Mistakes in Legal Pleadings

Code of Civil Procedure Part 2, Title 6, Chapter 8 deals with variances and mistakes in civil action pleadings and amendments.

Section 469 states that variance between the allegation in a pleading and the proof is not deemed material, unless it has actually misled the adverse party to his or her prejudice in maintaining their action or defense upon the merits. If it appears that a party has been misled, the court may order the pleading to be amended.

Section 470 specifies that, where the variance is not material, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.

Section 471 says that, where the allegation of the claim or defense to which the proof is directed is unproved in its general scope and meaning, it is not to be deemed a case of variance, but a failure of proof.

Section 471.5 provides that, if the complaint is amended, a copy of the amendments are to be filed, or the court may require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants. The defendant answers the amendments, or the complaint as amended, within 30 days after service, and judgment by default may be entered upon failure to answer, as in other cases. The terms “complaint” and “defendant” are defined.

Section 472 allows a party to amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, 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.

Section 472a states that a demurrer is not waived by an answer filed at the same time. If a demurrer to a complaint or to a cross-complaint is overruled and there is no answer filed, the court allows an answer to be filed upon such terms as may be just. If a demurrer to the answer is overruled, the action proceeds as if no demurrer had been interposed, and the facts alleged in the answer are considered denied.

If a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just and fix the time within which the amendment or amended pleading is to be filed. If a demurrer is stricken and there is no answer filed, the court allows an answer to be filed on terms that are just.

If a motion to strike is granted, the court may order that an amendment or amended pleading be filed upon terms it deems proper. If a motion to strike a complaint or cross-complaint is denied, the court allows the party filing the motion to strike to file an answer.

Section 472b provides that, when a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes.

When an order sustaining a demurrer without leave to amend is reversed or otherwise remanded by any order issued by a reviewing court, any amended complaint must be filed within 30 days after the clerk of the reviewing court mails notice of the issuance of the remittitur.

Section 472c specifies that, when any court makes an order sustaining a demurrer without leave to amend, the question as to whether or not the court abused its discretion in making an order is open on appeal even though no request to amend the pleading was made. There are three specified orders that are deemed open on appeal where an amended pleading is filed after the court’s order. The phrase “open on appeal” is defined.

Section 472d provides that, whenever a demurrer in any action or proceeding is sustained, the court includes in its decision or order a statement of the specific ground or grounds upon which the decision or order is based which may be by reference to appropriate pages and paragraphs of the demurrer.

Section 473 authorizes the court to 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, after notice to the adverse party, allow an amendment to any pleading or proceeding in other particulars.

When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial, and may, when the postponement will by the amendment be rendered necessary, require, as a condition to the amendment, the payment to the adverse party of any costs as may be just.

Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of three specified actions. However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief is not made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.

In addition, the court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.

Section 473.1 allows the court to relieve a party from a judgment, order, or other proceeding taken against him or her, including dismissal of an action, where a court of this state has assumed jurisdiction over the law practice of the attorney for the party and the judgment, order or other proceeding was taken against the party after the application for the court to assume jurisdiction over the practice was filed.

Section 473.5 states that, when service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, they may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion must be served and filed within a reasonable time as specified.

Section 474 provides that, when the plaintiff is ignorant of the name of a defendant, he or she must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and that defendant may be designated in any pleading or proceeding by any name. When the defendant’s true name is discovered, the pleading or proceeding must be amended accordingly.

The certificate or affidavit of service must state the fictitious name under which that defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. The foregoing requirements for entry of a default or default judgment are applicable only as to fictitious names designated pursuant to this section and not in the event the plaintiff has sued the defendant by an erroneous name.

Section 475 requires the court, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of the court, does not affect the substantial rights of the parties. No judgment, decision, or decree is to be reversed or affected by reason of any error, ruling, instruction, or defect, unless it appears from the record that the error, ruling, instruction, or defect was prejudicial.