*1 Dist., June A039154. First Div. Four. 1988.] [No. ESPINOSA, Petitioner,
SALVADOR COUNTY, THE OF CONTRA COSTA SUPERIOR COURT Respondent; al.,
CITY OF PITTSBURG et Real Parties Interest.
Counsel
Gene Cain and Cain & Cain for Petitioner.
No for appearance Respondent.
Sellar, Hazard, Snyder, &Kelly James V. Fitzgerald, Fitzgerald, Stephanie Gibbons, Lees, Gray, Schaefer & Edrington and Dolores M. Donohoe for Real Parties in Interest.
Opinion CHANNELL, J.Petitioner Salvador amendment to his 1984 complaint added an allegation City that the Pittsburg, the real party interest this violated his federal civil rights. Respondent court sustained a demurrer to this amendment without leave on to amend ground that the run. Espinosa had applied this court for a writ of mandate. We find that the superior court properly demurrer, sustained but should have given leave Espinosa to amend.
I. Facts 7, 1983,1 On May Salvador petitioner arrested police City from the In Pittsburg (City). his for damages, he alleged City that four police officers assaulted him without provocation 7,May resulting in his false arrest and imprisonment. He also alleged that his initial booking evidence that photograph, would tend to establish claim, his assault was destroyed by one officers or their agents. Espinosa brought against suit the City, its police and four of department, its
1AH refer dates unless otherwise indicated. arrest, and intentional destruc- false battery, imprisonment, false officers for violation of of action alleged He also two causes tion of evidence. officers, City or the the four but not rights against federal civil department. 17, 1987, complaint, an amendment this February filed On his civil rights.2 to violate a seventh cause of action alleging conspiracy as in his original complaint all the facts realleged 42 U.S.C. He (See § father agent telephoned one—that on and added new Davis, Davis’s father witness Espinosa beating. of Mark an safety. area for his own Pittsburg to remove his son from the was advised *4 trial, 1984 criminal which testify Espinosa’s Davis was not available to a deadly Espinosa in a for assault with weapon. resulted conviction amount- continuing conspiracy intimidation was of part that the witness active of evidence. ing suppression by to the amendment as barred City
The and other defendants demurred demur- court sustained the Respondent superior the statute of limitations. of court for a writ rer leave to amend. this Espinosa petitioned without mandate, a motion for reconsideration which we denied because he had this After the court denied superior before the court. pending superior motion, an for relief to this court. We issued petition renewed Espinosa writ, How- granted. discharged alternative which we later as improvidently ever, for review petition the granted Espinosa’s California court, we of that and transferred the matter back to us. At the direction issued new alternative writ.
II. Hands Laches Unclean deny on the Preliminarily, City petition grounds the us to the urges It of guilty of unclean hands and laches. contends that was Espinosa preju in the The court delay filing superior dicial his motion to amend complaint. the have to amend his with granted motion appears they City grounds reservation the could demur on the same which that amend. grounds prejudicial the motion to These do not include opposed Proc., 430.10.) which is not for demurrer. Code Civ. delay, ground (See § amend, By necessarily concluded superior the motion the court granting fact, motion—if, delay denying that was not prejudicial ground City superior this issue raised at all. The has not shown that the court delayed abused its discretion this decision. Neither has 2 or alleges It not the amendment a cause action alone clear whether City’s joined against some all as well. Four officers demurrer to the sev or officers join op enth cause which was sustained as to all defendants. These officers also convenience, City” posing Espinosa’s petition for For refer to “the alone writ mandate. we party in as real interest. after the demurrer was sustained. for relief bringing petition present City’s are meritless. contentions
III. of Limitations Statute Next, to this clarify period applying we the correct limitations three-year applies action. contends that the statute limitations February He claims that the to this section action. conspiracy act— years was filed three of the last conspirator’s amendment within correct of his criminal trial on June 1984. He is beginning civil not until begin that the limitations for a does to run period conspiracy the last pursuant conspiracy completed (Wyatt overt act had been P.2d Union 24 Cal.3d Mortgage However, it would to run 45]) disagree not until 1984. we begin about the of that limitations length period.
For more than 20 years, causes of period governing action under of title 42 brought section 1983 of the United States Code was 3-year an statutory liability. limitations for action on a based *5 1352, (Cabrales County 1353; v. 644 Angeles (C.D.Cal. Los 1986) F.Supp. Proc., 338, 335, 17, 1985, see Code Civ. subd. 1.) On the United April §§ States Court all held that section actions are governed 1983 state periods injury (Wilson for actions. v. Garcia personal 261, 254, 266-267, (1985) 471 U.S. 275-276 L.Ed.2d 105 In 1938].) S.Ct. [85 California, a personal injury action must be within year. (Code filed one Proc., 335, 340, Civ. (3).) subd. §§
Treating Espinosa’s amendment as the a filing of new it accrued 1985, 1987, before Wilson was decided in but filed in April February was IV, after that (See decision. part post.) retroactive of Wilson application subject has been the of much in federal (see debate courts Parker v. Superior 1082, Court (1985) 175 Cal.App.3d 1089 we are Cal.Rptr. 292]) and [223 reluctant to add another to the voice din. we Assuming arguendo that case, should not retroactively Wilson in this we do not apply automatically the apply three-year limitations When a previous period. court establishes a claim, new statute of limitations that would bar a a preaccrued plaintiff must be given reasonable on grace period within which to file suit 516, 527, claim. Inc. v. Short 454 (Texaco, (1982) U.S. fn. 21 L.Ed.2d [70 738, 749, 102 S.Ct. v. 781]; Cabrales Los 644 County Angeles, supra, at This “reasonable F.Supp. p. grace is the shorter of two period” years periods—three from the date year of action accrued or one 17, after 1986. (Id., Wilson was decided—April p. 1356.) As the amend- 17, 1987, ment on complaint February to the was filed year more than a decided, after Wilson was it not timely.
414
IV. Doctrine Relation Back to the relates back contends that the amendment Espinosa also bar of the of limitations. of the and thus avoids the date complaint, back, relates Under an amended complaint the doctrine relation bar of the and avoids the original complaint back to date of filing as long recovery sought pleadings statute of limitations so both Co. & Insurance (Austin Bonding same of facts. v. Massachusetts general set 817, 596, v. 56 600 364 P.2d Wennerholm (1961) 681]; Cal.2d Cal.Rptr. [15 522, 713, 141 Med. 20 Cal.2d 718 P.2d Univ. Sch. (1942) [128 Stanford 1214, 1216 A.L.R. v. 171 1358]; (1985) Rowland Court Superior Cal.App.3d Witkin, Pleading, 5 786]; (3d 1985) see Cal. Procedure ed. Cal.Rptr. [217 1162, pp. 579-581.) § recovery facts when general
Two seek based on the same set of pleadings same and the same and the amendment accident allege 932, 18 934 injury. (Smeltzley Mfg. (1977) v. Nicholson Co. Cal.3d [136 624, 121]; P.2d 85 Coronet Cal.Rptr. Manufacturing 559 A.L.R.3d 366]; v. Court see Superior (1979) Cal.App.3d Cal.Rptr. [153 v. Andalon Superior Cal.App.3d case, For in one his after in a 899].) leg got caught man lost it example, machine at His cause of action workplace. his original complaint and Doe defendants. The substi employer complaint, amended Doe, the machine manufacturer related back date of tuting filing for to the because referred accident both to the same (leg caught machine) injury (loss of leg). (Smeltzley same Co., another, 934-935.) In a man was Mfg. supra, Nicholson Cal.3d at pp. by city city shot and killed sued the and the police. His widow *6 wrongful death in her Her amended original adding complaint. complaint, city action to officers against negligently continuing employ force, who were related back prone unnecessary filing to use to the date the original because both referred the same accident complaint pleadings to and the same Los (police shooting) injury (loss spouse). (Grudt v. 575, 465, Angeles (1970) 825].) Cal.3d 581-585 468 P.2d Cal.Rptr. [86 The if allege doctrine of relation back does not both apply pleadings accidents, case, different if both injury. even result in the same In a recent woman in original her and Doe de- alleged complaint against physician fendants sterile a drug that she became as a result of her doctor prescribed. She sought to amend her a cause complaint adding against of action device, control that alleging sterility manufacturer of a birth her resulted from use of The doctrine of relation back because its did not product. apply, she alleged (ingestion drug, two different accidents use of intrauterine device) injury (Barrington in the same v. A. H. Robins resulting (sterility). 149-152 39 Cal.3d 702 P.2d In a 563].) to have caused a alleged suit one against libel plaintiffs brought Later, they newspaper. a Los Angeles libelous statement to be published and add allegations, restate the original amend the complaint, wanted made a similar state incident the defendants days two after the first that another The doctrine of relation ment that was published publication. two different alleged back was held to be because inapplicable, pleadings utterance to second (utterance Angeles newspaper, publi accidents Los may even have re cation), injury (harm the same though reputation) from both. v. 527- (Wiener Superior (1976) Cal.App.3d sulted Cal.Rptr. 61].) 529 [130 cases to the same instru
Some also discuss whether refer pleadings case, mentality. In a girl one such died of electrocution. Her parents their original dryer action a hair manufacturer and Doe brought defendants, alleging daughter that their was electrocuted while using hair dryer. they sought defective In an amended to substitute a complaint, of a for a manufacturer table Doe defendant. This amended lamp that the alleged child was electrocuted while the table using lamp. Although both same injury child), the doctrine of pleadings (loss of back relation did not because the alleged different acci apply, of hair (use dryer, dents use table lamp) and different instrumentalities dryer, hair (defective defective table lamp). (Coronet Manufacturing Co. Court, Superior supra, Cal.App.3d 345-348.) pp. cases,
With the guidance these we find doctrine of back relation cannot be amendment. The applied alleges events said to have 7. occurred on The alleged beaten, arrested, was that accident jailed, was and that excul evidence was The patory destroyed. instrumentality City’s agents— was the four named and the booking officers unnamed alleg officer—who him, him, edly beat Espinosa, jailed destroyed arrested booking assaulted, photograph. was that alleged injury falsely arrested, and falsely imprisoned.
The amendment to Espinosa’s complaint is based on events of *7 10, May and when an agent a allegedly steps took intimidate to the May witness 7 incident..The 7May May events of and 10 do not involve the same injuries. accidents and If the referred only amendment 7, May the events of it would relate back of the original to the date com- However, 7, to the extent that it plaint. relates to events after amendment refers to a different accident a (witness intimidation), different injury (his unjust for assault deadly conviction with a and weapon), perhaps Therefore, a instrumentality different (unnamed City agent). cause of does and action not relate back is barred by of limitations.
416 on the doctrine of that of the seminal case
Our result is consistent with Austin, a into a case in surety place a was substituted “relation back.” In Co., (Austin & Bonding v. Insurance Doe. Massachusetts alleged previously and the amend As the 598-599.) complaint Cal.2d at supra, pp. by the initial defendants ed “the same defalcations” complaint on the bond added grounds “these constitute the action defalcations general on the same the amended both were based by pleadings complaint,” and the same and the amendment (i.e., injury) set of facts the same accident original complaint. (Id., p. related to the date of the at back The the demurrer to the seventh cause correctly court sustained superior However, plead should an given opportunity of action. be As the action reference to the 10 facts. conspiracy without cause of amendment was first to state this challenged attempt by him leave to amend his granting court erred not superior 159, 168 v. Court complaint. (See (1984) Cal.App.3d Grieves Superior 280, 287-288 Postley Harvey v. Cal.Rptr. 556]; (1984) Cal.App.3d [203 Procedure, Witkin, see also 5 Cal. Cal.Rptr. 354]; supra, § [200 37S-379.)3 pp.
The is Let a mandate issue to the writ of petition granted. peremptory County Court of Contra Costa that court to vacate its Superior directing order without leave to amend the demurrer to the seventh cause sustaining of action in the first amendment to and thereafter make a complaint this new and different order the demurrer with leave to amend. sustaining
Anderson, J., P. concurred. J., POCHÉ, In Austin Massachusetts & Insurance Dissenting. Bonding 364 P.2d 681], Cal.2d unanimous Gibson, authored Chief Justice the California opinion took to make clear an is filed pains complaint that where amendment to after the statute has run “the amended will be of limitations deemed as date recovery filed of the of the original provided sought in both same set general (Id. p. facts.” added.) italics That sea decision threw set change overboard cases had variously the standard as whether the amended stated a new cause pleading theory of action or a new or set forth a legal wholly different cause action liability or wholly legal obligation. or different simple-to-use new standard was same-general-set-of-facts designed danger both to avoid the narrow that other tests construction involved promote policy on their merits. Nor the Supreme cases Court bashful about litigating *8 conclusion, City’s light reject request In we the appeal. of this sanctions for a frivolous the “the amend liberality what it it characterized result as of doing: by the rule.” (At p. ment modern permitted that on
In the hand Mr. his original complaint alleged case at 7, 1983, Pittsburg or about the of beat May various officers of police him, him jailed arrested him and then went about evidence of up, destroying their that later— days attack on him. The amended adds three i.e., May also beating 1983—the defendants intimidated witness to the May testify of the unable at trial for so that witness was words, assault on the In other destruction evidence officers. continued. that as the majority holds insofar amendment “relates to events after by 7” it is barred all defendants. The “accident,”
announced reason is that the amendment to a refers different ante, “injury,” and “instrumentality.” (Majority italics in opn., p. original.) I reject majority’s invitation to return to the and thrilling Accident, limiting yesteryear. tests injury whatever instrumentality, mean, those terms may suffer from same that the Court in vice Supreme Austin action, saw in the tests they e.g., were new repudiating, change theory, wholly legal different cause of a wholly or different theory or legal obligation. (Id. 600-601.) Our here pp. job sole to determine whether both arise out of same set of general Undeniably facts. they do.
For this I reason would overrule the so demurrer that Mr. can tell a jury only not about the beating and the destruction of evidence are in his have occurred on but also about the events taken alleged to have 72 hours or place so later when the coverup and destruction of evidence continued in the form of intimidating a witness to the earlier events. To do otherwise perverts plain meaning of Court, sole test given absolutely runs counter to the policy favoring litigation of cases on their system merits returns the justice to the hands of juries, semanticists rather it than held position before Austin.