PLEADINGS

Question 1

Amendments as a Matter of Course

Answer 1

A party may amend its pleading

1. Once within 21 days of its service or
2. within 21 days after service of the responsive pleading or pre-answer motion, whichever is earlier

Otherwise, written consent of the opposing party or leave of the court is required. The court must freely give leave to amend a pleading when justice so requires.

Question 2

California - Amendments

Answer 2

In California, a party may amend its pleadings ONCE without leave of the court at any time before a responsive pleading is filed. Otherwise, amendments are allowed with consent of the opposing party, or by leave of court

Question 3

Relation-Back Doctrine

Additional Claim

Answer 3

An amendment to a pleading relates back to the date of the original pleading when the

(i) law that provides the applicable statute of limitations allows relation back, or
(ii) amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out in the original pleading.

Question 4

Relation-Back Doctrine

Change of Party or Party Name

Answer 4

An amendment to a pleading relates back to the date of the original pleading when the amendment changes the party or the party name against whom a claim is asserted if

1. an amendment asserts a claim or defenses that arose out of the conduct, transaction, or occurrence set out in the original pleading
2. the new party received notice of the action within 90 days of filing, and
3. the party knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity

Question 5

California - Relation Back

Claims

Answer 5

In California, a party may amend his complaint to include an additional claim even if the statute of limitations has run out as longs the additional claim concerns the same

1. general facts,
2. injury, and
3. offending instrumentality

Question 6

California - Relation Back

Parties

Answer 6

In California, a party may amend his complaint to include an additional party or correct the name of a wrongly named party even if the statute of limitations has run out as long as he

1. named Does in the original complaint
2. includes charging allegations in the original complaint
3. was truly ignorant of the defendant’s identity
4. acts with reasonable diligence and
5. amends within THREE years