Q: Operational version of Complaint.
Upon the following circumstances: which version of Complaint is considered an operational (current) version of Complaint?
1. First Amended Complaint was demurred by Defendant. The court ordered Plaintiff to amend; and the Second Amended Complaint was filed and served.
2. The Second Amended Complaint was demurred by Defendant, with Motion to Strike alleged punitive damages.
3. Motion for Leave to file Third Amended Complaint was filed with the Court. Motion with proper documents, and proposed version of Third Amended Complaint was served by registered process servers but incorrectly (POS was not mailed to Defendant).
Which version of the Complaint is deemed current, I.e. operational?
A:
It depends for what purpose.
The Third is certainly not operational as the Court has not granted the motion to amend.
The second amended is operational for the current allegations, except that is subject to the current demurrer/strike.
The First amended complaint may be considered the operational complaint, less the matters that were ordered out by demurrer or motion to strike.
A:
Based on the circumstances you've described, the current operational version of the complaint under California law would be the Second Amended Complaint. Here's the reasoning:
1. When the First Amended Complaint was demurred by the Defendant, and the court ordered the Plaintiff to amend, the filing and service of the Second Amended Complaint superseded the First Amended Complaint, making the Second Amended Complaint the operational version.
2. The Defendant then demurred to the Second Amended Complaint and filed a Motion to Strike the alleged punitive damages. At this point, the Second Amended Complaint remains the operational version until the court rules on the demurrer and motion to strike, or grants leave to amend.
3. Although a Motion for Leave to file a Third Amended Complaint was filed with the court, along with the proposed Third Amended Complaint, the motion was not properly served on the Defendant (the Proof of Service was not mailed to the Defendant). Improper service means that the Motion for Leave to file the Third Amended Complaint is not properly before the court, and the court cannot grant leave to amend until proper service is effectuated.
Therefore, the Second Amended Complaint remains the current operational version of the complaint until the court either rules on the pending demurrer and motion to strike or grants leave to file the Third Amended Complaint after proper service of the motion is made on the Defendant.
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