Judge Holly J. Fujie, Case Number: 22STCV29385, Date: 2024-11-18 Tentative Ruling

RESPONDING PARTY: Defendant LOS ANGELES UNIFIED SCHOOL DISTRICT (“Defendant” or “LAUSD”)

Plaintiff filed this a revival action under California Code of Civil Procedure (“CCP”) § 340.1 on September 9, 2022, seeking damages for childhood sexual abuse allegedly committed by a named employee of a school district defendant at an elementary school (the “School”) t between approximately 1972 and 1973. The original complaint (the “Complaint”) was filed more than two years before the filing of this Motion for Leave to File Second Amended Complaint (the “Motion”).

Although Plaintiff named only Does as defendants pending the certification process, she specifically named an individual as the perpetrator of the alleged abuse, namely Mark Henry Brendt. (Complaint, ¶ 7.) In fact, Mark Henry Brendt was the only identified person or entity who appears in the Complaint. This Court approved the service of the Complaint based on sealed documentation presented by Plaintiff to the Court.

Plaintiff filed the operative First Amended Complaint (“FAC”) on March 20, 2023, six months after the filing of the original Complaint, alleging (1) Negligence (against School); (2) Negligence (against Does 2 through 25); (3) Negligent Hiring, Retention, and Supervision (against School); (4) Negligent Hiring, Retention, and Supervision (against Does 2 through 25). In the FAC, Plaintiff names Defendant LAUSD as the sole defendant (together with Does) and states that the School where the assaults occurred was Miramonte Elementary School.

Plaintiff continued to assert in the FAC that the LAUSD employee who assaulted her was Mark Henry Brendt. (FAC ¶ 7.) In this pleading, as in the original Complaint, Plaintiff expresses no doubt as to the identity of her assailant, neither does she identify him by his role at the school – for example, that he was her teacher.

Defendant filed its answer to the FAC on April 20, 2023. On May 10, 2024, Defendant filed a Motion for Summary Judgment (the “MSJ”), which is currently scheduled for hearing on December 4, 2024.

On October 29, 2024, Plaintiff filed the instant Motion. Defendant filed an opposition to the Motion on November 6, 2024, and Plaintiff filed a reply to the opposition on November 8, 2024.

The opposition to the MSJ is due to be filed two days after the hearing on this Motion.

CCP section 473(a)(1) states: “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.”

Judicial policy favors resolution of all disputed matters between the parties and, therefore, the courts have held that “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v. ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial where the adverse party will not be prejudiced.”].)

Pursuant to California Rules of Court (“CRC”) rule 3.1324(a), a motion to amend must: (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered; and (2) state what allegations are proposed to be deleted from or added to the previous pleading and where, by page, paragraph, and line number, such allegations are located. CRC 3.1324(b) requires a separate declaration that accompanies the motion, stating: (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 reason why the request for amendment was not made earlier.

Plaintiff has complied with these procedural requirements by attaching a copy of the proposed second amended complaint (the “SAC”) and setting forth the change proposed to be made to the previous pleading. Plaintiff asserts that she seeks to file the SAC to correct the name of the “perpetrator” identified in her complaint, which she asserts that she has recently learned through discovery and investigation. Plaintiff provided the Declaration of Jamie M. Majerus (“Majerus”) explaining why the amendment is necessary and proper, and why an amendment was not made earlier. (Declaration of Jamie M. Majerus [“Majerus Decl.”], Exhs 1 and 2.) Majerus, Plaintiff’s attorney, declares that upon reviewing Defendant’s discovery responses, Plaintiff realized the wrong perpetrator had inadvertently been named in the FAC. Specifically, Majerus attests that Plaintiff mistakenly identified “Mark Henry Brendt”[1] as the perpetrator. (Majerus Decl., ¶7.) Tellingly, Plaintiff herself does not provide a declaration to explain this significant “mistake.”

In fact, according to the Majerus Declaration, LAUSD had responded to Plaintiff’s discovery requests almost a year ago in December of 2023 by stating that Mark Henry Berndt had no relationship with the school attended by Plaintiff at the time she attended it. (Majerus Decl., ¶ 3.)

The MSJ filed on May 10, 2024 is based on one ground – that Mark Berndt – whom Plaintiff specifically identified (but under the name Mark Henry Brendt) in her Complaint as the person who molested her -- was not employed at the School until six years after Plaintiff was allegedly abused. (Id., ¶8.)

The instant Motion for Leave to Amend was not filed until over five months had passed since the filing of the MSJ.

Defendant’s MSJ is set to be heard on December 4, 2024 – only 16 days after the hearing on this Motion. Trial is set for January 27, 2025 – only ten weeks after the hearing.

In justifying the delay in filing this Motion, Plaintiff’s counsel asserts that Plaintiff identified Gerald Shaia from a yearbook on August 1, 2024, after she made efforts to obtain the name of Plaintiff’s fourth grade teacher, whom she now identifies as the man who sexually abused her. (Id., ¶ 9).

In opposition, Defendant argues that at the time Plaintiff filed her original complaint based on alleged abuse by Mark Henry Berndt, her claim relating to him was timely because the Legislature, through Assembly Bill 218, had revived all otherwise time-barred childhood sexual assault claims that had not already been litigated to finality for three years – from January 1, 2020 to December 31, 2022. Defendant contends, however, that Plaintiff’s proposed SAC, based on alleged abuse by a different perpetrator, is untimely, as the relation-back doctrine does not apply. Defendant further asserts that the Motion should also be denied because Plaintiff is asking for leave to pursue an entirely new case. Defendant argues that Plaintiff’s new theory—that Defendant was negligent in its supervision of another individual —was not “imperfectly pleaded” such that it can be fixed with an amendment, but that the theory regarding the alleged actions of Gerald Shaia “was not pleaded at all.”

The Court agrees with Defendant’s contention. Under the “doctrine of relation back,” a court deems an amended complaint to have been filed at the time of an earlier complaint. The doctrine requires that the amended complaint rest on the same general set of facts, involve the same injury, and involve the same “instrumentality” or cause of injury. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409.) An amended complaint relates back to the original complaint even if the plaintiff alleges a new legal theory or cause of action, so long as the amended complaint is based on the same general set of facts. (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 277.) To determine whether an amended complaint rests on the same general set of facts for purposes of the statute of limitations, the most important consideration is whether the original pleading gave the defendant adequate notice of the claim. (Id.) “‘The policy behind statutes of limitations is to put defendants on notice of the need to defend against a claim in time to prepare a fair defense on the merits. This policy is satisfied when recovery under an amended complaint is sought on the same basic set of facts as the original pleading.’” (Id.)

Here, Plaintiff’s proposed SAC completely changes the nature of the claim by withdrawing the name of the perpetrator upon whose actions she asserted her original claim and inserting a completely new perpetrator. The perpetrator in the proposed SAC is a completely different “instrumentality” from that alleged in both the original Complaint and the FAC. This is not a mere change in legal theory or cause of action but a completely new set of facts. A claim that Mark Henry Berndt molested Plaintiff is not the same as a claim that Gerald Shaia molested her. Thus, the relation-back doctrine cannot apply.

Although Plaintiff did not name Mark Henry Berndt as a defendant in her pleadings, her entire case rests upon his identity and alleged actions as the perpetrator of the alleged molestation. (Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4^th 1468, 1470.) The allegation that LAUSD was negligent in supervising Mark Henry Berndt is not the same as a claim that it was negligent in supervising an entirely different person, Gerald Chaia.

With trial only two months away, Defendant’s prejudice from the filing of the proposed SAC is apparent. For the past two years, LAUSD has been litigating a case about alleged molestation by one employee and Plaintiff seeks to change it to a case against another. It is in a way no different from claiming that an alleged molestation in one school is the same as an alleged molestation in another school. In no way would an investigation or discovery regarding a claim against Mark Henry Berndt be equivalent to an investigation against Gerald Shaia.

Because the relation-back doctrine does not apply here, the new claim involving Gerald Shaia as perpetrator is barred by the statute of limitations, even though her previous claim against Mark Henry Berndt was revived by Assembly Bill 218, as the proposed SAC would not have been be filed on or before December 31, 2022. (West Contra Costa Unified School Dist. V. Superior Court (2024) 103 Cal.App.5^th 1243, 1254.) Where amendment would be futile, leave to amend should not be granted. (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4^th 365, 374.)

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] The Majerus Declaration also identifies the originally-named perpetrator as “Mark Berndt” and not as “Mark Henry Brendt” as alleged in the Complaint and the FAC.