Can a motion to amend be considered as if it was abandoned because counsel failed to make a written amendment to the complaint?

After the trial court granted the motion to amend, counsel failed to make a written amendment to the complaint. Steinpress contends that this failure constituted an abandonment of the motion, in spite of the fact that concealment was apparently argued to the jury, the court instructed on that issue and, eventually, concealment was the basis of part of the jury's verdict. We find this contention to be without merit and contrary to case law. (Benton v. Hofmann Plastering Co. (1962) 207 Cal.App.2d 61, 71, 24 Cal.Rptr. 268.)

If leave has been given to amend and plaintiff has failed to avail himself of the opportunity, the court, on appeal, should consider the case just as if the amendment had been made. (Myers v. Stephens (1965) 233 Cal.App.2d 104, 124, 43 Cal.Rptr. 420.)

[128 Cal.App.3d 176]