2009 California Code of Civil Procedure - Section 469-475 :: Chapter 8. Variance--mistakes In Pleadings And Amendments

CODE OF CIVIL PROCEDURE
SECTION 469-475

[469.]  Section Four Hundred and Sixty-nine. No variance between the
allegation in a pleading and the proof is to be deemed material,
unless it has actually misled the adverse party to his prejudice in
maintaining his action or defense upon the merits. Whenever it
appears that a party has been so misled, the Court may order the
pleading to be amended, upon such terms as may be just.

470.  Where the variance is not material, as provided in Section 469
the court may direct the fact to be found according to the evidence,
or may order an immediate amendment, without costs.

471.  Where, however, the allegation of the claim or defense to
which the proof is directed, is unproved, not in some particular or
particulars only, but in its general scope and meaning, it is not to
be deemed a case of variance, within the meaning of Sections 469 and
470, but a failure of proof.

471.5.  (a) If the complaint is amended, a copy of the amendments
shall be filed, or the court may, in its discretion, require the
complaint as amended to be filed, and a copy of the amendments or
amended complaint must be served upon the defendants affected
thereby. The defendant shall answer the amendments, or the complaint
as amended, within 30 days after service thereof, or such other time
as the court may direct, and judgment by default may be entered upon
failure to answer, as in other cases. For the purposes of this
subdivision, "complaint" includes a cross-complaint, and "defendant"
includes a person against whom a cross-complaint is filed.
   (b) If the answer is amended, the adverse party has 10 days after
service thereof, or such other time as the court may direct, in which
to demur to the amended answer.

472.  Any pleading may be amended once by the party of course, and
without costs, at any time before the answer or demurrer is filed, or
after demurrer and before the trial of the issue of law thereon, by
filing the same as amended and serving a copy on the adverse party,
and the time in which the adverse party must respond thereto shall be
computed from the date of notice of the amendment.

472a.  (a) A demurrer is not waived by an answer filed at the same
time.
   (b) Except as otherwise provided by rule adopted by the Judicial
Council, when a demurrer to a complaint or to a cross-complaint is
overruled and there is no answer filed, the court shall allow an
answer to be filed upon such terms as may be just. If a demurrer to
the answer is overruled, the action shall proceed as if no demurrer
had been interposed, and the facts alleged in the answer shall be
considered as denied to the extent mentioned in Section 431.20.
   (c) When a demurrer is sustained, the court may grant leave to
amend the pleading upon any terms as may be just and shall fix the
time within which the amendment or amended pleading shall be filed.
When a demurrer is stricken pursuant to Section 436 and there is no
answer filed, the court shall allow an answer to be filed on terms
that are just.
   (d) When a motion to strike is granted pursuant to Section 436,
the court may order that an amendment or amended pleading be filed
upon terms it deems proper. When a motion to strike a complaint or
cross-complaint, or portion thereof, is denied, the court shall allow
the party filing the motion to strike to file an answer.
   (e) When a motion to dismiss an action pursuant to Article 2
(commencing with Section 583.210) of Chapter 1.5 of Title 8 is
denied, the court shall allow a pleading to be filed.

472b.  When a demurrer to any pleading is sustained or overruled,
and time to amend or answer is given, the time so 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 shall be filed within 30 days after the clerk of
the reviewing court mails notice of the issuance of the remittitur.

472c.  (a) When any court makes an order sustaining a demurrer
without leave to amend the question as to whether or not such court
abused its discretion in making such an order is open on appeal even
though no request to amend such pleading was made.
   (b) The following orders shall be deemed open on appeal where an
amended pleading is filed after the court's order:
   (1) An order sustaining a demurrer to a cause of action within a
complaint or cross-complaint where the order did not sustain the
demurrer as to the entire complaint or cross-complaint.
   (2) An order sustaining a demurrer to an affirmative defense
within an answer where the order sustaining the demurrer did not
sustain the demurrer as to the entire answer.
   (3) An order granting a motion to strike a portion of a pleading
where the order granting the motion to strike did not strike the
entire pleading.
   (c) As used in this section, "open on appeal" means that a party
aggrieved by an order listed in subdivision (b) may claim the order
as error in an appeal from the final judgment in the action.

472d.  Whenever a demurrer in any action or proceeding is sustained,
the court shall include 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.
   The party against whom a demurrer has been sustained may waive
these requirements.

473.  (a) (1) The court may, in furtherance of justice, and on any
terms as may be proper, 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 likewise, in its discretion, after notice
to the adverse party, allow, upon any terms as may be just, 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.
   (2) 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.
   (b) The court may, upon any terms as may be just, relieve a party
or his or her legal representative from a judgment, dismissal, order,
or other proceeding taken against him or her through his or her
mistake, inadvertence, surprise, or excusable neglect. Application
for this relief shall be accompanied by a copy of the answer or other
pleading proposed to be filed therein, otherwise the application
shall not be granted, and shall be made within a reasonable time, in
no case exceeding six months, after the judgment, dismissal, order,
or proceeding was taken. However, in the case of a judgment,
dismissal, order, or other proceeding determining the ownership or
right to possession of real or personal property, without extending
the six-month period, when a notice in writing is personally served
within the State of California both upon the party against whom the
judgment, dismissal, order, or other proceeding has been taken, and
upon his or her attorney of record, if any, notifying that party and
his or her attorney of record, if any, that the order, judgment,
dismissal, or other proceeding was taken against him or her and that
any rights the party has to apply for relief under the provisions of
Section 473 of the Code of Civil Procedure shall expire 90 days after
service of the notice, then the application shall be made within 90
days after service of the notice upon the defaulting party or his or
her attorney of record, if any, whichever service shall be later. No
affidavit or declaration of merits shall be required of the moving
party. Notwithstanding any other requirements of this section, the
court shall, whenever an application for relief is made no more than
six months after entry of judgment, is in proper form, and is
accompanied by an attorney's sworn affidavit attesting to his or her
mistake, inadvertence, surprise, or neglect, vacate any (1) resulting
default entered by the clerk against his or her client, and which
will result in entry of a default judgment, or (2) resulting default
judgment or dismissal entered against his or her client, unless the
court finds that the default or dismissal was not in fact caused by
the attorney's mistake, inadvertence, surprise, or neglect. The court
shall, whenever relief is granted based on an attorney's affidavit
of fault, direct the attorney to pay reasonable compensatory legal
fees and costs to opposing counsel or parties. However, this section
shall not lengthen the time within which an action shall be brought
to trial pursuant to Section 583.310.
   (c) (1) 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 the following:
   (A) Impose a penalty of no greater than one thousand dollars
($1,000) upon an offending attorney or party.
   (B) Direct that an offending attorney pay an amount no greater
than one thousand dollars ($1,000) to the State Bar Client Security
Fund.
   (C) Grant other relief as is appropriate.
   (2) 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 shall not be 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.
   (d) 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.

473.1.  The court may, upon such 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 pursuant to Section 581 or
Chapter 1.5 (commencing with Section 583.110) of Title 8, where a
court of this state has assumed jurisdiction, pursuant to Section
6180 or 6190 of the Business and Professions Code, 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 shall be made within a reasonable period
of time, in no case exceeding six months, after the court takes
jurisdiction over the practice. However, in the case of a judgment,
order, or other proceeding determining the ownership or right to
possession of real or personal property, without extending the
six-month period, when a notice in writing is personally served
within the state both upon the party against whom the judgment,
order, or other proceeding has been taken, and upon the attorney
appointed pursuant to Section 6180.5 of the Business and Professions
Code to act under the court's direction, notifying the party and the
appointed attorney that the order, judgment, or other proceeding was
taken against him or her and that any rights the party has to apply
for relief under the provisions of the section shall expire 90 days
after service of notice, then application for relief must be made
within 90 days after service of the notice upon the defaulting party
or the attorney appointed to act under the court's direction pursuant
to Section 6180.5 of the Business and Professions Code, whichever
service is later. No affidavit or declaration of merits shall be
required of the moving party.

473.5.  (a) 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 shall be served and filed within a reasonable time,
but in no event exceeding the earlier of: (i) two years after entry
of a default judgment against him or her; or (ii) 180 days after
service on him or her of a written notice that the default or default
judgment has been entered.
   (b) A notice of motion to set aside a default or default judgment
and for leave to defend the action shall designate as the time for
making the motion a date prescribed by subdivision (b) of Section
1005, and it shall be accompanied by an affidavit showing under oath
that the party's lack of actual notice in time to defend the action
was not caused by his or her avoidance of service or inexcusable
neglect. The party shall serve and file with the notice a copy of the
answer, motion, or other pleading proposed to be filed in the
action.
   (c) Upon a finding by the court that the motion was made within
the period permitted by subdivision (a) and that his or her lack of
actual notice in time to defend the action was not caused by his or
her avoidance of service or inexcusable neglect, it may set aside the
default or default judgment on whatever terms as may be just and
allow the party to defend the action.

474.  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 such 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;
provided, that no default or default judgment shall be entered
against a defendant so designated, unless it appears that the copy of
the summons or other process, or, if there be no summons or process,
the copy of the first pleading or notice served upon such defendant
bore on the face thereof a notice stating in substance: "To the
person served: You are hereby served in the within action (or
proceedings) as (or on behalf of) the person sued under the
fictitious name of (designating it)." The certificate or affidavit of
service must state the fictitious name under which such 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
shall be 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 and shall not be applicable to entry
of a default or default judgment based upon service, in the manner
otherwise provided by law, of an amended pleading, process or notice
designating defendant by his true name.

475.  The court must, in every stage of an action, disregard any
error, improper ruling, instruction, or defect, in the pleadings or
proceedings which, in the opinion of said court, does not affect the
substantial rights of the parties. No judgment, decision, or decree
shall be reversed or affected by reason of any error, ruling,
instruction, or defect, unless it shall appear from the record that
such error, ruling, instruction, or defect was prejudicial, and also
that by reason of such error, ruling, instruction, or defect, the
said party complaining or appealing sustained and suffered
substantial injury, and that a different result would have been
probable if such error, ruling, instruction, or defect had not
occurred or existed. There shall be no presumption that error is
prejudicial, or that injury was done if error is shown.


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