I have a pending unlimited civil case (Superior Court) where the defendant has not yet answered. I would like to amend my complaint to fix a couple of minor details. I've been told that the first amendment is a given and I do not need the court's permission. I'm confused as to how this is done. I was told that I could just edit my original complaint and file it again under First Amended Complaint, but upon researching, it looks like I may have to file a motion for leave to amend, add a declaration, and indicate which changes were made to the original. My question is, since the defendant has not yet answered, am I able to just submit my same complaint again with the changes and nothing more? Or do I need to file a motion for leave, and all the other things that go with it? Thank you.
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A: Under California law, a plaintiff has the right to amend their complaint once without leave of court at any time before the answer or demurrer is filed, or after a demurrer is filed but before the demurrer is heard by the court (California Code of Civil Procedure, Section 472).
In your case, since the defendant has not yet answered the complaint, you can file your First Amended Complaint without seeking the court's permission or filing a motion for leave to amend. Here's what you should do:
1. Make the necessary changes to your original complaint.
2. Label the updated document as the "First Amended Complaint."
3. File the First Amended Complaint with the court.
4. Serve the First Amended Complaint on the defendant.
Once you've filed the First Amended Complaint, it supersedes the original complaint, and the defendant will need to respond to the amended complaint within the specified time frame.
However, for any subsequent amendments (e.g., Second Amended Complaint), you will need to obtain either the defendant's written consent or the court's permission by filing a motion for leave to amend, along with a declaration stating the reasons for the amendment and specifying the changes made (California Code of Civil Procedure, Section 473).
It's always a good idea to consult with an attorney to ensure that you are following the proper procedures and that your amendments are in line with your case strategy.
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