What Are Variances in Civil Pleadings?

California’s Code of Civil Procedure, in Part 2, Title 6, Chapter 8, concerns variances in pleadings in civil actions in this state. Chapter 8 is titled, “Mistakes in Pleadings and Amendments.”

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

Section 470 provides 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 specifies that, where the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular way, but in its general scope and meaning, it is not to be deemed a case of variance, but a failure of proof.

Section 471.5 states that, if the complaint is amended, a copy of the amendments must 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 affected. The defendant must answer the amendments, or the complaint as amended, within 30 days after service, or at some other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases. The terms “complaint” and “defendant” are defined.

Section 472 authorizes 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. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading is computed from the date of service of the amended pleading.

Section 472a provides 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 must allow an answer to be filed upon terms as may be just. If a demurrer to the answer is overruled, the action must proceed as if no demurrer had been interposed, and the facts alleged in the answer are considered as denied. In addition, there are rules if a demurrer is sustained, if a motion to strike is granted, and if a motion to dismiss is denied.

Section 472b specifies 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 states 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. Three specified types of orders 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 must include in its decision or order a statement of the specific ground(s) upon which the decision or order is based which may be by reference to appropriate pages and paragraphs of the demurrer. The party against whom a demurrer has been sustained may waive these requirements.

Section 473 authorizes the court, in furtherance of justice, 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; and may upon like terms allow an answer to be made after the time limited by this code.

Section 473.1 allows the court, upon terms as may be just, 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. Application for this relief must be made within a reasonable period of time after the court takes jurisdiction over the practice.

Section 473.5 specifies 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, he or she 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.

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

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 it was prejudicial, and that by reason of the error, ruling, instruction, or defect, the party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if the error, ruling, instruction, or defect had not occurred or existed.