California Code of Civil Procedure. California

Чтение книги онлайн.

СКАЧАТЬ Sec. 2) and added by Stats. 2015, Ch. 418, Sec. 3. Effective January 1, 2016. Section operative January 1, 2021, by its own provisions.)

      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, if 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) Subject to the limitations imposed by subdivision (e) of Section 430.41, if 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. If 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) If 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. If 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) If 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.

      (f) This section shall remain in effect only until January 1, 2021, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2021, deletes or extends that date.

      (Amended by Stats. 2015, Ch. 418, Sec. 4. Effective January 1, 2016. Repealed as of January 1, 2021, by its own provisions. See later operative version added by Stats. 2015, Ch. 418.)

      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, if 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) Subject to the limitations imposed by subdivision (e) of Section 430.41, if 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. If 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) If 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. If 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) If 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.

      (f) This section shall become operative on January 1, 2021.

      (Repealed (in Sec. 4) and added by Stats. 2015, Ch. 418, Sec. 5. Effective January 1, 2016. Section operative January 1, 2021, by its own provisions.)

      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.

      (Amended by Stats. 2001, Ch. 44, Sec. 3. Effective January 1, 2002.)

      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.

      (Amended by Stats. 1993, Ch. 456, Sec. 7. Effective January 1, 1994.)

      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.

      (Added by Stats. 1961, Ch. 727.)

      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 СКАЧАТЬ