Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 050000840
CANTIL-SAKAUYE, J.
Yuba Street Developers, LLC (Developers), appeals the judgment dismissing it with prejudice as a petitioner and plaintiff in an action brought under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), after the trial court sustained the Department of Transportation’s (Caltrans) demurrer to the second amended petition for writ of mandate and complaint on the ground that the action by Developers was barred by the statute of limitations. Developers contends the trial court erred in ruling the second amended petition and complaint did not “relate back” to the original petition filed by Yuba Street Ventures, LLC (Ventures). Developers also contends the trial court erred in denying leave to amend the petition to add an after-formed organization under Public Resources Code section 21177, subdivision (c). We agree with Developers’s first contention, but conclude as to the second contention, Developers has not shown any abuse of discretion by the trial court in denying its request for leave to amend. We shall reverse the judgment of the trial court with directions to enter a new order overruling Caltrans’s demurrer to the second amended petition for writ of mandate and complaint.
FACTUAL AND PROCEDURAL BACKGROUND
On November 2, 2005, Ventures filed the original petition for writ of mandate and complaint for declaratory relief in this case challenging the certification of a final environmental impact report (EIR) by Caltrans and the Department of General Services (DGS) for the construction of a replacement office building for Caltrans District 3 on existing State of California property located in the eastern portion of downtown Marysville. Ventures was the only named petitioner. The petition was timely filed within the 30-day period for an action alleging an EIR does not comply with the requirements of CEQA. (Pub. Resources Code, § 21167, subd. (c).)
DGS is not a party to this appeal.
Ventures alleged in its petition it would be directly and adversely affected by the Project as it was the owner of an office building located at 720 Yuba Street, in Marysville, in proximity to the project site. The adverse effects would include, but not be limited to environmental impacts associated with traffic circulation, parking, and safety. The first cause of action under CEQA alleged certification of the EIR was unlawful and in violation of CEQA specifically because of 1) the inadequate analysis and insufficient mitigation of transportation and traffic impacts, 2) the inadequate analysis and insufficient mitigation associated with parking impacts, 3) the inadequate analysis and insufficient mitigation of pedestrian circulation and pedestrian safety, 4) the failure to adequately assess land use and project design issues, and 5) the failure to adequately assess historical resource impacts. The petition alleged the findings of fact and statement of overriding considerations (Findings) and the decisions by Caltrans and DGS to adopt such Findings were not supported by substantial evidence. The petition alleged the Mitigation Monitoring and Reporting Program (MMRP) fails to meet CEQA standards. The substances of such allegations were incorporated in the second cause of action for declaratory relief. The petition alleged Donna Peter, on behalf of Ventures, timely filed comments addressing a variety of defects with the environmental analysis in the draft EIR and that Ventures “has performed any and all conditions precedent to filling [sic] this action and has exhausted any and all available administrative remedies to the extent required by law.”
On December 2, 2005, a first amended petition for writ of mandate and complaint for declaratory relief was filed by Ventures and Developers against Caltrans and DGS. The petition challenged the same project and EIR. The first cause of action for violation of CEQA specified the same five defects in analysis, the same lack of substantial evidence and the same failure of the MMRP to meet CEQA standards as alleged in the original petition. The second cause of action again alleged grounds for declaratory relief. The first amended petition alleged both petitioners own property near the project site which would be adversely affected by the project. The petition alleged Peter represented both Ventures and Developers at all relevant times and submitted her comments on behalf of both petitioners.
Caltrans demurred to the first amended petition and complaint on the grounds that both petitioners lacked standing to bring the action, that Ventures had failed to exhaust its administrative remedies, and that the action by Developers was barred by the statute of limitations. The trial court sustained the demurrer as to Developers on the statute of limitations ground with leave to amend, but otherwise overruled Caltrans’s demurrer.
Ventures and Developers filed a second amended petition for writ of mandate and complaint on February 24, 2006. The second amended petition alleged the identical substantive defects with the same project of Caltrans and DGS. The second amended petition alleged again that both petitioners were owners of property located near the project and that Peter had timely filed comments on their behalf. The second amended complaint added allegations that attorney Peter had submitted a comment letter during the administrative process indicating she was legal counsel for Developers. According to the second amended complaint, Peter’s letter also stated her “clients own the current building leased by Caltrans, ” a building actually owned by Ventures, although Ventures was not named in the letter. The petition alleged both corporations have similar names, both are represented by Peter, both own property in and around the project site, and both are managed by David Lanza, the individual who verified each of the petitions in this action. The second amended petition set out some of the circumstances surrounding the filing of the original petition and alleged Lanza mistakenly instructed counsel to name Ventures as the petitioner, rather than Developers, a “misnomer” that was promptly corrected by the filing of the amended petition.
Caltrans again demurred to the second amended complaint on the ground that the action by Developers was barred by the statute of limitations. The trial court sustained the demurrer without leave to amend based on the finding that Developers and Ventures “are separate legal entities, each asserting independent rights. Neither Petitioner is entitled to act on behalf of, or in place of, the other Petitioner. Therefore, the addition through an amended pleading of Yuba Street Developers, LLC, as a second Petitioner, after expiration of the statute of limitations, does not relate back in time to the filing of the initial Petition on November 2, 2005.” The trial court denied Developers’s request for leave to amend in order to name an after-formed organization pursuant to Public Resources Code section 21177, subdivision (c). A judgment was subsequently entered dismissing, with prejudice, Developers from the action.
DISCUSSION
I.
The Trial Court Erred In Concluding The Second Amended Petition Did Not Relate Back To The Original Petition
“A court may, in the furtherance of justice allow a party to amend any pleading by adding the name of any party. (Code Civ. Proc., § 473.) California courts have shown a liberal attitude toward allowing amendment of pleadings to avoid the harsh results imposed by statutes of limitations. [Citations.] Thus, proper amendments to an original complaint ‘relate back’ to the date of the filing of the original complaint, despite the amendments being made after the statute of limitations has expired. [Citation.] The policy behind statutes of limitations is to put defendants on notice of the need to defend against a claim in time to prepare a fair defense on the merits. This policy is satisfied when recovery under an amended complaint is sought on the same basic set of facts as the original pleading. [Citation.]” (Garrison v. Bd. of Directors (1995) 36 Cal.App.4th 1670, 1677-1678.) “The relation-back doctrine requires that the 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. [Citations.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409, emphasis in original; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) Pleadings, ¶ 6:717, p. 6-177.)
In determining whether an amended pleading relates back to an original, timely pleading, “the focus is on the factual allegations against the defendant, not upon the identity of the plaintiff. Hence the case law allows amendment to change the plaintiff and holds that such an amendment does not amount to a change in the cause of action for statute of limitations purposes.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004, fn. 4.) As Witkin puts it: “[T]he allowance of amendment and relation back to avoid the statute of limitations does not depend on whether the parties are technically or substantially changed; rather the inquiry is as to whether the nature of the action is substantially changed.” (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 1151, p. 609.)
An amended pleading will relate back if the amended pleading merely substitutes a plaintiff with standing in place of a plaintiff who lacks standing. (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 243 [trial court may consider leave to amend to substitute new plaintiff for named plaintiffs who lost standing as result of Proposition 64]; Klopstock v. Superior Court (1941) 17 Cal.2d 13, 21 [administratrix of deceased shareholder’s estate substituted as plaintiff in corporate derivative action]; Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal.App.4th 497, 507 [bankruptcy trustee substituted for bankrupt debtors]; Mayo v. White (1986) 178 Cal.App.3d 1083, 1091–1092 [heirs at law could be substituted for personal representative in wrongful death action and personal injury action].) An amended pleading will relate back if the amended pleading substitutes a plaintiff who has exhausted administrative remedies for a plaintiff who has not. (Garrison v. Board of Directors, supra, 36 Cal.App.4th 1670, 1678 [CEQA petitioner who failed to exhaust administrative remedies could file amended petition in capacity as member and representative of after-formed organization].)
However, as Caltrans notes, an amendment naming a new plaintiff will not be allowed “if the new party seeks to enforce an independent right or to impose greater liability against the defendants.” (San Diego Gas & Electric Co. v. Superior Court of San Diego County (2007) 146 Cal.App.4th 1545, 1550.) Caltrans discusses as examples of this rule the cases of Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 533 [after statute of limitations had run, husband, asserting a new cause of action for loss of consortium, could not be added to wife’s personal injury action]; Dominguez v. City of Alhambra (1981) 118 Cal.App.3d 237, 243 [wife not allowed to add to wrongful death suit a new cause of action in her capacity as administratrix of husband’s estate for damages suffered by husband prior to death]; and Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468, 1471 [uninjured driver brought personal injury action, injured passenger could not be substituted as plaintiff after statute of limitations where complaint made no mention of a passenger]. The significant point in each of these cases is that the amended pleading asserted a separate or different injury from the original, timely pleading, precluding application of the relation-back doctrine.
These cases are consistent with the viewthat the nature of the action originally pled determines whether the amended pleading relates back to an original pleading or asserts an independent right. (See San Diego Gas & Electric Co. v. Superior Court of San Diego County, supra, 146 Cal.App.4th at pp. 1550-1553.) While the independent status of the new party may support a finding that the amended pleading asserts an independent right, we do not agree with the argument of Caltrans that it is the independent status of the party in these cases that precluded relation back. The fact that Ventures and Developers are separate business entities does not necessarily dictate that all claims asserted by them represent their independent rights.
The court in Garrison, supra, 36 Cal.App.4th 1670, bluntly rejected as erroneous the trial court’s reasoning that “the relation-back doctrine did not apply because Coalition [the proposed new association petitioner] was an entirely separate legal entity with separate legal rights.” (Id. at p. 1678.)
Nor do we agree with Caltrans that Garrison, supra, 36 Cal.App.4th 1670, and the cases it relied upon, demonstrate a limitation of the relation-back doctrine to situations where the new plaintiff was all along the real party in interest in the action or where the plaintiff has some legal relationship to the initial plaintiff and the cause of action (such as in Garrison between a person suing in his individual capacity and that person suing as a member and representative of an environmental association). While relation back is certainly appropriate in these situations, we do not read these cases as limiting the doctrine to such situations. To do so would change the focus of the analysis away from the nature of the allegations against the defendant contrary to the principles illustrated by the cases we have discussed.
Indeed, such a rule would appear to be inconsistent with recent California Supreme Court authority. In Branick v. Downey Savings & Loan Assn., supra, 39 Cal.4th 235, the California Supreme Court concluded Proposition 64, which limits private enforcement of the unfair competition and false advertising laws to persons “who [have] suffered injury in fact and [have] lost money or property” (Bus. & Prof. Code, §§ 17204, 17535), did not forbid amendment of complaints to substitute new plaintiffs for named plaintiffs who lost standing as a result of the proposition. (39 Cal.4th at pp. 241-242.) Although the Supreme Court declined to render an advisory opinion on a motion for leave to amend not yet filed by the plaintiffs, it did address and reject certain categorical arguments made by the defendant. One of those arguments is particularly relevant here.
Specifically, the Supreme Court rejected defendants’ argument that amendment should not be permitted to substitute a new plaintiff because the failure to name the new plaintiff in the original complaint was not a mistake. (Branick v. Downey Savings & Loan Assn., supra, 39 Cal.4that p. 243.) The Supreme Court noted cases have liberally allowed substitution of plaintiffs where the original plaintiffs lack standing or have lost standing. According to the Supreme Court “[t]he important limitation” to such rule is the new plaintiff “may not ‘state facts which give rise to a wholly distinct and different legal obligation against the defendant.’ (Klopstock v. Superior Court, supra, 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.’” (Id. at pp. 243-244.) The Supreme Court then stated, “[s]imilar principles govern the question whether an amendment relates back, for purposes of the statute of limitations, to the date on which the original complaint was filed. ‘The relation-back doctrine requires that the 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.’” (Id. at p. 244, citing Norgart v. Upjohn Co., supra, 21 Cal.3d at pp. 408-409.) These statements by the Supreme Court give no hint that relation-back depends on whether the proposed plaintiff is a legally separate entity from the original plaintiff or whether the proposed plaintiff has some formal legal relationship to the original plaintiff and cause of action. The determining point remains the nature of the allegations originally alleged against the defendant.
The requirements of the relation-back doctrine are met here. The second amended petition challenges the same project for the construction of a replacement office building for Caltrans. The second amended petition alleges identical violations of CEQA by Caltrans and DGS. Both Ventures and Developers are alleged to own property in close proximity to the proposed project site, which is alleged to be adversely affected by the project. Unlike, for example, a contract right that runs in favor of a specific individual or business entity, a cause of action under CEQA seeks to enforce the important public CEQA purpose of requiring the public agency to adequately “explain the reasons for its actions to afford the public and other agencies a meaningful opportunity to participate in the environmental review process, and to hold it accountable for its actions.” (City of Arcadia v. State Water Resources Control Bd. (2006) 135 Cal.App.4th 1392, 1426.) Thus, Developers was not asserting an independent right by its participation in the litigation initiated by Ventures. The addition of Developers to the amended petitions made certain there was a petitioner in the litigation who had clearly exhausted its administrative remedies so that the merits of the petition could be reached. Like the court in Garrison, we conclude amendment was appropriate to add Developers to the CEQA action even though the statute of limitations had expired by that point. As a matter of law, the second amended petition related back to filing of the original petition.
II.
Developers Has Not Shown An Abuse Of Discretion In The Trial Court’s Denial Of Its Request For Leave To Amend
Developers contends the trial court abused its discretion in denying its request for leave to amend the petition to add an after-formed organization under Public Resources Code section 21177, subdivision (c) (section 21177(c)). Developers contends members of the proposed after-formed organization included Developers, Ventures, Peter and Lanza. Developers asserts members of the proposed organization objected to the subject project and certification of the EIR and that the substance of the allegations of the petition would have remained unchanged. Developers contends the proposed association complies with all the requirements of section 21177(c).
Respondent contends the trial court did not abuse its discretion in denying leave to amend to add a “conjectured” organization formed after the statute of limitations had expired. Respondent contends policy concerns support the trial court’s exercise of its discretion.
Code of Civil Procedure section 472a, subdivision (c), provides in pertinent part: “When a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just.” Whether to grant leave to amend in this situation is entrusted to the sound discretion of the trial court and on appeal we only consider whether the trial court abused its discretion. (CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1538.) The burden is on the appellant to show a reasonable possibility of curing a defect. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
A review of the record reveals Developers requested leave to amend in order to name an after-formed organization, pursuant to section 21177(c), at the hearing on Caltrans’s demurrer to the second amended petition and complaint. The trial court denied the request. The record reveals nothing else. We have no way to confirm any of the factual assertions of Developers. The request was not made by a written motion supported by any declarations regarding the formation or membership of the organization. Developers never submitted a proposed third amended petition and complaint. Nor is there a reporter’s transcript of the hearing on Caltrans’ demurrer so that we can review what oral representations were made at the hearing regarding the organization or the request for leave to amend. The record on appeal contains nothing more than a bare request and its denial.
A judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to affirmatively demonstrate error with an adequate record. (Ibid.; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003.) On this record, we cannot say the trial court abused its discretion in denying Developers’s request for leave to amend.
DISPOSITION
The judgment is reversed and the trial court is directed to enter a new order overruling Caltrans’s demurrer to the second amended petition for writ of mandate and complaint. Developers shall recover their costs on appeal. (Cal. Rules of Court, rule 8.276.)
We concur: SIMS, Acting P.J., RAYE, J.