Pleadings and Amendments

Question 1

Fuller v. Tucker

Answer 1

During bladder surgery, a patient sustained a significant nerve injury, which eventually paralyzed her right leg. She brought a medical malpractice action against various defendants, but the complaint did not name the anesthesiologist. After the statute of limitations had expired, plaintiff filed an amendment naming the anesthesiologist.

Trial Court said that she did do enough investigation to find out who the anesthesiologist was, but the Court of Appeals said that this was not relevant when considering if an AMENDMENT was timely filed (only an initial complaint)

CCP 474:
○ Allows a plaintiff in good faith to delay suing particular persons as named defendants until P has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.”

In order for Dr. Tucker to successfully argue that the Doe amendment was untimely, he had to prove that even if Fuller knew his identity, Fuller also knew facts giving rise to a cause of action against Dr. Tucker.

However, she was ignorant as to how her injury came about.

Question 2

Nogart v. Upjohn

Answer 2

Woman who suffered from depression takes a drug manufactured by D and commits suicide because of side effects of the drug. Her father sues 6 years later. Wrongful death actions carry a 1 year statute of limitations.

Here, during deposition, the father said he suspected his daughter was wronged by the husband or doctor. Plaintiff only needs to suspect any kind of wrongdoing (policy toward encouraging early filing) to start the clock.

Question 3

When does the Statute of Limitations begin?

Answer 3

Statute of limitations starts running when all of the elements of the cause of action occur.
Exception: discovery rule – accrual is postponed until plaintiff discovers or has reason to discovery causes of action. Discover means suspects a factual basis (that someone did a wrong).

HOWEVER: Fraudulent concealment
Defendant’s fraud in concealing the cause of action tolls the statute of limitations until plaintiff discovers or should have discovered the cause of action.

Question 4

How can the Statute of Limitations be used as a defense?

Answer 4

• Motion for Summary Judgement
• General demurrer
• Affirmative Defense

Question 5

What is the “Motion Back Doctrine”?

Answer 5

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

Question 6

Sham Pleading Doctrine

Answer 6

P may not avoid attacks raised in the demurrer by filing an amended complaint that changes or omits the allegations in the original complaint (without a satisfactory explanation)

Question 7

Types of Amendments

Answer 7

Adding or striking a name of a party,
Adding a cause of action
Correcting a mistaken name,
Correcting a mistake,

Question 8

Suing unknown Defendants

Answer 8

CCP § 583.210(a): timing
i. After filing, plaintiff has 3 years to discover doe defendant’s identity

CCP 474: fictitious names
i. If P doesn’t know defendant’s identity and/or how defendant is connected to plaintiff’s injury, then plaintiff is allowed to sue them as a doe

Doe Doctrine: 3 years to name doe
- Knowledge standard: what was actually known at the time the lawsuit was filed (NO duty to investigate)
Doctrine of less particularity kicks in: conclusory pleading

Question 9

Procedure for Filing Amendments

Answer 9

Parties should always seek Leave of Court for amendments.

If you file an amended complaint BEFORE the defendant answers, you do not need permission from court (just need to serve defendant)

If the responsive pleading has been filed, parties can agree for party to amend or party can ask the court.

Question 10

What is an Amendment?

Answer 10

An amendment is a change to a PLEADING (more inclusive than “complaint” or “claim”)