Approved: Leave to file proposed cross complaint

[Learnin]

Happy Turkey Day all.

Question.

If a Motion For Leave To File Proposed Cross Complaint is granted, can the cross complaint then be changed/edited before filing?

The Opposition pointed out a couple potential deficiencies. Can those potential deficiencies be 'fixed' by editing/adding (but not removing anything) some detail?

Or must the proposed cross complaint be filed as it was orginally submitted, and then deal with any deficiencies by defending their predictable demurrer?

[racecar]

CA Codes (ccp:469-475)

473. (a) (1) The court may, in furtherance of justice, and on any

terms as may be proper, allow a party to amend any pleading or

proceeding by adding or striking out the name of any party, or by

correcting a mistake in the name of a party, or a mistake in any

other respect; and may, upon like terms, enlarge the time for answer

or demurrer. The court may likewise, in its discretion, after notice

to the adverse party, allow, upon any terms as may be just, an

amendment to any pleading or proceeding in other particulars; and may

upon like terms allow an answer to be made after the time limited by

this code.

Nestle v. Santa Monica (1972) 6 C3d 920, 939

Morgan vs. Superior Court (1959) 172 CA 2d 527, 530

[Learnin]

Thanks Racecar.

Hmmm. So that answer has me think you're saying to file it/serve it, then put in a motion asking to amend it.

That doesn't specifically answer the question of 'can a proposed cross complaint be edited to some degree after granting and then file/serve it'.

Hmmm, although:

CCP 472. "Any pleading may be amended once by the party of course, and

without costs, at any time before the answer or demurrer is filed, or

after demurrer and before the trial of the issue of law thereon, by

filing the same as amended and serving a copy on the adverse party,

and the time in which the adverse party must respond thereto shall be

computed from the date of notice of the amendment."

So I could file it/serve it as is, and then the next day file/serve an amended copy? From what the above says, I could.

Agree?

So:

1. Can a granted proposed cross complaint be edited before filing?

2. If I file/serve the granted proposed cross complaint as is, can I then, the next day, file/serve an amended cross complaint (without needing to ask permission/file a motion to amend)?

[BrunoTheJDBkiller]

If a Motion For Leave To File Proposed Cross Complaint is granted, can the cross complaint then be changed/edited before filing?

Why would you file such a motion if you did not intend to change the complaint? Why would they grant you permission, so you could file the same complaint again?

[Learnin]

I was well past the time period to file a cross complaint (didn't file one with my answer), but a trial date hadn't been set yet.

So I needed to file a motion asking permission to file a cross complaint and included the proposed cross complaint.

I was just asking for permission to file a cross complaint, not asking to change a previously filed cross complaint.

[skippy1960]

It sounds as though you attached the cross complaint with the Motion for Leave. In there oposition to your Motion to Leave, the otherside pointed out a couple of issues with the cross complaint?

Assuming this is correct, fix the pleading and file and serve it on the otherside. The first or example pleading attached to your Motion, has never been served and is not part of the court record to the extent until it has been filed, payment made to clerk and it has been served on the otherside.

Don't need to send any thank you notes to the otherside, either.

Sometimes it is better to do first and ask permission later, with reasonable diligence relate the CCP. The judge said yes, he didn't yes and this cross complaint only....

Best of Luck

[Learnin]

It sounds as though you attached the cross complaint with the Motion for Leave. In there opposition to your Motion to Leave, the other side pointed out a couple of issues with the cross complaint?

Correct. Most of their opposition wasn't even relevant to the content of my cc, but they made the point that it was overall deficient; "The Defendant's causes of action are vague and ambiguous as it is not clear exactly which statutes have been allegedly violated."

I definitely had statues in there, but potentially I could have more 'who what how where why' detail of 'they did X and thus violated statute...'

So I'll think I'll add in some detail, it's not a lot of change and deletes nothing so if they do make a case that I changed it without permission, I can respond with that only detail was added and nothing significant changed or removed.

[skippy1960]

You need enough detail to make your complaint, along with the statutes, but you don't have to offer so much detail that you are giving your whole case out in the pleading.

Use their pleading or lack of pleading as an example as to how much detail needs to be included.....

Example- They were notified in writing on 11/22/2012 of X.

Not- They were notified in writing on 11/22/2012 per Exhibit A, sent CMRR of X.

Point being most Debt Pleadings are pretty weak and just the bare minimum, you are required only to the make the charge of the issue. Not support with evidence, and law citations in your complaint.....

[BrunoTheJDBkiller]

Oh, okay, that wasn't clear. Saves you the extra filing fee, eh? They'll probably object that it's untimely.

[Seadragon]

after that need leave to file motion for leave to file an amended complaint. so you have to look into that.

It sounds as though you attached the cross complaint with the Motion for Leave. In there oposition to your Motion to Leave, the otherside pointed out a couple of issues with the cross complaint?

Assuming this is correct, fix the pleading and file and serve it on the otherside. The first or example pleading attached to your Motion, has never been served and is not part of the court record to the extent until it has been filed, payment made to clerk and it has been served on the otherside.

Don't need to send any thank you notes to the otherside, either.

Sometimes it is better to do first and ask permission later, with reasonable diligence relate the CCP. The judge said yes, he didn't yes and this cross complaint only....

Best of Luck