Opinion
F075175
10-09-2018
TYLER WAYNE SHERWOOD, Plaintiff and Appellant, v. KERN VALLEY HEALTHCARE DISTRICT, Defendant and Respondent.
Law Offices of John J. Jackman and John J. Jackman for Plaintiff and Appellant. Clifford & Brown, Patrick J. Osborn and Ann S. Garza for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BCV-15-100881)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge. Law Offices of John J. Jackman and John J. Jackman for Plaintiff and Appellant. Clifford & Brown, Patrick J. Osborn and Ann S. Garza for Defendant and Respondent.
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Tyler Wayne Sherwood (plaintiff) is the surviving spouse of Alexandra Sherwood, who committed suicide at the age of 21. Plaintiff sued Kern Valley Healthcare District (defendant) for wrongful death on a theory of medical negligence. Defendant, a public entity, successfully moved for summary judgment based on plaintiff's noncompliance with procedural requirements of the Government Claims Act (Gov. Code, § 810 et seq.), formerly known as the Tort Claims Act. This appeal is taken from a judgment entered on the order granting defendant's motion. However, the issues concern the trial court's denial of a request for leave to amend the complaint.
Facing the inevitable dismissal of his case on summary judgment, plaintiff had hoped to circumvent the Government Claims Act by pleading two causes of action under federal law. As we explain, the proposed amendment did not relate back to the original complaint for statute of limitations purposes. Furthermore, plaintiff did not have standing to assert the federal claims in his individual capacity. The amendment necessitated replacing plaintiff with a new party and would have substantially changed the nature of the action. Even assuming the proposed amendment was permissible, it was within the trial court's discretion to deny the request because of plaintiff's unwarranted delay in seeking leave to amend and the consequential prejudice to defendant. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 4, 2014, the decedent went to the emergency department at Kern Valley Hospital complaining of suicidal thoughts and reporting a history of mental illness, but she left after allegedly waiting more than four hours to be seen. Afterward, she killed herself. Eleven months later, in August 2015, plaintiff's legal counsel sent defendant a notice of intent to sue pursuant to Code of Civil Procedure section 364. The letter was properly directed to the Risk Management department of Kern Valley Healthcare District at defendant's address on Laurel Avenue in Mountain Mesa. The document indicates a copy was also sent to Kern Valley Hospital at 6429 Park Avenue in Lake Isabella.
This statute applies to any lawsuit filed against a healthcare provider for professional negligence. No such action may be filed "unless the defendant has been given at least 90 days' prior notice of the intention to commence the action." (Code Civ. Proc., § 364, subd. (a).) The obligation is separate from additional requirements of the Government Claims Act in cases involving public entity defendants. (Anson v. County of Merced (1988) 202 Cal.App.3d 1195, 1203-1204.) Incidentally, the attempt to comply with section 364 was defective insofar as plaintiff's counsel waited only a few days before filing the lawsuit, thereby depriving defendant of its right to 90 days' notice. (See Woods v. Young (1991) 53 Cal.3d 315, 325-327 & fn. 3.)
On September 1, 2015, plaintiff filed a complaint alleging one cause of action for wrongful death based on medical negligence. The named defendants were "Kern Valley Hospital and Does 1 through 25, inclusive." Kern Valley Hospital is owned and operated by defendant, which is a public entity. Therefore, as a prerequisite to filing suit in the trial court, plaintiff was obligated to present a government tort claim directly to defendant within six months of the accrual of his cause of action. (Gov. Code, § 911.2.)
On September 8, 2015, defendant sent a letter to plaintiff's attorneys notifying them of the failure to comply with the Government Claims Act and advising of potential avenues of relief, e.g., applying for permission to present a late claim. (Gov. Code, §§ 910.8, 911, 911.4, 911.6, 911.8., 946.6.) Despite the written advisement, plaintiff took no corrective action. Defendant filed an answer and conducted discovery, which confirmed plaintiff's claim had likely accrued on the date of his wife's death and certainly no later than October 2014.
On July 29, 2016, defendant filed its motion for summary judgment. The motion was based on plaintiff's failure to present a government tort claim and the expiration of time to remedy the omission. Three months later, on November 2, 2016, plaintiff filed an ex parte application for leave to amend the complaint and/or have a motion for such relief heard on shortened time. Leave to amend was requested pursuant to Code of Civil Procedure section 473. The trial court agreed to hear the motion on shortened time and scheduled it for November 21, 2016, the date already reserved for defendant's motion for summary judgment.
According to attorney declarations filed below, defendant's September 2015 letter regarding plaintiff's failure to comply with the Government Claims Act was presumably received by plaintiff's counsel but never read. The error was attributed to a mail clerk/legal assistant who had experienced a series of "minor strokes" and was believed to have discarded or misplaced the letter. Since none of the attorneys ever saw the letter, plaintiff's counsel was allegedly ignorant of defendant's status as a public entity until the filing of its motion for summary judgment. "Upon receiving the motion, [p]laintiff's counsel began to evaluate and ascertain if any other causes of action would be applicable in this case." After "conducting research," counsel believed plaintiff had colorable claims under federal law.
Plaintiff's proposed amended complaint attempted to state causes of action under title II of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12132; hereafter ADA) and section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794; hereafter Rehabilitation Act). These claims alleged intentional discrimination by defendant against the decedent because of a disability, i.e., her "mental impairment." Defendant was accused of violating the decedent's "individual civil rights" as guaranteed by the federal Constitution and causing various injuries to her, but not to plaintiff himself. The prayer for relief sought remedies available under federal law, including compensatory damages and attorney fees.
After moving for leave to amend, plaintiff filed an opposition to the motion for summary judgment. The merits of defendant's motion were not disputed, but plaintiff requested it be treated as one for judgment on the pleadings and granted with leave to amend. In the alternative, he asked the trial court to grant the motion for leave to amend and deny defendant's summary judgment motion as moot. Plaintiff argued either disposition was permissible because the proposed federal claims were timely under the relation-back doctrine.
Defendant opposed amendment of the pleadings on multiple grounds. First, it argued plaintiff's delay in seeking leave was unwarranted and allowing the amendment would be prejudicial. Second, defendant argued the claims were time-barred and did not relate back because they would transform the case into a survivor action for injuries to the decedent rather than her heirs.
According to the trial court's written order, the motions were submitted without argument. Summary judgment was granted for the following reasons:
"Plaintiff failed to file a timely claim against Defendant [Kern Valley Healthcare District], pursuant to Government Code Section 911.4(a), failed to make an Application for leave to present a late claim, pursuant to Government Code Section 911.4, and failed to petition the Court, pursuant to Government Code Section 946.6, for an order relieving Plaintiff from compliance with the Tort Claims Act provisions. As a result, Plaintiff has no remedy which would relieve him of his failure to comply with the requirements of the Tort Claims Act."
The trial court provided no analysis regarding plaintiff's request to amend the complaint. The motion for leave to amend was simply denied as "moot," apparently in light of the summary judgment ruling. This timely appeal followed.
DISCUSSION
I. Standard of Review
"A trial court should grant a defendant's motion for summary judgment if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. On appeal, we review the matter independently, resolving in the plaintiff's favor any doubts regarding the propriety of summary judgment." (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 415.) "We must affirm a summary judgment if it is correct on any of the grounds asserted in the trial court, regardless of the trial court's stated reasons." (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.)
The standard of review for orders denying leave to amend a complaint under Code of Civil Procedure section 473 is abuse of discretion. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) Here, plaintiff understandably complains of the trial court's denial of leave to amend on the ground of mootness. However, "if a judgment is correct on any theory, the appellate court will affirm it regardless of the trial court's reasoning." (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) "We imply all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings." (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928; accord, Hall v. Municipal Court (1974) 10 Cal.3d 641, 643.) Plaintiff must affirmatively demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
II. Defendant Was Entitled to Summary Judgment
California state law imposes a prelitigation claim requirement in order to file "a cause of action for death or for injury" against a public entity. (Gov. Code, § 911.2, subd. (a).) The claim "shall be presented ... not later than six months after the accrual of the cause of action." (Ibid.) An application to present an untimely claim may be submitted to the public entity "within a reasonable time not to exceed one year after the accrual of the cause of action." (Id., § 911.4, subd. (b).) Failure to present a timely claim or obtain permission to submit a late claim is an absolute bar to pursuing the cause of action. (Id., §§ 945.4, 946.6.) Courts have no jurisdiction to grant relief from noncompliance unless the plaintiff submits an application to present a late claim within the one-year deadline. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779.)
"A cause of action ordinarily accrues when the wrongful act occurs, the liability arises, and the plaintiff is entitled to prosecute an action." (Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 66.) Under the delayed discovery rule, a cause of action does not accrue until the plaintiff discovers, or has reason to discover, the cause of action. (S.M. v. Los Angeles Unified School Dist. (2010) 184 Cal.App.4th 712, 717.) The accrual point is "when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, [i.e.,] that someone has done something wrong to her." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) Plaintiff's deposition testimony showed he suspected negligence by the hospital shortly after his wife's death and no later than October 14, 2014, when his suspicions prompted him to obtain a copy of her medical records. Thus, the deadline to comply with the Government Claims Act was on or before October 14, 2015, and his failure to meet the deadline is indisputable.
The claim presentation requirement is an essential element of a cause of action against a public entity. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1241-1244.) Since defendant conclusively demonstrated plaintiff's inability to establish this element, it was entitled to have the wrongful death claim summarily adjudicated in its favor. Plaintiff points out he never pleaded compliance with the Government Claims Act, which rendered the original complaint defective and made defendant's motion for summary judgment a de facto motion for judgment on the pleadings. This argument has merit, but it does not compel reversal of the challenged order.
"In practice, where a defect appears on the face of the complaint, a trial court may elect to treat the hearing of the summary judgment motion as a motion for judgment on the pleadings and grant the opposing party an opportunity to file an amended complaint to correct the defect." (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625.) Because plaintiff was required to plead compliance with the Government Claims Act or circumstances excusing compliance, his omission subjected the complaint to a motion for judgment on the pleadings. (State of California v. Superior Court, supra, 32 Cal.4th at p. 1243; Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 702 ["Judgment on the pleadings is similar to a demurrer and is properly granted when the 'complaint does not state facts sufficient to constitute a cause of action against [the] defendant'"].) However, curing the pleading defect would have been pointless since it was impossible for him to ever establish a triable issue of fact. Moreover, the allegations in a complaint must be made in good faith (Code Civ. Proc., § 128.7, subd. (b)(3)), and plaintiff could not have honestly pleaded the missing element of his claim.
"When a motion for summary judgment is in effect a motion for judgment on the pleadings, it is better practice to grant the motion with leave to amend and, after the issues have been properly plead[ed], to renew the motion for summary judgment." (Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1120.) "Although such a two-step procedure would have been preferable, here, the result would nevertheless have been the same. In the light of this, no purpose would be served in returning the case to the court below only to have the pleadings amended and, thereafter to have a renewed motion for summary judgment granted." (Ibid. [affirming summary judgment based on plaintiff's noncompliance with the claim presentation requirement].)
III. Leave to Amend Was Properly Denied
A. Permissibility of the Amendment
Claims alleging civil rights violations under federal statutes have been found to be exempt from California's Government Claims Act. (State of California v. Superior Court, supra, 32 Cal.4th at p. 1240; Williams v. Horvath (1976) 16 Cal.3d 834, 841.) This explains plaintiff's belated attempt to assert claims under the ADA and Rehabilitation Act. To maintain a cause of action under title II of the ADA, "a plaintiff must show: (1) he is a 'qualified individual with a disability'; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability." (Duvall v. County of Kitsap (9th Cir. 2001) 260 F.3d 1124, 1135 (Duvall.) Similarly, under section 504 of the Rehabilitation Act, the plaintiff must show (1) he or she is disabled; (2) he or she is otherwise qualified to receive the benefits of a public entity's services, programs, or activities; (3) he or she was denied such benefits by reason of his or her disability; and (4) the program receives federal financial assistance. (Weinreich v. Los Angeles County (9th Cir. 1997) 114 F.3d 976, 978.)
To recover monetary damages under title II of the ADA or the Rehabilitation Act, a plaintiff must prove intentional discrimination. (Duvall, supra, 260 F.3d at p. 1138.) The case law refers to a "deliberate indifference" standard. (Ibid.) "Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that ... likelihood." (Id. at p. 1139.) "This is a stringent standard of fault, 'even higher than gross negligence[.]'" (Garedakis v. Brentwood Union Sch. Dist. (N.D.Cal. 2016) 183 F.Supp.3d 1032, 1043.)
In pleading the above elements in his proposed amended complaint, plaintiff alleged a violation of the decedent's rights, not his own. The same is true with regard to the alleged injuries. Therefore, defendant argues the causes of action did not relate back to the filing of the original complaint.
The relation-back doctrine ordinarily arises in the context of a statute of limitations analysis. (Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 1010, 1038.) Defendant presumes the ADA and Rehabilitation Act claims were subject to the two-year statute of limitations applicable to personal injury actions (Code Civ. Proc., § 335.1), meaning those causes of action were time-barred as of September or October 2016, before plaintiff requested leave to amend. Our analysis will begin by explaining why defendant's relation-back argument is correct, then turn to the more difficult statute of limitations issue, and conclude with a discussion of controlling principles regarding the addition of new plaintiffs to an existing lawsuit.
"The primary right theory is a theory of code pleading that has long been followed in California. It provides that a 'cause of action' is comprised of a 'primary right' of the plaintiff, a corresponding 'primary duty' of the defendant, and a wrongful act by the defendant constituting a breach of that duty.... [¶] As far as its content is concerned, the primary right is simply the plaintiff's right to be free from the particular injury suffered." (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.) These concepts support the relation-back doctrine, under which an amended complaint is said to "relate back" to a timely filed original complaint, thus avoiding any statute of limitations barrier, if certain conditions are met. "[T]he amended complaint must (1) rest on the same general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality, as the original one." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409.)
As explained in Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256 (Quiroz), wrongful death actions and survivor actions involve different types of injuries. A wrongful death claim "arises on the death of the decedent and it is vested in the decedent's heirs." (Id. at p. 1263.) It is statutory in nature and designed "to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death." (Ibid.) "Damages awarded to an heir in a wrongful death action are in the nature of compensation for personal injury to the heir." (Id. at p. 1264, italics added; accord, Ruiz v. Podolsky (2010) 50 Cal.4th 838, 850, fn. 3 ["The term 'wrongful death' is not used in the statutes defining a survivor action, but is reserved exclusively to refer to the independent actions of the decedent's heirs for their own injuries"].)
"Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event." (Quiroz, supra, 140 Cal.App.4th at p. 1264.) Standing to bring a survivor claim is governed by Code of Civil Procedure section 377.30: "A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest ..., and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest." The recoverable damages are limited by statute to those sustained or incurred by the decedent prior to death. (Code Civ. Proc., § 377.34; Quiroz, at p. 1265.) In other words, survivor actions are based on injuries to the decedent. (Garofalo v. Princess Cruises, Inc. (2000) 85 Cal.App.4th 1060, 1072.)
In Quiroz, the initial complaint alleged wrongful death claims in connection with the passing of a dependent adult in a nursing home. (Quiroz, supra, 140 Cal.App.4th at p. 1266.) The first amended complaint added a survivorship claim, which purported to assert the rights of the decedent. (Id. at p. 1267.) The defendants moved for summary adjudication of the survivor cause of action, arguing it was time-barred and did not relate back to the original complaint. The appellate court agreed:
"[W]e readily conclude, as did the court below, that the survivor cause of action pleaded a different injury than the initial complaint. We also conclude that the two claims in the amended pleading were asserted by different plaintiffs, [the decedent's mother] acting in two separate capacities with respect to each, and that the addition of fresh allegations concerning her representative capacity in pursuit of the new survivor claim was not just the mere technical substitution of the proper party plaintiff on a previously existing claim. This survivor claim, which plaintiff pursued as the decedent's successor in interest, pleaded injury to the decedent .... In contrast, the earlier-filed wrongful death claim pleaded only injury to plaintiff, acting for herself, as the decedent's heir." (Id. at p. 1278.)
The current case is factually analogous to Quiroz, and the legal issues are indistinguishable. The original complaint alleged injuries to plaintiff, i.e., loss of "society, comfort, attention, services, and support," plus the incurrence of funeral and burial expenses, because of his wife's wrongful death. The proposed federal claims alleged violations of the decedent's "individual civil rights" and injury to the decedent in the form of "severe emotional distress, aggravation of her medical condition, and other serious medical conditions ...," as well as "great mental pain, and shock to her nervous system, resulting in her death." By the inherent nature of these allegations, the federal claims were survivor causes of action. (Quiroz, supra, 140 Cal.App.4th at p. 1268.) Plaintiff sought to assert the claims on behalf of the decedent for recovery of the decedent's damages arising from injuries she sustained prior to death. "As a matter of law, these distinct claims are technically asserted by different plaintiffs and they seek compensation for different injuries. [Citations.] Accordingly, the doctrine of relation back does not apply." (Id. at pp. 1278-1279.)
In the proceedings below, plaintiff did not dispute the applicability of a two-year statute of limitations. He instead argued the federal claims represented additional theories of wrongful death and were not survivor causes of action—a plainly untenable position. Plaintiff now alleges the statute of limitations for the ADA claim was three years. He therefore declines to address Quiroz in his briefing, despite defendant's reliance on the case, and submits the relation-back discussion is "moot." We are not so persuaded.
Federal law does not prescribe a statute of limitations for claims under title II of the ADA or the Rehabilitation Act. (Kramer v. Regents of University of California (N.D.Cal. 1999) 81 F.Supp.2d 972, 973.) "Where federal statutes do not contain their own limitations periods, federal courts apply the most appropriate or analogous state statute of limitations." (Ibid.) Many federal district courts and circuit courts of appeals apply state law statutes of limitations for personal injury actions to both types of claims. (Sharkey v. O'Neal (9th Cir. 2015) 778 F.3d 767, 770 (Sharkey).) For example, the Eastern District of California has held that causes of action under the Rehabilitation Act are subject to the two-year statute of limitations of Code of Civil Procedure section 335.1. (J.W. v. Fresno Unified Sch. Dist. (E.D.Cal. 2008) 570 F.Supp.2d 1212, 1222.)
In Sharkey, the Ninth Circuit held "that California Government Code § 11135 provides the most analogous state-law claim to a Title II claim [under the ADA]." (Sharkey, supra, 778 F.3d at p. 771.) The opinion goes on to conclude Government Code section 11135, which does not itself contain a statute of limitations, is most likely governed by the three-year limitations period applicable to "'[a]n action upon a liability created by statute, other than a penalty or forfeiture,'" i.e., Code of Civil Procedure section 338, subdivision (a). (Sharkey, at p. 773.) Ninth Circuit precedent thus requires California federal district courts to apply a three-year statute of limitations to title II claims under the ADA. The Sharkey decision contains no express holding regarding the applicable limitations period for claims under the Rehabilitation Act.
Although they carry significant weight, especially in the context of interpreting federal law, Ninth Circuit decisions are not binding on California's state courts. (Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93, 97-98.) To the best of our knowledge, neither the California Supreme Court nor the Courts of Appeal have endeavored to determine the applicable statute of limitations for a title II ADA claim or a cause of action brought under Government Code section 11135, which sets forth a nondiscrimination policy for state programs. We decline to express an opinion on the holding of Sharkey, but the following observations are worth mentioning.
Government Code section 11135 closely mirrors the relevant provision in title II of the ADA. However, similar protections are found in California's Disabled Persons Act (Civ. Code, § 54 et seq.), which provides in part: "[(a)(1)] Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, medical facilities, including hospitals, clinics, and physicians' offices .... [¶] ... [¶] (d) A violation of the right of an individual under the Americans with Disabilities Act of 1990 ... also constitutes a violation of this section ...." (Civ. Code, § 54.1.) A plaintiff who pursues a cause of action under Government Code section 11135, which Sharkey found to be "an almost identical state-law counterpart to Title II" (Sharkey, supra, 778 F.3d at p. 771), may only obtain equitable relief. (Gov. Code, § 11139; Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567, 594.) In contrast, title II of the ADA allows for the recovery of compensatory damages and attorney fees, among other remedies. (42 U.S.C. § 12205; Ferguson v. City of Phoenix (9th Cir. 1998) 157 F.3d 668, 673-674.) This discrepancy is acknowledged by Sharkey in a footnote, but disregarded without further analysis. (Sharkey, supra, at p. 771, fn. 5.) We cannot presume the courts of this state would find the distinction so insignificant, but need not reach that issue to resolve this appeal.
"Title II of the ADA provides that 'no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.' 42 U.S.C. § 12132. [Government Code s]ection 11135(a) similarly provides that 'No person in the State of California shall, on the basis of ... disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.'" (Sharkey, supra, 778 F.3d at p. 771.)
If plaintiff is correct about the three-year statute of limitations, his prejudice argument falls apart. His briefs contend the denial of leave to amend deprived him of "the right to assert a meritorious action." In actuality, plaintiff's right to pursue a wrongful death claim was foreclosed by noncompliance with the Government Claims Act. The decedent's right to pursue federal claims, assuming such a right existed, survived her death and was enforceable by her estate or her heirs in a representative capacity. The survivor causes of action involved a separate and distinct primary right, i.e., the decedent's right to be free from the injuries allegedly caused by defendants. If the causes of action were not time-barred, then it appears her estate/heirs could have filed a separate lawsuit independent of plaintiff's wrongful death action. (E.g., Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904 [explaining how "California's res judicata doctrine is based upon the primary right theory"]; Horwich v. Superior Court (1999) 21 Cal.4th 272, 284 [prior adjudication of decedent's injury claim is not res judicata as to heirs' wrongful death claim, but collateral estoppel may apply]; In re Marriage of Garcia (2017) 13 Cal.App.5th 1334, 1345 ["In theory, claim preclusion bars a second litigation because a responding party's potential responsibility for an intrusion on or entitlement to a single 'primary right' gives rise only to a single cause of action"].)
More importantly, the California Supreme Court has distinguished between the relation-back doctrine and certain requirements for amending complaints to add or substitute a new party. (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 244 (Branick) ["Similar principles govern the question whether an amendment relates back, for purposes of the statute of limitations"].) "[T]he plaintiff proposed to be substituted may not 'state facts which give rise to a wholly distinct and different legal obligation against the defendant.'" (Id. at p. 243, quoting Klopstock v. Superior Court (1941) 17 Cal.2d 13, 20.) "For this purpose, '[i]n determining whether a wholly different cause of action is introduced by the amendment[,] technical considerations or ancient formulae are not controlling; nothing more is meant than that the defendant not be required to answer a wholly different legal liability or obligation from that originally stated.'" (Branick, at pp. 243-244.) Put differently, "the inquiry is whether the nature of the action is substantially changed." (5 Witkin, Cal. Procedure (5th ed. 2008) Pleadings, § 1219, p. 654.)
We have explained why the proposed federal claims were survivor causes of action that could not be asserted in plaintiff's individual capacity. An amendment to allow those claims necessarily required adding a new party, even if the change only substituted plaintiff in a representative capacity. (Quiroz, supra, 140 Cal.App.4th at p. 1278.) Yet "the addition of fresh allegations concerning [his] representative capacity in pursuit of the new survivor claim was not just the mere technical substitution of the proper party plaintiff on a previously existing claim." (Ibid.) The survivor claims alleged a separate and distinct injury from the one underlying the wrongful death cause of action, which substantially changed the nature of the action by pleading "'a wholly different legal liability or obligation from that originally stated.'" (Branick, supra, 39 Cal.4th at p. 243; accord, Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 533 [amendment of wife's personal injury complaint to add husband as additional plaintiff and a second cause of action for loss of consortium involved "a wholly different legal liability or obligation[;] his claim [was] not for her personal injuries but for the separate and independent loss he sustained"].) Therefore, the trial court did not err by denying leave to amend. (Cf. Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230-231 [leave to amend at summary judgment stage properly denied where new claims did not relate back to original complaint].)
B. Discretion to Deny Relief
Leave to amend a complaint is entrusted to the sound discretion of the trial court. "'"The exercise of that discretion will not be disturbed on appeal absent a clear showing of abuse. More importantly, the discretion to be exercised is that of the trial court, not that of the reviewing court. Thus, even if the reviewing court might have ruled otherwise in the first instance, the trial court's order will yet not be reversed unless, as a matter of law, it is not supported by the record."'" (Branick, supra, 39 Cal.4th at p. 242.) Accordingly, were we to assume the proposed amendment was permissible, we would affirm the trial court's ruling for the following reasons.
A trial court's broad discretion to permit or deny the amendment of pleadings is tempered by "a strong policy favoring liberal allowance of [such] amendments." (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 383; 5 Witkin, supra, Pleadings, § 1194, p. 627.) It has thus been held, "If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend ...." (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, italics added.) Conversely, "[t]he law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial. The cases indicate that the denial may rest upon the element of lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party [citations]." (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-940; accord, Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175-176, and cited authorities [leave to amend denied at summary judgment stage; plaintiffs offered "no explanation for [the] clearly unreasonable delay"].)
In arguing for more stringent scrutiny, plaintiff recites a passage from Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428, which quotes Edwards v. Superior Court (2001) 93 Cal.App.4th 172, 180: "'Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff's claim is clear, but under substantive law, no liability exists and no amendment would change the result.'" This statement traces back to CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1539, an appeal from the sustaining of a demurrer without leave to amend. It is only a different articulation of the rule for that type of case: "[I]t is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) Here we are concerned with the discretionary denial of leave to amend under Code of Civil Procedure section 473, and the applicable standards are as we have stated.
Regarding the issue of timeliness, the mistake by plaintiff's counsel's legal assistant does not fully explain, nor justify, the excessive delay in seeking leave to amend. Plaintiff's 90-day notice letter (Code Civ. Proc., § 364) shows counsel was aware of a relationship between the hospital and Kern Valley Healthcare District (i.e., defendant) in August 2015. As defendant argued below, the word "district" has a specific legal definition. It means "an agency of the state, formed pursuant to general law or special act, for the local performance of governmental or proprietary functions within limited boundaries ...." (Gov. Code, § 56036, subd. (a).)
The legal assistant's mishandling of defendant's September 2015 letter regarding the Government Claims Act does not explain how plaintiff's counsel remained ignorant of defendant's public entity status after being served with its answer to the complaint. The three-page answer, filed November 4, 2015, states defendant was erroneously sued as "Kern Valley Hospital" and identifies eight defenses. Under the heading "VIII," defendant cited "the provisions of Government Code §§ 815, 815.2, 815.4, 818, 818.8, 855, 855.6, 855.8, 856, 856.2, 856.4, 905, 911.2, 911.4, 945.4, 945.6, 945.8, 962, 970.6, 984 and 985." The fact defendant even referenced the Government Code likely constituted inquiry notice. Had plaintiff's attorneys looked at those statutes, they would have realized nearly all appear in parts 2 through 4 of division 3.6 of the code, respectively entitled "Liability of Public Entities and Public Employees," "Claims Against Public Entities," and "Actions Against Public Entities and Public Employees." Notwithstanding counsel's apparent failure to read the answer, it is difficult to imagine the information not being revealed through routine discovery. Standard form interrogatories request the legal status of business entity defendants, details about their insurance coverage, and all facts upon which any affirmative defenses and/or denials of material allegations are based. (Judicial Council of Cal. Form Interrogatories-General (DISC-001 [Rev. Jan. 1, 2008]) Nos. 3.1-3.7, 4.1, 15.1.)
Aside from everything else, there was a perplexing 95-day interval between the service and filing of defendant's summary judgment motion and plaintiff's request for leave to amend. Plaintiff's counsel attested to learning of defendant's public entity status "[a]fter receiving [the] motion for summary judgment," and to researching the viability of additional claims "[u]pon receiving the motion." The only inferable excuse for not previously asserting the federal claims was a sudden desperation to plead around the Government Claims Act. However, no explanation was given for the three-month delay following counsel's recognition of the problem. All of these circumstances support the implied finding that plaintiff did not exercise reasonable diligence in seeking leave to amend or otherwise justify his failure to assert the proposed claims earlier in the case.
The record also supports a finding of prejudice to the defendant. "Generally, leave to amend must be liberally granted [citation], provided there is no statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation." (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448, italics added.) In Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, leave to amend was appropriately denied on "the eve of trial" because the plaintiff could not explain the omission of his proposed claim from the operative pleading, and "adding the new cause of action would have changed the tenor and complexity of the complaint." (Id. at pp. 486-487.) At a minimum, the defendant would have needed to depose additional witnesses. (Id. at pp. 487-488.) Echoing the sentiments in an analogous opinion, the appellate court observed, "'A party who waits 18 months before attempting to amend, and then does so only after trial has commenced, and who offers no excuse for the failure, can hardly complain when the request to amend is denied.'" (Id. at p. 486, quoting City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1564.)
Here, defendant was not heading into trial but rather on the verge of extricating itself from the case as the prevailing party. After 14 months of litigation, plaintiff belatedly sought to transform a garden variety negligence claim into an intentional tort action with the specter of an attorney fees award. (See Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1379, 1381 [untimely amendment resulting in significant changes to defendant's damages exposure found prejudicial].) Had leave to amend been granted, defendant would have gone from assuredly recovering its costs of suit to incurring litigation expenses for further law and motion proceedings (including a likely attack on the pleadings), new rounds of discovery, and possibly even trial. Reasonable minds could view those circumstances as prejudicial. Because the trial court's implied findings of unwarranted delay and the likelihood of prejudice are supported by the record, we cannot find an abuse of discretion.
DISPOSITION
The judgment is affirmed. Kern Valley Healthcare District is awarded its costs on appeal.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DESANTOS, J.