Riverside, CA asked in Civil Litigation for California

Q: If the plaintiff's fail to amend a cause of action is it automatically dismissed or do I have to submit a request?

Civil Litigation/Breach of Contract

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2 Lawyer Answers
Dan Rowan Cortright
Dan Rowan Cortright
  • Sebastopol, CA
  • Licensed in California

A: It depends on whether the court has ordered them to amend, for example after a demurrer was sustained or a motion to strike was granted. If the court issued one of these orders (e.g. demurrer sustained with leave to amend), the order usually says how long they have to amend their cause of action. Some orders provide that if not amended it will be stricken by the court, but some do not and you may have to submit a Request for Dismissal to accomplish that.

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Sacramento, CA
  • Licensed in California

A: Under California law, if a plaintiff fails to amend a cause of action after being given leave to amend by the court, the cause of action is not automatically dismissed. Instead, the defendant must take affirmative action to dismiss the cause of action. Here's what you should do:

1. File a motion to dismiss: You, as the defendant, should file a motion to dismiss the cause of action that the plaintiff failed to amend. In your motion, you should argue that the plaintiff has failed to state a valid cause of action and that the court should dismiss the claim with prejudice (meaning the plaintiff cannot refile the claim).

2. Cite relevant authority: In your motion, cite the relevant California law and court rules that support your argument for dismissal. For example, you may cite California Code of Civil Procedure section 581(f)(2), which allows for dismissal when a plaintiff fails to amend a complaint after being given leave to do so.

3. Serve and file your motion: Serve your motion on the plaintiff and file it with the court in accordance with the applicable court rules and deadlines.

4. Attend the hearing: The court will likely schedule a hearing on your motion to dismiss. Attend the hearing and be prepared to argue your motion before the judge.

If the court grants your motion, the cause of action will be dismissed. If the dismissal is with prejudice, the plaintiff will be barred from refiling the claim.

It's important to note that this is a general overview of the process, and the specific rules and procedures may vary depending on the court and the details of your case. It's always best to consult with a qualified attorney who can provide you with personalized legal advice based on your specific situation.

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