Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

This is a personal injury case.  Plaintiff Jamila Williams was driving on Wilshire Boulevard, when her car was rear-ended by Defendant Stan Gershovich’s car.  On November 17, 2023, Plaintiff filed the underlying complaint naming Gershovich as the driver on the date of the accident.   

On March 4, 2024, Plaintiff served its first set of discovery to Defendant.  In response to form interrogatories, Defendant identified “Joshua Gersh” as the driver.   

Defendant contends Plaintiff knew the driver was “Joshua” well before the responses were served.  On December 10, 2021, Joshua sent a text to Plaintiff stating, “It’s Josh from the other day, was just calling to find out when you would like to come get your car fixed so I can give a heads up to the shop so they can make room for you.”  (Ex. A to Hill Decl.)  On December 24, 2021, Defendant’s insurance carrier sent a letter to Plaintiff’s prior counsel which also identified Joshua as the driver involved in the accident.  (Ex. B to Hill. Decl.)  On February 6, 2024, another letter from Defendant’s insurance carrier to Plaintiff’s counsel identified Joshua as the driver.  (Ex. C to Hill Decl.) 

This hearing is on Plaintiff’s motion for leave to amend.  Plaintiff seeks leave to amend her complaint to name Joshua Gershovich also known as “Joshua Gersh” as a defendant.    

LEGAL STANDARD 

Code Civ. Proc. § 473(a)(1), provides, in relevant part: “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.”¿ 

Under California Rules of Court Rule, rule 3.1324, subdivision (a),¿a motion to amend a pleading shall:¿ 

(1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;¿ 

(2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and¿ 

(3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.¿¿ 

¿ 

In addition, under California Rules of Court, Rule 3.1324, subdivision (b),¿a¿separate declaration¿must accompany the motion and must specify:¿¿ 

(1) the effect of the amendment;¿ 

(2) why the amendment is necessary and proper;¿ 

(3) when the facts giving rise to the amended allegations were discovered; and¿ 

(4) the reasons why the request for amendment was not made earlier.¿ 

¿¿ 

The Court’s discretion to grant leave “should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”¿ (Kittredge Sports Co. v. Superior Court¿(1989) 213 Cal.App.3d 1045, 1047.)¿ Ordinarily, the Court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.¿¿The Court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.¿ (See¿California Casualty General Ins. Co. v. Superior Court¿(1985) 173 Cal.App.3d 274, 281 (overruled on other grounds by¿Kransco v. American Empire Surplus Lines Ins. Co.¿(2000) 23 Cal.4th 390).)¿¿ 

DISCUSSION 

Defendant argues that Plaintiff’s motion should be denied because the proposed claims against Joshua are barred by the applicable statute of limitations.  The Court agrees.    

A trial court “undoubtedly has discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action.” (Rutter Group, Cal. Prac. Guide: Civ. Proc. Before Trial § 6:645 (citing California Casualty Gen. Ins. Co. v. Super. Ct. (1985) 173 Cal.App.3d 274, 280-281 (disapproved of on other grounds by Kransco v. Am. Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 406); see also Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230 (“Of course, if the proposed amendment fails to state a cause of action, it is proper to deny leave to amend.”).  

The Court may deny leave to amend where the amended complaint is barred by the statute of limitations.  The general rule of liberal discretion for leave is not applicable where the proposed amended pleading is time-barred. (Foxborough, 26 Cal.App.4th at 230.)  

Pursuant to Code of Civil Procedure § 335.1, a claim for personal injuries must be asserted within two (2) years of the date of injury.  The general rule for defining the accrual of a cause of action is the time when the wrongful act was done, or the wrongful result occurred, and the consequent liability arose. (Nogart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.)  

Here, Plaintiff’s claims arise from a December 10, 2021 car accident.  Plaintiff’s negligence claims therefore expired on December 10, 2023.  Plaintiff failed to name Joshua as a Defendant by that date. 

The relation back doctrine does not apply to save Plaintiff’s claims against Joshua.  The general rule in California is that the addition of a new defendant does not relate back to the date of filing of the original complaint, and the statute of limitations is applied as of the date of the amendment.  (Victor Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)  An amended complaint that adds a new defendant does not relate back to the date of filing the original complaint, and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.  (Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 490- 492.) 

A recognized exception to the general rule is the substitution under § 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. (Liberty Transport, Inc. v. Harry W. Gorst Co., supra, 229 Cal. App. 3d 417, 428;¿Kerr-McGee Chemical Corp. v. Superior Court¿(1984) 160 Cal. App. 3d 594, 597.)¿ If the requirements of § 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.  (Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal. 2d 596, 599.)  

A “requirement for application of the section 474 relation-back doctrine is that [the plaintiff] must have been genuinely ignorant of [the defendant’s] identity at the time she filed her original complaint.  The omission of the defendant’s identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474.” (Victor Woo, 75 Cal.App.4th at 177 (Internal citation omitted; brackets added.).)  “If the defendant cannot be identified from readily identifiable information, then section 474 is available; if the defendant can be identified from the readily available information, then section 474 is unavailable. This rule retains meaning to the actual ignorance requirement of section 474.”  (Id. at 180; see also Miller v. Thomas (1981) 121 Cal.3d 440, 445-446 (holding the plaintiff's declaration of ignorance was of no consequence because her attorney, who prepared and signed the complaint, was fully informed).)  This safeguard prevents abuse of this “Doe” exception. (Ingram, 98 Cal.App.3d at 491 (stating that the omission of the defendant’s identity must not be a subterfuge for avoiding the requirements of Section 474).)  

Victor Woo v. Superior Court is instructive.  There, the plaintiff filed an action for medical malpractice against several named defendants and fictitious defendant Does.  After the one-year statute of limitations expired, she amended her complaint, adding another defendant doctor without formally substituting that defendant for a fictitious Doe defendant.  Defendant doctor filed a motion for summary judgment based upon the statute of limitations.  The motion was denied.  Defendant then filed a petition for writ of mandate.  The court of appeals held that the motion for summary judgment should have been granted because the plaintiff did not avail herself of readily available information (medical records) that would have refreshed her recollection of defendant's identity and therefore she was not entitled to use¿Cal. Civ. Proc. Code § 474¿to amend her complaint after the statute of limitations had run.  Under these circumstances, there was no good faith, bona fide ignorance as required by¿Cal. Civ. Proc. Code § 474.  (75 Cal.App.4th at 180.) 

So it is here.  Plaintiff cannot seek application of the relation-back doctrine because Joshua’s identity was disclosed to Plaintiff in writing at least twice before the statute of limitations expired.  (Exs. A-C to Hill Decl.)  Since the text message from “Josh” to Plaintiff and Defendant’s insurance carrier’s letter to Plaintiff’s prior counsel made Joshua’s identity as the driver readily available to Plaintiff, the relation-back doctrine does not apply.  

Plaintiff argues that the text message from “Josh” was “ambiguous”; the text did not clearly state that Josh was the driver, and she was still confused and disoriented from the accident so she could not properly understand the implication of the text.  Even if the Court were to credit this explanation, the insurance carrier’s letter still clearly disclosed Joshua as the driver.  Plaintiff’s tortured interpretation of the letter as merely disclosing Joshua was the driver on the policy and not the driver of the car at the time of the accident is not reasonable.  The letter clearly distinguished between the policyholder (Stan Gershovich) and the driver (Joshua Gershovich). 

CONCLUSION 

Based on the foregoing, the Court DENIES Plaintiff’s motion for leave to amend complaint.   

 

IT IS SO ORDERED. 

 

DATED: June 10, 2024         ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court