QUESTION: What authorities/codes provide guideline for accepting Amended Response within 10 days of filing the original Response? Does your court have different timeline?
RESPOND TO: actsoutherncal@outlook.com or comment below
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How does one file for a amended response
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RESPONSE #2:
CRC Rule 5.2 (d) states – Except as otherwise provided in these rules, all provisions of law applicable to civil actions generally apply to a proceeding under the Family Code if they would otherwise apply to such proceeding without reference to this rule. To the extent that these rules conflict with provisions in other statutes or rules, these rules prevail.
Since there is no special rules governing amended response CRC title 5 and Family Code, the regulations listed in Code of Civil Procedure apply.
Per CCP 472 (a) A party may amend its pleading once without leave of the court at any time before the answer or demurrer is filed, or after a demurrer is filed but before the demurrer is heard if the amended complaint, cross-complaint, or answer is filed and served no later than the date for filing an opposition to the demurrer. A party may amend the complaint, cross-complaint, or answer after the date for filing an opposition to the demurrer, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.
Since plaintiff may file demurrer to answer within 10 days after the service of the answer per CCP 430.40 (b), the same rules applies in amended response per the listed above.
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RESPONSE #1:
In response to your inquiry for authority/codes regarding amended responses, please see FC 2020 and CCP 471.5 – 473.
The code sections aren’t very clear though regarding actual timelines. It says 30 days to file an initial response (although we know a response can be filed beyond 30 days if default hasn’t been entered yet). It doesn’t provide a timeframe for an amended response. Often times, the Respondent files a motion requesting leave to amend and it’s the judge’s decision. Once/if the court grants the motion, the amended pleading is filed. The tricky part is whether the clerk’s office can accept that amended pleading without a motion and, if so, should the clerk’s office abide by some set of rules or timeframe. Unfortunately the authority cited above doesn’t go into such detail and I’m not aware of anything more specific.
I wish I could be of more help! It’s tricky.
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