*1 Dist., Apr. No. 50830. First Div. Four. [Civ. 1981.] HIRSA, Petitioner, MATT A. COUNTY,

THE SUPERIOR OF SAN MATEO COURT Respondent; al.,

FREDERICK HENRY et Real VICKERS Parties Interest. *2 Counsel for Petitioner.

Kay Holley

No appearance Respondent. Interest.

Low, for Real Ball & and James D. Miller Parties Lynch *3 Opinion

POCHÉ, J. to the respon- a writ of mandate compel Plaintiff seeks to his file an amendment permit dent court to him to superior in complaint personal an action for injuries. on

The action out of an automobile accident that occurred arises 2, 1977, ended which vehicle was rear plaintiff’s allegedly in November van Almost one Henry driven defendant Frederick Vickers. by by later, 1, 1978, acting persona, on November year plaintiff, propria filed a that the caused complaint by alleging was. from sought of Frederick Vickers. The

driving damages a corpora- Vickers as well as from Vickers Concrete personally Sawing, tion,—in Frederick its as owner of the van and capacity employer Vickers. 1980, 6,

Some six the com- months later on summons and May and at were on both defendants who filed their answer plaint served 13, 1980, ob- issue memorandum seven On June days plaintiff later. who, later, 12, 1980, private tained counsel one month on July Frederick propounded be answered defendant interrogatories as his record a driver. were received concerning Responses 25, 1980, two to the set for defen- plaintiff prior date August days Vickers’ dant Neither the nor the deposition. interrogatories questions at the to the record Each deposition relating were answered. driving Vickers’ objected to counsel. a mo- subsequent plaintiff

Four to the filed working days deposition tion to amend his an additional cause of action include defendant Vickers against Sawing Concrete of the van to defendant Frederick The motion was opposed Vickers. court. This followed. ultimately by respondent superior petition denied Trial are vested with the discretion to amendments courts allow (Code Proc., Civ. That pleadings justice.” “in furtherance amendments, permit stage trial courts are to liberally

489 (See, since 1901. in this state policy established has been proceeding, v. 421, 705]; Thomas 424 P. (1901) 132 Cal. v. Whitter [64 Frost e.g., A cor 150, 128].) P.2d 155 (1957) Cal.App.2d 151 Bruza [311 v. Massachusetts with Austin beginning line of decisions relative 817, 364 (1961) Cal.Rptr. Cal.2d 596 56 Insurance Co. & Bonding [15 relates back that an amended the rule 681], spells P.2d out the bar and thus avoids original complaint of the date of the filing pleadings in both recovery sought so long of limitations of the statute (See, v. Crown Garrett e.g., set of facts. the same general based upon 590]; Grudt (1968) Cal.Rptr. Coach Corp. [66 465, 468 P.2d Cal.Rptr. 2 Cal.3d 575 Angeles Los City 18 Cal.3d Co. Mfg. v. Nicholson Smeltzley 825]; prece The 121].) foregoing 85 A.L.R.3d 559 P.2d *4 on should be decided that “cases policy the fundamental dents rest on 585.) (Grudt, at p. 2 Cal.3d 575 merits.” supra, their amend, defendant in opposition In its memorandum not “relate could amendment proposed Concrete Sawing argued limitations. Three authori the statute of back” and thus was barred edition of Witkin’s prior court: an outmoded ties were cited to the trial Austin v. Massa two cases which predated California Procedure and Co., decisions adhered to These chusetts & Insurance Bonding supra. that in ground distinguished an earlier rule and were specifically 600-601.) failed (Id., arguments Defendant’s 56 Cal.2d at pp. Austin. and amendment that the original to demonstrate rule; Austin facts within the relate to the same set of general did not and cases. best, subsequent of Austin misunderstanding a they betrayed deter attempt that Austin, any warned In Chief Justice Gibson it whether inquiring back by related mine whether an amendment and in confusion .. . results cause of action’ stated a different “‘wholly Thus, the (Id., 601.) at p. to amend.” right undue restrictions of the hand rests the case in amendment at plaintiffs proposed fact that entrustment) state a differ and legal theory (negligent a different under is irrelevant than his original “cause of action” ent Instead, Austin, Garrett, the test is whether Smeltzley. and Grudt pro facts. Plaintiffs set of same general relate to the two pleadings and the same amendment, seeking recovery posed (Smeltzley with that test. complies complaint, as the original injuries Co., Cal.3d Mfg. supra, Nicholson

Defendant also that in argued plaintiff engaged an “unwarranted de- lay” in presenting the amendment. Nothing before the trial court or before this court that suggests plaintiff was or that dilatory defendant Vickers Concrete suffered from Sawing prejudice delay. Vickers Concrete Sawing already named and served defendant before the amendment was It is proposed. difficult to understand how such a defendant can be prejudiced amendment to add an additional liability against it. is this true in Particularly of the Su- light both Austin preme Court and Smeltzley holdings that amending to substitute a named defendant for a named de- fictiously fendant after the statute of limitations has run does not establish that the plaintiff was or dilatory that substituted defendant was newly (Austin, 602; supra, Smeltzley, supra, prejudiced. 56 Cal.2d at p. 1.) Instead, Cal.3d at fn. p. facts demonstrate that private counsel, answer, within a month of the of defendant’s engaged filing moved to discover quickly through interrogatories deposition details of defendant Frederick Vickers’ record and within driving one counsel, week of frustrated in that defendant’s being attempt by filed the motion to amend. What evidence there is of tactics does not dilatory from spring plaintiff.

Defendant Vickers Concrete here “if en- Sawing argues *5 case, trustment does in fact become an issue in the of the adjudication both defendants will suffer substantial as a result of the likely prejudice on the jury being apprised of the Vehicle Code violations accidents of Frederick Vickers which would otherwise be inadmissible and part immaterial the At oral counsel argument issues determined.” being conceded that if had included the entrustment plaintiff negligent theory in his the evidence of defendant Fred Vickers’ driv- original complaint, is not record would be relevant and admissible. Such evidence ing matter later amendment to the transmuted to “prejudicial” pleadings. brief, moved to timely

In the evidence shows that undisputed plaintiff of purposes file an amendment his which relates back complaint of theory liability against the limitations to add an additional statute of the of such an Allowing filing a named and served defendant. previously with the funda- of and in justice keeping amendment furtherance be decided on their merits. mental our courts that cases should policy of Su- respondent Let a writ of mandate issue directing peremptory his to amend County permit plaintiff Court of San Mateo perior 491 action of entrustment negligent cause of with an additional Concrete Sawing. defendant Vickers against J., concurred. P.

Rattigan, Acting

CHRISTIAN, dissent. I respectfully J. a matter of course but was at

Amendment of this was not (Code Proc., 473.) Civ. Amendment of the trial court. the discretion § should be allowed with lib- of the pleadings any stage proceedings of (2d 1040, (See Witkin, 1971) Pleading, Cal. Procedure ed. 3 erality. here court present, respondent But under the circumstances p. to amend his request did abuse its discretion in denying petitioner’s not on the eve arbitration. of the burden of that the ends showing has Although moving party (Plummer v. Court will be served the amendment justice Superior 294]), 843 has Cal.App.2d petitioner him that can result from his suggested proposed never benefit to amendment. The amendment would entrust- plead theory negligent theories, ment in addition to against corporation already pleaded, as and owner. The in the amend- liability employer allegation ment is that it was to entrust the vehicle to Frederick reckless driver of auto- when it was known that he “was a careless and ” in the mobiles ... . Although theory (see Accident & Indemni- abstract be based on other grounds Hartford as Cal.Rptr. 254]), Co. v. Abdulla ty dependent court the new presented respondent concretely were caused foreseeable petitioner’s injuries finding Vickers, “recklessness” on the of Frederick part just “carelessness” or *6 on vicarious responsibility the two theories are based already pleaded reckless, will was careless or re- petitioner for his If Vickers negligence. the new cannot pleaded; theory cover on the theories negligence already was negligent, peti- enhance his If Vickers not prospects recovery. or on the already pleaded tioner cannot recover on either of the theories be in the pleaded entrustment as to theory sought amendment. no ad- legitimate

While the new will thus to theory open petitioner it to the expect compromise court could vantage, respondent reasonably that is irrelevant on fairness of the trial the door to evidence by opening the defense on a the of Vicker’s but to negligence prejudicial issue of previous broader basis. unsafe Freder- Specifically, proof driving by ick At trial the court could in the clearly portended. is exercise evidence, of its the discretionary power exclude basis of its pre- on the Vickers’ where judicial effect issue of the negligence, could to theory nothing add the that prospect petitioner (Evid. Code, cannot be might legitimately prevail. It an abuse have discretion an amendment which could no other effect reject than the trial that be to evidence could nevertheless open properly (See excluded in the exercise Downing of discretion. Barrett Mobile Home Inc. 524-525 Transport, 277].) Respondent court could also determine the amend- reasonably ment was It timely. not would introduce a new set of facts which must be dealt with both a time parties at when the case is for arbi- ready tration. Petitioner’s excuse for was that did delay petitioner not have his present until attorney June 1980. Assuming petitioner without (which counsel for the entire time the since not established record), petitioner has not he suggested delayed two and why one-half The new years seeking representation. attorney has belatedly thought legal of a that can no gain petitioner additional recov- will ery, risk with irrelevant matter prejudicing determination of the basic issue which rests and will a new upon liability issue which inject further or require investigation discovery procedures.

We should remember that we are not called second-guess trial court or to give effect to our own inclinations to how we would handle a if we discretionary decision were a trial court’s law hearing and motion calendar. To avoid the administration disrupting of justice court, in the we trial should intervene in not matters in the pending trial courts unless action is necessary to harm to the truly prevent interests of justice. It was not an abuse discretion to deny motion (Cf. amend. Rainer v. Community Memorial Hosp. Cal. App.3d 257-259 Cal.Rptr. 901].) Intervention this court is not warranted.

I would deny writ.