Q: In California Superior court, for motion for leave to amend complaint pursuant to CCP section 473(a)(1).
Hearing on Demurrer and Motion to Strike is scheduled by the Defendant, with request not allow Amended Complaint. Defendant informed Plaintiff that Plaintiff will have to ask Court for leave to amend complaint.
Should Plaintiff schedule hearing on Motion for leave to file the Amended Complaint?
Hearing must be different from hearing on Demurrer, additional hearing?
A: Defendants file demurrers. It's what they do. In every demurrer, Defendants will ask that the demurrer be sustained without leave to amend. It's what they do. When you respond to the demurrer (i.e. file your opposition), you ask for leave to amend. Meaning, you oppose the demurrer on its substantive grounds, but also ask that in the event the court decides to sustain the demurrer (grant the demurrer), that the court afford you leave to amend. You do not need to file a separate motion asking for leave to amend. You need to make a showing however, in your opposition papers, that if you are granted leave to amend, that you will be able to state facts sufficient to overcome another demurrer.
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A: I agree with Tobie Waxman above me. You do not need to file separate motion papers for leave to amend. Consulting with an attorney experienced in personal injury and medical malpractice law in California would be beneficial to navigate this process effectively.
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