Pleadings Complaint-Application To Amend

California Civil Procedure 
Pleadings
Complaint-Application To Amend

Form: Complaint-Application for Permission To Amend Complaint
         To Substitute Name of Defendant for Fictitious Designation-[Code Civ. Pro. § 340.1(k)]
 

H. Brand (SBN # 000000)
ROBERTS, KAJER0 KAHN & GENTLEY
1001 Main Street
 San Francisco City, CA 94080
Telephone:   (000) 360-0000
Attorneys for Defendant and Respondent CITY OF Fremont

SUPERIOR COURT OF CALIFORNIA
COUNTY OF ____________________________________

 [or other as appropriate]
 

CHRISTO OSCOSBURN                                                    Case No.   _____________________

                Plaintiff and Appellant,                                            APPLICATION FOR LEAVE
                                                                                              TO FILE AMENDED COMPLAINT
                                                                                             
   v.                                                                                         DATE: ___________________  
                                                                                               TIME: ___________________     
JOHN Q. PUBLIC                                                                 DEPT:
and DOES 1 Through ____________________                    DATE ACTION FILED:
Defendant.                                                                              TRIAL DATE:

_____________________________________/

    Plaintiff applies for permission to amend the complaint in the above-entitled action to substitute for _____________[specify fictitious name designation in complaint, e.g., John Doe] the name of defendant ________[name].  the application is supported by the certificate of corroborative fact executed by _____[name of plaintiff's attorney who executed certificate], which accompanies this application.  ______[If the defendant has appeared in the action, add Proof of service of this application is attached].

    The certificate of corroborative fact that accompanies this application describes fats that corroborate the charging allegation against defendant ______[name] set forth in Paragraph(s) _____[specify complaint allegation(s) supported by certificate].

                                                                            __________________________________[firm name, if any]

                                                                            __________________________________ [signature]

                                                                            ________________________________[typed name]

                                                                            Attorney for Plaintiff

[1]  Use of Form

    The form of application in [1], above, is for use to request permission to amend the complaint in an action alleging childhood sexual abuse, brought by a plaintiff who was 26 years of age or older when the complaint was filed, to amend the complaint to substitute the defendant's name for the complaint's designation of a fictitiously named defendant [see Code Civ. Proc. Sec. 340.1(d).  (j)].  the application must be accompanied by a certificate of corroborative fact executed by the attorney for the Plaintiff [Code Civ.Proc. Sec 340.1(k)(1); for discussion of the requisite contents of the certificate, see [3], below, and Sec. 5.15].

    If the defendant has not yet appeared in the action at the time the application is made, neither the application nor the certificate of corroborative facts may be served on the defendant or defendants, nor on any other party or their counsel of record [Code Civ. Proc. Sec 340.1(k)(2)].  If the application is made after that defendant's appearance in the action, the application must be served on all parties, with proof of service provided to the court, but the certificate of corroborative fact by the attorney may not be served on any party or their counsel of record [Code Civ. Proc. Sec. 340.1(k)(3)].

[2]  Certificate of corroborative Facts 

    The application set out in this form must be accompanied by a certificate of corroborative fact executed by the attorney for plaintiff.  The certificate must declare that the attorney has discovered one or more facts corroborative of one or more of the charging allegations against a defendant or defendants, and must set forth in clear and concise terms the nature and substance of the corroborative fact.  If the corroborative fact is evidenced by the testimony of a witness or the contents of a document, the identity and location of the witness or document must be included in the certificate.  The opinion of any mental health practitioner concerning the plaintiff does not constitute a corroborative fact for purposes of this requirement [Code Civ. Proc. Sec 340.1(k)(1)].

    In drafting the certificate, counsel should detain the source of the corroborative evidence, and discuss how the evidence (and reasonable inferences that may be drawn from the evidence) supports specific allegations of the complaint that charge defendant with an act or acts of childhood sexual abuse against the plaintiff [see Code Civ. Proc. Sec. 340.1(j)-(1) (contents of certificate and showing required for order)].

California Code of Civil Procedure Sections 335-349.4-Oficial Site