(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)
Plaintiff filed a lawsuit on May 1, 2007, against the Estate of Danny Smith and Richard Smith, Case No. SC2007-09, which resulted in a settlement and this Court approved Plaintiff’s Petition to Compromise a Disputed Claim on February 29, 2008. During the course of litigation in that case facts became evident that Danny Smith, a minor, was “obviously intoxicated” at El Mexicano Restaurant and served alcoholic beverages – beer and Tequila shots, throughout the evening before and the early morning of the fatal car crash. There are three other related cases that were ordered consolidated by this Court February 23, 2009.
El Mexicano was fictitiously named as Doe 1 February 13, 2008. Plaintiff filed and served a FAC on Defendant El Mexicano, which it answered on June 17, 2008. El Mexicano does not dispute that it violated Business & Professions Code Sec. 25602.1 and has already reached settlements with some of the Plaintiff’s. Plaintiff Verano’s FAC was served on Robert Greene, Doe 2 and Stacy Greene, Doe 3. Defendants demurred to Plaintiff’s FAC, and the hearing on demurrer was held April 3,2009. Plaintiff was allowed to amend his complaint and served his TAC on Defendants. A trial date has been set for November 30, 2009.
PLAINTIFF SHOULD BE ALLOWED TO FILE HIS THIRD AMENDED COMPLAINT. THIS IS BECAUSE PLAINTIFF’S POSITION IS STRONGLY SUPPORTED BY PUBLIC POLICY INTERPRETED TO ALLOW TIMELY AMENDMENTS TO PLEADINGS (C.C.P. SEC. 473) AND THE TAC SATISFIES THE REQUIREMENTS OF THE RELATION BACK DOCTRINE
First, there is strong public policy that allows a party to amend any pleading so that they may litigate cases on their merits. (Code of Civil Procedure Sec. 473.)
Defendants have raised the argument that Plaintiff’s TAC was filed and served after the two year statute of limitations had run. However, it was not until after two depositions were taken in December, 2008, that Plaintiff learned that Doe Defendants 2 and 3, Ramon and Stacy Greene, had a special relationship with Plaintiff Paul and that he was often entrusted into their care and protection by Plaintiff’s mother, especially on the night of the accident.
Through deposition testimony it was also learned thatStacy ordered the alcoholic drinks at El Mexicano, and the drinks were served to an obviously intoxicated minor because of her relationship with son of the owner of El Mexicano, which was mutually profitable:Stacy brought business to the restaurant, in turn restaurant benefitted because it made money on food. In exchange,Stacy benefitted because drinks were comped for herself and the minors.
Plaintiff’s complaint was filed on May 1, 2007. His TAC has added new causes of action and later identified Defendants Robert Greene and Stacy Greene, Does 2 and 3. Our Court of Appeal, in Austin v. Massachusetts Bonding & Insurance Co. 56C.2d 596 (1961) held that where a complaint is amended after the statute of limitations has run to identify a fictitiously-named defendant and to assert a cause of action against the defendant not included in the original complaint, the amended complaint will be given relation back effect so as to avoid the statute of limitations provided:
1. the original complaint stated a valid cause of action against the now-identified Doe defendant;
2. plaintiff was genuinely ignorant of the defendant’s identity or the facts rendering defendant liable when the original complaint was filed; (emphasis added) and
3. recovery is sought in both pleadings on the same general set of facts as the original and refers to the same accident and same injuries. (Austin v. Massachusetts Bonding & Ins. Co., supra, 56 C.2d at 601)
Plaintiff has met the requirements to satisfy the “relation back doctrine” and Defendants’ argument that Plaintiff’s TAC was filed after the statute of limitations must fail. (See Part 3 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.