Sample opposition to California motion for leave to amend

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This sample opposition to California motion for leave to amend is used when a party wishes to oppose the request of another party for leave to amend their pleading such as an answer or complaint on the grounds of lack of diligence, long unexplained delay and prejudice. The sample on which this preview is based is 9 pages long and includes brief instructions, a memorandum of points and authorities with citations to case law supporting the opposition, sample declaration and proof of service by mail. The author is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995.

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Sample opposition to California motion for leave to amend

  1. 1. 2 Any Attorney or Party Any Street Any Town, CA 55555 3 714-555-5555 4 Any Attorney or Party 1 5 6 7 8 Superior Court of the State of California 9 For the County of _________________ 10 11 Any Plaintiff, 12 13 14 15 Plaintiff, vs. Any Defendant, and DOES 1-5 Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. OPPOSITION TO MOTION FOR LEAVE TO AMEND__________; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF _________; EXHIBITS To subscribe to my FREE California weekly legal newsletter visit 19 20 21 http://www.legaldocspro.net/newsletter.htm and enter your e-mail address. Be sure to remove this notice and all other notices before 22 23 24 25 26 using this document. To view sample document packages for sale by LegalDocsPro visit http://www.legaldocspro.com/downloads.aspx 27 28 - 1 OPPOSITION TO MOTION FOR LEAVE TO AMEND ________________
  2. 2. 1 2 3 4 5 6 TO THE COURT, ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD: ______________, herein submits its opposition to the motion for leave to amend the LIST HERE WHETHER LEAVE TO AMEND IS SOUGHT FOR THE COMPLAINT, CROSSCOMPLAINT OR ANSWER filed by _____ on the grounds that LIST HERE THE GROUNDS 7 SUCH AS LACK OF DILIGENCE, LONG UNEXPLAINED DELAY, PREJUDICE, ETC. 8 precludes this court from granting leave to amend. 9 10 11 12 13 14 The Opposition shall be based on this opposition, the attached Memorandum of Points and Authorities, the declaration of _____________ and Exhibits attached thereto, on the complete files and records of this action, and on such other oral and/or documentary evidence as may be presented at the hearing on the Motion. Be sure to modify these paragraphs to suit your individual 15 16 17 situation. Do NOT just use the wording here unless it definitely applies to your particular situation. 18 19 Dated________________ 20 _______________________________________________ ANY ATTORNEY OR PARTY 21 22 23 24 25 YOU MUST SERVE AND FILE THIS OPPOSITION AT LEAST NINE (9) COURT DAYS BEFORE THE HEARING. COURT DAYS MEANS MONDAY THROUGH FRIDAY, EXCEPT FOR COURT 26 27 HOLIDAYS. 28 - 2 OPPOSITION TO MOTION FOR LEAVE TO AMEND ________________
  3. 3. 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 INTRODUCTION 4 DESCRIBE THE CASE AND PROVIDE SOME RELEVANT INFORMATION SUCH 5 6 AS TYPE OF CASE, DATE(S) OF TRIAL, DATE AND DETAILS OF JUDGMENT, ETC. _____________ contends that they should be granted leave to amend LIST HERE 7 8 9 WHETHER LEAVE TO AMEND IS SOUGHT FOR THE COMPLAINT, CROSSCOMPLAINT OR ANSWER. 10 ___________ contends that the motion for leave to amend should be denied on the grounds 11 12 13 that the LIST HERE THE GROUNDS SUCH AS LACK OF DILIGENCE, LONG UNEXPLAINED DELAY, PREJUDICE, ETC. precludes this court from granting leave to amend. 14 15 __________ opposes the motion on the grounds that no specific facts or evidence have been submitted that would support the granting of a new trial. 16 LIST HERE THE SPECIFIC DETAILS SUPPORTING YOUR OPPOSITION TO 17 18 THE MOTION FOR LEAVE TO AMEND SUCH AS THE LACK OF DILIGENCE, LONG 19 UNEXMPLAINED DELAY, OR THE PREJUDICE THAT WILL BE SUFFERED IF LEVEL 20 TO AMEND IS GRANTED. If any documents support your contentions be sure to attach them as 21 Exhibit “1”, and so on. 22 Be sure to modify these paragraphs to suit your individual 23 24 situation. Do NOT just use the wording here unless it definitely applies 25 26 to your particular situation. 27 /// 28 - 3 OPPOSITION TO MOTION FOR LEAVE TO AMEND ________________
  4. 4. 1 II. 2 LEGAL ARGUMENT 3 4 5 6 7 8 9 10 11 12 A. IT IS SETTLED IN CALIFORNIA THAT LACK OF DILIGENCE, A LONG UNEXPLAINED DELAY IN REQUESTING LEAVE TO AMEND OR PREJUDICE TO THE OTHER PARTY IS A VALID REASON TO DENY LEAVE TO AMEND Numerous cases have held that despite the general policy of great liberality in granting leave to amend, a lack of diligence, long unexplained delay in requesting leave to amend or prejudice to the adverse party is a valid reason for denying leave to amend. The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the 13 amendment. Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613. (Citations 14 and quotations omitted.) 15 16 17 18 19 20 21 22 Appellate courts are less likely to find an abuse of discretion where the proposed amendment was “‘offered after long unexplained delay ․ or where there is a lack of diligence․’” Hulsey v.     Koehler (1990) 218 Cal.App.3d 1150, 1159. “Moreover, “‘“even if a good amendment is proposed in proper form, unwarranted delay in    presenting it may—of itself—be a valid reason for denial.”’ Huff v. Wilkins (2006) 138 Cal.App.4th   732, 746, quoting Record v. Reason (1999) 73 Cal.App.4th 472, 486. LIST HERE THE SPECIFIC FACTS AND EVIDENCE SUPPORTING YOUR 23 24 CONTENTION THAT THE MOVING PARTY HAS SHOWN A LACK OF DILIGENCE, OR 25 A LONG UNEXPLAINED DELAY IN REQUESTING LEAVE TO AMEND AND CITE TO 26 THE ATTACHED DECLARATION AND EXHIBITS IF ANY. 27 28 - 4 OPPOSITION TO MOTION FOR LEAVE TO AMEND ________________
  5. 5. Modify these paragraphs to suit your particular situation. Do 1 2 3 4 NOT just use the wording here unless it definitely applies to your situation. 5 6 B. THE POLICY OF GREAT LIBERALITY IN PERMITTING AMENDMENTS 7 SHOULD BE APPLIED ONLY WHERE NO PREJUDICE IS SHOWN TO THE ADVERSE 8 PARTY 9 10 11 12 And the policy of great liberality in permitting amendments should be applied only where no prejudice is shown to the adverse party. Although courts are bound to apply a policy of great liberality in permitting amendments to 13 the complaint at any stage of the proceedings, up to and including trial, this policy should be applied 14 only where no prejudice is shown to the adverse party. Magpali v. Farmers Group, Inc. (1996) 48 15 Cal.App.4th 471, 487. 16 ________ will suffer prejudice if leave to amend is granted in that LIST HERE THE 17 18 SPECIFIC WAYS IN WHICH YOU WILL SUFFER PREJUDICE SUCH AS DELAY OF 19 TRIAL, INCREASED COSTS FOR ADDITIONAL DISCOVERY, ETC. AND CITE TO THE 20 ATTACHED DECLARATION AND EXHIBITS IF ANY. 21 22 __________ has provided no facts or evidence that would allow this court to grant leave to amend. No explanation is provided for the long delay in requesting leave to amend. The motion and 23 24 25 supporting affidavits instead consist mostly of vague and conclusory allegations. A trial court has wide discretion in deciding whether to allow amendment of any pleading, 26 and its ruling in such matters will be upheld unless a clear abuse of discretion is shown. Melican v. 27 Regents of University of California (2007) 151 Cal.App.4th 168, 175–176. 28 - 5 OPPOSITION TO MOTION FOR LEAVE TO AMEND ________________
  6. 6. ________ contends that this court should exercise its discretion and deny the motion for leave 1 2 to amend. 3 Modify these paragraphs to suit your particular situation. Do 4 5 6 7 NOT just use the wording here unless it definitely applies to your situation. 8 III. 9 CONCLUSION 10 Based on the foregoing, _________ requests that the court deny the motion for leave to 11 12 amend. 13 14 15 Dated________________ _______________________________________________ ANY ATTORNEY OR PARTY 16 17 18 19 20 21 22 23 24 25 26 27 28 - 6 OPPOSITION TO MOTION FOR LEAVE TO AMEND ________________
  7. 7. 1 DECLARATION OF _______ IN SUPPORT OF OPPOSITION TO MOTION FOR LEAVE 2 TO AMEND 3 I, ________________ declare as follows: 4 1. 5 6 7 of the facts stated herein, and if called as a witness could and would testify competently to the truth of the facts stated herein. 8 9 2. I make this declaration in support of the opposition to a motion for leave to amend filed by ___________. 10 3. 11 12 I am a party to this action. I am over the age of 18 years and have personal knowledge LIST HERE THE SPECIFIC DETAILS SUPPORTING YOUR OPPOSITION TO THE MOTION FOR LEAVE TO AMEND SUCH AS THE OTHER PARTY SHOWS A 13 LACK OF DILIGENCE, HAS PROVIDED NO EXPLANATION FOR THE LONG DELAY, 14 ETC. ATTACH ANY RELEVANT DOCUMENTS AS EHXIBIT “1”, ETC. IF YOU 15 ATTACH EXHBITS USE THIS WORDING: A true and correct copy of said _____________ is 16 attached hereto as Exhibit “_ and incorporated herein by reference. 17 4. 18 IF YOU CONTEND THAT YOU WILL SUFFER PREJDUICE IF LEAVE TO 19 AMEND IS GRANTED LIST HERE THE SPECIFIC DETAILS SUPPORING YOUR 20 CONTENTIONS SUCH AS DELAY OF TRIAL, INCREASED COSTS DUE TO 21 DISCOVERY, ETC. ATTACH ANY RELEVANT DOCUMENTS AS EHXIBIT “1”, ETC. IF 22 YOU ATTACH EXHBITS USE THIS WORDING: A true and correct copy of said 23 24 _____________ is attached hereto as Exhibit “_ and incorporated herein by reference. 25 /// 26 /// 27 /// 28 - 7 OPPOSITION TO MOTION FOR LEAVE TO AMEND ________________
  8. 8. 1 5. 2 I declare under penalty of perjury under the laws of the State of California that the foregoing 3 4 5 I respectfully request that the court deny the motion for leave to amend. is true and correct and that this declaration is executed on ______________ at _______, California. _____________________________________________ NAME OF PERSON SIGNING DECLARATION 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 8 OPPOSITION TO MOTION FOR LEAVE TO AMEND ________________
  9. 9. 1PROOF OF SERVICE 1 2 3 4 5 6 I am over the age of 18 and not a party to this action. I am a resident of or employed in the county where the mailing occurred; my business/residence address is: ADDRESS OF PERSON SERVING DOCUMENTS. On ____________________ I served the foregoing document(s) described as: OPPOSITION TO MOTION FOR LEAVE TO AMEND _________________; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF __________ ;EXHIBITS to the following parties: 7 8 9 10 11 12 13 NAME AND ADDRESS OF EACH ATTORNEY OR PLAINTIFF WITHOUT AN ATTORNEY [X] (By U.S. Mail) I deposited such envelope in the mail at ______________, California with postage thereon fully prepaid. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 14 15 16 17 DATED: ______________ _______________________________________ NAME OF PERSON SERVING PAPERS 18 19 20 21 22 23 24 25 26 27 28 - 9 OPPOSITION TO MOTION FOR LEAVE TO AMEND ________________
  10. 10. 1PROOF OF SERVICE 1 2 3 4 5 6 I am over the age of 18 and not a party to this action. I am a resident of or employed in the county where the mailing occurred; my business/residence address is: ADDRESS OF PERSON SERVING DOCUMENTS. On ____________________ I served the foregoing document(s) described as: OPPOSITION TO MOTION FOR LEAVE TO AMEND _________________; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF __________ ;EXHIBITS to the following parties: 7 8 9 10 11 12 13 NAME AND ADDRESS OF EACH ATTORNEY OR PLAINTIFF WITHOUT AN ATTORNEY [X] (By U.S. Mail) I deposited such envelope in the mail at ______________, California with postage thereon fully prepaid. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 14 15 16 17 DATED: ______________ _______________________________________ NAME OF PERSON SERVING PAPERS 18 19 20 21 22 23 24 25 26 27 28 - 9 OPPOSITION TO MOTION FOR LEAVE TO AMEND ________________

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