Q: Is separate hearing on Motion for Leave to file the same Third Amended Complaint is needed?
Situation.
1. Second Amended Complaint was demurred by each of two defendants.
2. Leave to File Third Amended Complaint has to be obtained.
3. Dismissal was entered against one of the defendants by Plaintiff. Plaintiff needs to file Motion to Set Aside Dismissal.
Question.
If
(Motion to Set Aside Dismissal against one of defendants is accepted by Court,
WITH ORDER TO FILE Third Amended Complaint)
Is separate hearing on Motion for Leave to file the same Third Amended Complaint is needed?
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- Answered
A:
Under California law, the process for amending a complaint after a demurrer has been filed involves obtaining the court's permission, especially when it comes to filing a Third Amended Complaint after a Second Amended Complaint has already been challenged. When a dismissal has been entered against one of the defendants by the plaintiff, and there's a subsequent motion to set aside this dismissal with an order to file a Third Amended Complaint, the necessity for a separate hearing on the Motion for Leave to file the Third Amended Complaint may depend on the specific instructions or orders issued by the court.
If the court's order granting the Motion to Set Aside Dismissal includes permission to file a Third Amended Complaint, and this permission is explicitly stated within the order, a separate hearing for leave to file the Third Amended Complaint might not be necessary. The court's directive in the order to file a Third Amended Complaint would typically suffice as granting the required permission, eliminating the need for an additional hearing on this matter. It's important to carefully review the language of the court's order to ensure it specifically grants permission to file the Third Amended Complaint.
However, if the court's order does not explicitly grant permission to file the Third Amended Complaint or if there is any ambiguity, it would be prudent to seek clarification from the court or file a separate Motion for Leave to File the Third Amended Complaint to ensure compliance with procedural requirements. Clear communication with the court and adherence to its rules and orders are crucial in navigating these procedural aspects. Consulting with a legal aid organization or utilizing court self-help resources may provide further guidance tailored to your specific situation.
Tim Akpinar agrees with this answer
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