§1.09 Amending the Complaint

Unlawful detainer plaintiffs, like plaintiffs in general civil actions, may amend their complaints once without leave of court before the defendant’s answer is filed (or, if the defendant filed a demurrer, once before the hearing on the demurrer). [CCP §472.] Any other amendment requires leave of the court, which should be liberally granted. [See CCP §473; California Cas. Gen. Ins. Co. v Superior Court (Georgei) (1985) 173 CA3d 274, 279–280, disapproved on other ground in Kransco v American Empire Surplus Lines Ins. Co. (2000) 23 C4th 390, 406–407.] If the amended complaint makes substantive changes, it must be served on the defendant in the same manner as the original complaint and summons if the defendant has not yet responded to the original complaint. [Cohen v Superior Court (Southern Pac. Co.) (1966) 244 CA2d 650, 656.] If the complaint is amended, the defendant generally has five days within which to file a responsive pleading. [CCP §1167.3.]

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If the tenant vacates the property before trial, the case becomes an ordinary civil action for purposes of trial setting. [CC §1952.3(a).] In this situation, the landlord may amend the complaint to include damages not available in a summary proceeding. The landlord must allege that possession is no longer an issue and state a claim for the additional damages. [CC §1952.3(a)(1).] The amended complaint then must be served on the defendant in the same manner as the original complaint and summons, and the defendant has 30 days to file a responsive pleading. [CC §1952.3(a)(1), (b).] The tenant is then entitled to any additional defenses and affirmative relief available. [CC §1952.3(a)(2).]

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