Weston, WV asked in Civil Litigation for California

Q: If Plaintiff files Amended Complaint late (Court granted demurrer w/ leave to amend), isMotion to Strike a good option

Court granted Demurrer with leave to amend by a certain date - over 20 days. Plaintiff filed its Second Amended Complaint 3 days after the due date. What are the chances for a Motion to Strike in its entirety. What is case law for Motion to Strike

Related Topics:
1 Lawyer Answer
Eric Gene Young
Eric Gene Young pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
Answered
  • Santa Rosa, CA
  • Licensed in California

A: A motion to strike would not be the appropriate procedure, in my opinion. In California, a motion to strike lies against any irrelevant, false, or improper matter inserted in a pleading or when a pleading is not drawn in conformity with the laws of the state. (CCP 436.) A motion to strike might lie against the amended pleading once it is filed. The better approach would be to file a motion to dismiss under CCP 581(f)(2). Having said that, however, the decision whether to dismiss a case or not always lies within the sound discretion of the trial judge, even when an amended pleading is late, and a trial judge's decision whether to dismiss or not will only be overturned on appeal on a showing of abuse of discretion (the toughest civil appellate standard). (Harding v. Collazo.) A 3-day delay in filing an amended pleading may not strike a trial judge (who is used to delay upon delay) as being all that significant, particularly if there has been no prejudice caused by the delay. Keep in mind, in California, there is a strong, public policy favoring the amendment of pleadings, and the reason is because the law favors hearing legal matters on their merits. The policy favoring leave to amend is so strong that amendment must be permitted unless the adverse party can show meaningful prejudice which includes such results as the running of the statute of limitations, a delay of the trial, the loss of critical evidence, or added preparation costs. While I don't know the particulars of your situation, it seems unlikely that a short, 3-day delay would have caused such results, and in fact, the delay might be easily explained by many other circumstances. It could be inadvertence, innocent mistake, the party/attorney could be seriously ill, etc. You might want to find out why the amended pleading is late instead of rushing off and filing any motion. Good luck.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.