Motion for Leave to File Amended Pleading
(CA)

Summary

This template is a motion and notice of motion for leave to file an amended pleading in a civil action in California superior court. This template includes practical guidance and drafting notes. A party may amend a pleading one time "as a matter of course" (i.e., without filing a motion for leave of the court): • At any time before an answer, demurrer, or motion to strike is filed in response to the party's pleading –or– • After a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard, if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike Cal. Code Civ. Proc. § 472(a). Otherwise, a party may amend a pleading only by leave of the court. See Cal. Code Civ. Proc. §§ 473(a)(1), 576. Thus, if the time for amending a pleading as a matter of course has passed, you must file and serve a noticed motion requesting leave to file an amended pleading. See Hedwall v. PCMV, LLC, 22 Cal. App. 5th 564, 575 (2018); Leader v. Health Indus. of Am., Inc., 89 Cal. App. 4th 603, 613 (2001). The court may, "in furtherance of justice and on any terms as may be proper," allow a party to amend a pleading in any of the following ways: • Adding or striking out the name of any party • Correcting a mistake in the name of a party • Correcting a mistake in the pleading "in any other respect" • Amending the pleading "in other particulars" (e.g., by adding a cause of action or new theory of recovery) Cal. Code Civ. Proc. § 473(a)(1); see also Cal. Code Civ. Proc. § 576 (court may allow amendment of pleading at any time before or after commencement of trial in furtherance of justice and "upon such terms as may be proper"). Note that most courts have a template for amending a pleading to substitute the true name of a fictitiously named defendant. There is not a statutory deadline for requesting leave to amend a pleading, so motions to amend can appropriately be granted as late as the first day of trial or even during trial if the opposing party is alerted to the charges by the factual allegations in the original pleading and will not be prejudiced by the amendment. See W&W El Camino Real, LLC v. Fowler, 226 Cal. App. 4th 263, 270 (2014); Rickley v. Goodfriend, 212 Cal. App. 4th 1136, 1159 (2013). On the other hand, a court may deny an amendment to a pleading that would add a new cause of action or defense involving facts and theories not included in the original pleading, especially when inexcusable delay and prejudice to the opposing party are indicated. See Green v. Rancho Santa Margarita Mortg. Co., 28 Cal. App. 4th 686, 692–93 (1994); Avedissian v. Manukian, 141 Cal. App. 3d 379, 383 (1983). This template requests leave to file an entire amended pleading, which is the preferred practice, especially if there are numerous proposed changes to the pleading. Foster v. Sexton, 61 Cal. App. 5th 998, 1035 (2021). The statute and court rules also permit a motion for leave to "amend a pleading" or "file an amendment to a pleading." See Cal. Code Civ. Proc. §§ 473(a)(1), 576; Cal. Rules of Ct., Rule 3.1324(a)(1), (c). The court may deem a motion to file an amendment to a pleading to be a motion to file an amended pleading and require the filing of the entire previous pleading with the approved amendments incorporated into it. Cal. Rules of Ct., Rule 3.1324(c). The motion should comply with the general format and procedures applicable noticed motions (see Cal. Rules of Ct., Rules 2.100 et seq., 3.1100 et seq.), as well as the specific rules governing motions for leave to amend pleadings. See Cal. Rules of Ct., Rule 3.1324. The motion itself should: • Identify the party or parties bringing the motion • Name the parties to whom it is addressed • Briefly state the basis for the motion and the relief sought • State what allegations in the previous pleading are proposed to be deleted, if any, and state where, by page, paragraph, and line number, the allegations to be deleted are located • State what allegations are proposed to be added to the previous pleading, if any, and state where, by page, paragraph, and line number, the new allegations are to be added See Cal. Rules of Ct., Rules 3.1110(d)(1)–(3), 3.1324(a)(2), (3). In addition, the motion must be accompanied by: • A copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments (i.e., First Amended Complaint) • A notice of hearing on the motion • A supporting memorandum setting forth the moving party's legal arguments and authorities supporting the request for leave to amend the pleading • A separate supporting declaration specifying: o The effect of the amendment o The reasons why the amendment is necessary and proper o The date(s) when the facts giving rise to the amended allegations were discovered –and– o The reasons why the request for amendment was not made earlier. See Cal. Rules of Ct., Rules 3.1112(a), 3.1113, 3.1324(a)(1), (b). This template combines the motion and notice of motion into a single document, which is a common practice. Some attorneys prefer to also include the memorandum in the same document with the motion and notice of motion, which is generally permitted as long as the caption of the combined document separately specifies which documents are included. See Cal. Rules of Ct., Rule 3.1112(c). Any declarations supporting the motion should be a separate document. The proposed amended pleading should be included as an exhibit/attachment to the motion or supporting declaration. For a full listing of key content covering motion practice in California state court litigation, see Motion Practice Resource Kit (CA). For a full listing of key content covering fundamental civil litigation tasks throughout a California state court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (CA). For full discussion of the procedures and format requirements for noticed motions generally, including requirements for the supporting memorandum, see Motion Practice: Drafting, Serving, and Filing Noticed Motions (CA). See also Formatting Rules in Court Checklist (CA). For hearing procedures on noticed motions, see Motion Practice: Oral Argument and Post-decision Procedure (CA). The motion and accompanying papers should be filed with the court and served on all other parties who have appeared in the case within the time provided for other noticed motions under Cal. Code Civ. Proc. § 1005(b) and Cal. Code Civ. Proc. § 1010.6(a)(4)(B) (for electronic service). See Cal. Rules of Ct., Rule 3.1300(a); Cal. Code Civ. Proc. § 1014. For additional discussion of filing and service procedures, see Filing and Serving Documents Other Than Initial Complaint and Summons (CA). For more information on amended pleadings, Amending or Supplementing Pleadings (CA).