Filed 8/26/20 Osuna v. Paragon Systems CA2/8
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                     DIVISION EIGHT


DANIEL OSUNA,                                                    B296748

         Plaintiff and Appellant,                               (Los Angeles County
                                                                Super. Ct. No. BC706399)
         v.

PARAGON SYSTEMS, INC.,

         Defendant and Respondent.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Marc D. Gross, Judge. Reversed and remanded
with directions.
      Law Offices of Mauro Fiore, Jr., Mauro Fiore, Jr., and
Gilbert Perez, III for Plaintiff and Appellant.
      Tyson & Mendes, David M. Frishman, Po S. Waghalter,
Carlos E. MacManus, and Susan A. Gruskin for Defendant and
Respondent.
                _____________________________
       Plaintiff Daniel Osuna sued the Social Security
Administration for negligence and violation of civil rights in
federal court, and he added Paragon Systems, Inc. (Paragon) as a
defendant in an amended pleading, in place of the fictitiously
named “DOE Security Company” in the original complaint. The
federal court dismissed his civil rights claim with prejudice, and
dismissed his negligence claim without prejudice so he could file
the negligence claim in state court. After plaintiff filed this
lawsuit in state court, Paragon demurred, contending this action
was barred by the statute of limitations because the relation-back
doctrine did not apply. The trial court sustained Paragon’s
demurrer without leave to amend. We reverse and remand with
directions.
        FACTUAL AND PROCEDURAL BACKGROUND
       On December 8, 2017, plaintiff sued the Social Security
Administration in federal court for negligence and violation of
civil rights under title 42 United States Code section 1983.
Plaintiff alleged that on December 11, 2015, he was injured when
an employee or agent of the Social Security Administration
forcibly removed him from its offices without just cause. Plaintiff
also sued unnamed Doe defendants. The caption of his complaint
named as defendants, in addition to the Social Security
Administration, “DOE Security Company,” “Doe Security Guard,”
and “Does 1-10.” The complaint alleged that “DOE Security
Company was at all times herein relevant a private company
contractor of the Social Security Administration, form of entity is
unknown.” Plaintiff named Doe Security Company as a
defendant in the heading for each claim and, in each claim,
alleged Doe Security Company intentionally or negligently
injured him and violated his civil rights.




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      Plaintiff filed a first amended complaint on January 3,
2018, substituting Paragon for the previously named “DOE
Security Company.” The first amended complaint was otherwise
nearly identical to the original complaint.
      On March 19, 2018, Paragon moved to dismiss the first
amended complaint, arguing that a civil rights claim cannot be
stated against a federal contractor, and that the state negligence
claim was barred by the two-year statute of limitations applicable
to negligence claims under California law.
      On April 26, 2018, the federal court issued a minute order,
proposing to grant the dismissal motion in part, to dismiss
plaintiff’s civil rights claim, and asking plaintiff to make an offer
of proof addressing whether the federal court should exercise
supplemental jurisdiction over plaintiff’s state law negligence
claim. Concerning the civil rights claim, the court noted that
plaintiff’s opposition to the dismissal motion requested leave to
state additional federal claims against Paragon. The court
concluded “ ‘an opposition brief is not the appropriate vehicle for
seeking leave to amend a complaint to add claims beyond those
challenged in the motion to dismiss. [Citations.] The Court
denies Plaintiff[’]s request to add new claims.’ ” (We note that no
party requested that the trial court take judicial notice of
plaintiff’s opposition to the dismissal motion.)
      On May 3, 2018, the federal court dismissed plaintiff’s civil
rights claim against Paragon with prejudice. The court declined
to exercise supplemental jurisdiction over the negligence claim
and dismissed it pursuant to title 28 United States Code
section 1367(d) (which tolls the limitations period to file
dismissed claims in state court for an additional 30 days) without
deciding the merits of Paragon’s statute of limitations argument.




                                 3
      On May 16, 2018, plaintiff filed this action against
Paragon, stating causes of action for negligence and intentional
tort. On June 15, 2018, before any responsive pleading was filed,
plaintiff filed a first amended complaint, alleging that on
December 11, 2015, while plaintiff attended an appointment at
the Social Security Administration, he was assaulted, battered
and suffered the use of excessive force upon him by a security
guard employed by Paragon.
      Paragon demurred, arguing that both causes of action were
time-barred by California’s two-year statute of limitations
applicable to tort claims. Paragon argued it was not named as a
defendant in the federal case until January 2018, after the two-
year statute of limitations had run. Paragon also argued that the
intentional tort cause of action was time-barred because it was
not alleged in the federal complaint, and plaintiff did not seek
leave of the federal court to add an intentional tort claim.
      In opposition, plaintiff argued that his negligence cause of
action related back to the original filing of the federal complaint
pursuant to California Code of Civil Procedure section 474, as
Paragon was substituted for a fictitiously named defendant in the
original complaint. The original federal complaint was filed on
December 8, 2017, within two years of the injury allegedly
sustained on December 11, 2015. The opposition was silent about
the intentional tort cause of action.
      The trial court sustained the demurrer without leave to
amend, mistakenly finding Paragon was added as a new
defendant in the amended federal complaint filed on January 3,
2018, shortly after the limitations period expired, and was not
substituted for a fictitiously named defendant. The trial court
also sustained the demurrer to the intentional tort cause of action




                                4
because plaintiff had not opposed the demurrer to that cause of
action. The court later entered a judgment of dismissal, and this
timely appeal followed.
                            DISCUSSION
      Our review of the sustaining of a demurrer without leave to
amend is de novo. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
1.    Forfeiture and Adequacy of the Record
      Paragon contends plaintiff forfeited any claim of error as to
the intentional tort cause of action by failing to address it in his
opposition to the demurrer. We think not. On appeal, a plaintiff
may argue the trial court abused its discretion in sustaining a
demurrer without leave to amend, even though plaintiff did not
request leave to amend in the trial court. (Code Civ. Proc.,
§ 472a, subd. (a).) Since a plaintiff who fails to request leave to
amend does not forfeit the contention the trial court abused its
discretion, neither does a plaintiff who fails to oppose the
demurrer forfeit the contention. An appellate court may consider
new theories on appeal that present a pure question of law.
(B & P Dev. Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949,
959 [“An appellate court may also consider new theories on
appeal from the sustaining of a demurrer to challenge or justify
the ruling. . . . A demurrer is directed to the face of a
complaint . . . and it raises only questions of law. . . . Thus an
appellant challenging the sustaining of a general demurrer may
change his or her theory on appeal . . . , and an appellate court
can affirm or reverse the ruling on new grounds. (Citations
omitted.)”].)
      Paragon also contends the appellate record is inadequate
because it does not include plaintiff’s opposition to Paragon’s
motion to dismiss, or Paragon’s reply, filed in federal court.




                                 5
These federal filings were not part of the record below.
Therefore, there was no reason to include them in the record on
appeal.
2.     The Amendment Naming Paragon as a Defendant
       Relates Back to the Filing of the Original Federal
       Complaint.
       The parties agree that California’s two-year statute of
limitations applies to plaintiff’s causes of action for negligence
and intentional tort, and the claims would be timely if they relate
back to the date of filing the original federal complaint. (Code
Civ. Proc., § 335.1 [two-year limitations period]; see also
Guaranty Trust Co. v. York (1945) 326 U.S. 99, 100-101 [federal
courts generally apply state statute of limitations].) The parties
also agree we must consider rule 15(c) of the Federal Rules of
Civil Procedure in deciding whether the federal first amended
complaint adding Paragon as a defendant relates back to the
original complaint. (See Fed. Rules Civ. Proc., rule 15(c),
28 U.S.C.)
       a.    Federal Rules of Civil Procedure, rule 15(c)
             (28 U.S.C.)
       As a general rule, an amended complaint that adds a new
defendant does not relate back to the date of filing the original
complaint, and the statute of limitations is applied as of the date
the amended complaint is filed. (Woo v. Superior Court (1999)
75 Cal.App.4th 169, 176 (Woo); see also Miguel v. Country
Funding Corp. (9th Cir. 2002) 309 F.3d 1161, 1165.) Rule 15(c) of
the Federal Rules of Civil Procedure allows an amended pleading
to relate back to the time of the original filing in certain
circumstances.




                                 6
       Under rule 15(c)(1)(A) of the Federal Rules of Civil
Procedure an amendment to a pleading relates back to the date of
the original pleading when “the law that provides the applicable
statute of limitations allows relation back.” (Ibid.)
Rule 15(c)(1)(C) provides an amendment that “changes the party
or the naming of the party against whom a claim is asserted”
relates back if the claim arises out of the conduct, transaction, or
occurrence set out in the original pleading (rule 15(c)(1)(B)), and
“if within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by
amendment: [¶] (i) received such notice of the action that it will
not be prejudiced in defending on the merits; and [¶] (ii) knew or
should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s
identity.”
       Rule 15(c) of the Federal Rules of Civil Procedure was not
intended to supplant state relation-back law. “Generally, the
applicable limitations law will be state law. If federal jurisdiction
is based on the citizenship of the parties, the primary reference is
the law of the state in which the district court sits. Whatever
may be the controlling body of limitations law, if that law affords
a more forgiving principle of relation back than the one provided
[by rule 15(c)], it should be available to save the claim.” (Butler v.
Nat’l Cmty. Renaissance of Cal. (9th Cir. 2014) 766 F.3d 1191,
1200.) “[I]f an amendment relates back under the state law that
provides the applicable statute of limitations, that amendment
relates back under Rule 15(c)(1) even if the amendment would
not otherwise relate back under the federal rules.” (Ibid.)
Therefore, the amendment adding Paragon as a defendant will
relate back to the original complaint if the amendment was




                                  7
authorized under either California law (as provided for in rule
15(c)(1)(A)) or rule 15(c)(1)(C). (Butler, at p. 1201.)1
       b.    The Doe amendment was authorized by
             California Code of Civil Procedure section 474.
       California Code of Civil Procedure section 474 provides that
“[w]hen the plaintiff is ignorant of the name of a defendant, he
must state that fact in the complaint . . . and such defendant may
be designated in any pleading or proceeding by any name, and
when his true name is discovered, the pleading or proceeding
must be amended accordingly. . . .” “[T]he amended complaint
substituting a new defendant for a fictitious Doe defendant filed
after the statute of limitations has expired is deemed filed as of
the date the original complaint was filed.” (Woo, supra,
75 Cal.App.4th at p. 176.)
       Code of Civil Procedure section 474 applies if the plaintiff
was “genuinely ignorant” of the defendant’s identity at the time
the original complaint was filed. (Woo, supra, 75 Cal.App.4th at
p. 177.) “[U]nreasonable delay in filing an amended pleading
after discovering a Doe defendant’s identity may bar a plaintiff
from using the fictitious name device. To preclude relation back

1      Paragon argues that amendments to pleadings are matters
of procedural law, and therefore, federal procedural rules govern
rather than the state’s law to determine whether an amendment
relates back. (See, e.g., Craig v. United States (9th Cir. 1969)
413 F.2d 854.) Paragon’s cited authorities predate the 1991
amendments to rule 15(c), which were intended to ensure that
the more forgiving limitations law, whether that be state or
federal law, would be applied, and expressly provide that a
pleading relates back to the date of the original pleading when
“the law that provides the applicable statute of limitations allows
relation back.” (See Fed. Rules Civ. Proc., rule 15(c)(1)(A);
Butler, supra, 766 F.3d at pp. 1199-1201.)


                                 8
on this basis, however, the opposing party must show the
plaintiff was dilatory and that the defendant was prejudiced by
the delay.” (Winding Creek v. McGlashan (1996) 44 Cal.App.4th
933, 942 (Winding Creek).)
      Here, the original federal complaint alleged that “DOE
Security Company” was responsible for plaintiff’s injuries, and
that plaintiff was unaware of the identities of the fictitiously
named defendants. In the first amended complaint, plaintiff
substituted Paragon for the “DOE Security Company”
allegations. The amendment was filed less than one month after
the original complaint was filed, and before the complaint was
ever served on any party. (See Fed. Rules Civ. Proc., rule 15(a)(1)
[a party may amend its complaint once as a matter of right before
a responsive pleading is filed].) Under Code of Civil Procedure
section 474, the amended pleading is deemed filed as of the date
the original complaint was filed.
      Paragon contends the attempt to substitute it for a Doe
defendant was “faulty” because plaintiff did not specifically allege
in the amended complaint that Paragon was being substituted for
one of the 10 Doe defendants, and did allege that plaintiff was
unaware of the identities of “DOES 1 through 10.” This peculiar
argument ignores that plaintiff did not substitute Paragon for
one of the 10 Doe defendants; plaintiff substituted Paragon for
“DOE Security Company.” The amended complaint substituted
Paragon in the caption, the claim headings, and the substantive
allegations for “DOE Security Company.”
      Paragon also contends plaintiff cannot avail himself of the
Doe amendment procedure because he did not adequately
investigate Paragon’s identity before filing the complaint. Code
of Civil Procedure section 474 requires a plaintiff to allege he was




                                 9
ignorant of the identity of a Doe defendant and does not require a
plaintiff to recite the facts of its investigation to discover the true
identity of a fictitiously named Doe defendant. The adequacy of
plaintiff’s investigation is a factual question wholly beyond the
scope of a demurrer. (Blank v. Kirwan, supra, 39 Cal.3d at
p. 318.)
      Lastly, Paragon argues it was prejudiced by the delay
without explaining how it was prejudiced. It is hard to imagine
how a delay of less than a month, before the original complaint
had even been served, could prejudice Paragon.2
      Because we have decided the amendment relates back
under Code of Civil Procedure section 474, we need not decide
whether it also relates back under Federal Rules of Civil
Procedure, rule 15(c)(1)(C). (See Lindley v. Gen. Elec. Co. (9th
Cir. 1986) 780 F.2d 797, 799 [applying § 474 instead of
rule 15(c)(1)(C) to Doe amendments].)
3.    The Intentional Tort Claim Relates Back to the
      Filing of the Original Federal Complaint.
      A cause of action first asserted in state court may properly
be deemed to relate back to claims earlier made in federal court if
they arise from the same facts. (See, e.g., Dudley v. Department
of Transportation (2001) 90 Cal.App.4th 255, 266.)
      An amended complaint relates back to the original
complaint if it rests on the same general set of facts as the
original complaint and refers to the same accident and injuries as


2     Paragon argues that plaintiff has waived any right to
contest the existence of prejudice by failing to raise the issue in
his opening brief. The argument has no merit. It is not plaintiff’s
burden to disprove prejudice, but Paragon’s burden to establish
it. (Winding Creek, supra, 44 Cal.App.4th at p. 942.)


                                  10
the original complaint. (Barrington v. A. H. Robins Co. (1985)
39 Cal.3d 146, 151.) “In determining whether the amended
complaint alleges facts that are sufficiently similar to those
alleged in the original complaint, the critical inquiry is whether
the defendant had adequate notice of the claim based on the
original pleading.” (Pointe San Diego Residential Community,
L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011)
195 Cal.App.4th 265, 277.)
      Here, the intentional tort cause of action arises from the
same December 11, 2015 incident at the Social Security
Administration offices that was alleged in the federal complaint.
The intentional tort cause of action is nearly identical to the
claims stated in the federal case, that plaintiff was intentionally
assaulted and battered by the use of excessive force.
      Paragon contends plaintiff’s intentional tort cause of action
cannot relate back to the filing of the federal complaint because
plaintiff never asked the federal court for leave to amend to add
an intentional tort claim. Paragon argues the Federal Rules of
Civil Procedure require a party to seek leave to amend a federal
complaint after an adversary has responded. Paragon cites no
authority to support or explain why Paragon believes that federal
rule applies to this case in the California courts after dismissal of
the federal case. The notion that plaintiff was required to seek
leave to amend in the federal court makes no sense; the federal
court declined to exercise supplemental jurisdiction over
plaintiff’s negligence claim, so it would have been pointless for
plaintiff to ask the federal court for leave to add another state
law claim.
      At oral argument, Paragon contends that the federal court
expressly denied plaintiff leave to amend to state any new claims




                                 11
by its April 26, 2018 order. While it appears the court denied
plaintiff leave to add any new federal claims, the order is silent
about state law claims. And in any event, we cannot possibly
evaluate the scope of this ruling without the benefit of plaintiff’s
opposition to the federal dismissal motion, which Paragon never
provided to the lower court in support of its demurrer.
       Paragon next contends plaintiff was required to seek leave
of the state court to allege an intentional tort, again without
citation to supporting authority. That would be tantamount to
requiring plaintiff to obtain a prefiling order to assert an
intentional tort in state court. The law imposes no such
requirement.
       Paragon also contends that including an intentional tort
cause of action in this case violates the federal court’s dismissal
order, which stated plaintiff had 30 days in which to file his
negligence claim in state court but did not authorize plaintiff to
add an intentional tort claim. The federal court’s dismissal order
cited the tolling provision of title 28 United States Code
section 1367(d), which provides that “[t]he period of limitations
for any claim asserted under [the federal court’s supplemental
jurisdiction] shall be tolled while the claim is pending and for a
period of 30 days after it is dismissed unless State law provides
for a longer tolling period.” The federal court’s dismissal order
expressly contemplated that plaintiff could sue in state court, and
the federal court expressed no view about the causes of action
plaintiff might allege in state court.
       Lastly, defendant argues that title 28 United States Code
section 1367(d) did not toll the statute of limitations for any
cause of action other than the negligence cause of action.
Section 1367 is not dispositive of the tolling issue, and therefore,




                                12
we are not persuaded that plaintiff’s intentional tort claim is
time-barred. (Mojica v. 4311 Wilshire, LLC (2005) 131
Cal.App.4th 1069, 1073 [equitable tolling applies while plaintiff
seeks remedies in another forum].)
                          DISPOSITION
      The judgment is reversed and remanded with directions
that the trial court vacate its order sustaining the demurrer
without leave to amend, and enter a new order overruling the
demurrer. Appellant may recover his costs on appeal.



                        GRIMES, Acting P. J.

      WE CONCUR:



                        STRATTON, J.



                        WILEY, J.




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