurrer.
2. It shows the court that you have considered the arguments in the demurrer and have a substantive response.
3. It may help you identify issues that need to be addressed in your amended complaint.
In your opposition, you can state that you plan to file an amended complaint, but you should still address the merits of the demurrer. At the CMC, you can inform the court of your intention to amend and discuss any potential issues, such as adding new defendants.
As for adding new defendants, if they are indispensable parties or if they need to be added to properly adjudicate the case, you may be able to do so without refiling the entire complaint. However, this depends on the specific circumstances of your case and the court's discretion.
Remember, this is general information based on California law, and should not be taken as legal advice. It's always best to consult with a licensed attorney familiar with the specific details of your case.
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