Opposing Counsel filed the Demurer and set the hearing for the same date as the initial conference, which is 2 months from now. I have a First Amended Complaint and Motion to file it ready and my question is do I need to set a Hearing by calling the Chambers or just bring it to Court and file with open date on it ?
Thank you !
Take a look at Code of Civil Procedure section 472. If none of the defendants has filed an answer to the original complaint, the plaintiff has the absolute right to file an amended complaint. Filing such an amended complaint should make the demurrer moot, because the challenge to the pleading is no longer operative. In such circumstances, you do not have to file a motion for leave to amend. Go to the conference and if the hearing on the demurrer is still on calendar, tell the judge that you had filed an amended complaint. The thing is, if the hearing is two months from now, that might give defendant's counsel enough time to file a demurrer to your amended complaint and set it for hearing on the date of the original complaint. You might consider waiting a few weeks before filing the amended complaint (but only if there are no other defendants who could file an answer to the complaint and thereby take away your right to amend the complaint without first obtaining leave of court).
If the only response to the original complaint is a demurrer, then you can file a first amended complaint without court permission. If you do that, the demurrer will come off calendar. Make sure you file it before the hearing, and serve opposing counsel. If the demurrer hearing is close, you should also deliver a courtesy copy to the courtroom.
If any defendant answered, then you need to file the motion. Contact the clerk and set a hearing date. You may want to check the court website - a lot of courts are doing online scheduling now.
If none of the defendants have filed an Answer, you have the right to file a First Amended Complaint without leave of court. In other words, you do not need to file a Motion for Leave to Amend. If you do need to file a motion, you must indicate the hearing date and time on the Notice of Motion, in which case, you must obtain a hearing date from the court clerk.
