Judge Jill Feeney, Case 21STCV10276 2022-10-04 Tentative Ruling

Plaintiff seeks leave to add a third cause of action for assault, a fourth cause of action for battery, and to assert additional allegations based on the discovery of new evidence. Plaintiff also wishes to amend her existing causes of action. Plaintiff alleges that new surveillance video clips revealed facts previously unknown to Plaintiff.

Defendant argues the proposed third cause of action is barred by the statute of limitations and does not relate back to the original complaint. Defendant also argues that Plaintiff was already aware of the facts that would give rise to causes of action for assault and battery. Lastly, Defendant argues that Plaintiff’s proposed claims fail because the elements of assault and battery cannot be met.

Plaintiff argues that her proposed claims for assault and battery do relate back to the original complaint. Additionally, Plaintiff argues that she did not have access to information regarding Does 3 and 4 before reviewing the newly discovered footage because Plaintiff suffered severe brain injuries, preventing her from recalling the events and circumstances leading up to the attack. Lastly, Plaintiff argues Defendant’s challenge to the viability of Plaintiff’s proposed claims is inappropriate for a motion for leave to amend the complaint.

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.

Under California Rule 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.

California Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “[t]he 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.”

“This discretion 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].)

Under California Rules of Court Rule 3.1324(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.¿

Under California Rule of Court Rule 3.1324(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.¿

“An amended complaint relates back to the original complaint, and thus avoids the statute of limitations as a bar, if it (1) rests on the same general set of facts as the original complaint and (2) refers to the same accident and the same injuries as the original complaint.” (San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1549.)

These amendments describe facts similar to those previously alleged. Plaintiff entered a CVS, left to attend to her dog, returned to the store, and was beaten by an unknown minor, Doe 51. Plaintiff’s proposed TAC describes in greater detail how two CVS employees were involved in the altercation. The TAC alleges that one employee, Doe 3, fought verbally with Plaintiff before lunging at her. While a second employee, Doe 4, restrained him, Doe 51 proceeded to beat Plaintiff with Doe 3 encouraging the beating. Doe 4 placed his hands on Plaintiff as she was struck and did not call the police or intervene until after Doe 51 had bashed her head against the floor several times.

Plaintiff alleges she did not include these new claims and details in her previous amended complaints because she did not have access to the security footage that revealed additional facts about the incident. (Diba Decl., ¶6.) Although Defendant argues that Plaintiff should have had access to this information all along because she was there during the altercation, Plaintiff alleges her brain injuries made it difficult for Plaintiff to recall all of the facts and details regarding the incident. (Reply, p.3.) Thus, the delay in bringing these new claims is justified.

Defendant argues that Plaintiff’s claims are time-barred because they do not relate back to the original complaint. To the contrary, Plaintiff’s proposed TAC describes generally the same facts, seeks recovery for the same injuries she sustained from the attack, and refers to the same incident as the original complaint. The proposed TAC provides a more detailed description of the incident but does not change the general facts so significantly as to refer to a separate incident. Defendant contends that there was a different mechanism of injury here, Defendant Does actually assaulting and battering Plaintiff themselves versus such Defendants urging or enabling another defendant to do the same. The Court does not see this as a different instrumentality warranting a conclusion that the amended complaint does not relate back. The policy reasons behind the rule: giving defendants notice of the incident at issue so as to enable them to adequately prepare a defense have been satisfied here as Plaintiff notified Defendant that its employees were involved in the altercation. Moreover, there is evidence here that defendant was mentally incapacitated following the injury and that incapacitation impacted her ability to remember the details of all that transpired on the day of the accident. This would toll the statute of limitations.