Tale No. 9 When a statute has unintended consequences …

 Or when your best friend is an overworked court clerk.

C.C.P. section 472(a) allows a pleading to be amended…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. The court in Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156 observed that all too often litigants who appear in propria persona deliberately attempt to capitalize upon their own ignorance or appearance of ignorance.

 A few years ago, a plaintiff appearing in pro per filed a complaint to which the defendant demurred. A few days before the hearing on the demurrer, plaintiff filed and served an amended complaint. Defendant filed a demurrer to the amended complaint, but a few days or hours before the hearing, (and without seeking leave of court) plaintiff filed and served a second (then third, fourth and fifth) amended complaint and the demurrer was denied – on the grounds an amended complaint had been filed. Approximately ½ hour before the hearing on the demurrer to the fifth amended complaint, plaintiff served the 6th amended complaint on counsel and left the original at the court clerk’s counter for filing, but neglected to deliver a courtesy copy to the judge’s chambers. The sixth amended complaint was not filed and the demurrer to the fifth amended complaint was heard and sustained, without leave to amend. (plaintiff failed to appear at the hearing – trusting the demurrer would be denied).

The sixth amended complaint was subsequently discovered in a box beneath the court clerk’s counter when plaintiff sought to create the record for appeal.