Filed 1/28/14 County of San Diego v. Pointe Communities of San Diego CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



COUNTY OF SAN DIEGO,                                                D063074

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2009-00069442-CU-BC-EC)
POINTE COMMUNITIES OF SAN DIEGO,
INC., et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Orange County, Luis A.

Rodriguez, Judge. Affirmed.

         Thomas E. Montgomery, County Counsel, and Thomas Deák, Senior Deputy

County Counsel, for Plaintiff and Appellant.

         George Edward Hurley; McKenna Long & Aldridge, Charles A. Bird and

Michelle A. Herrera for Defendants and Respondents.

         In 1992, as one of the conditions for approving a Final Map for a real estate

development, County of San Diego (County) entered into an agreement with Pointe

Communities of San Diego, Inc. (PCSD) and Pointe San Diego Residential Community,
L.P. (Pointe Residential) requiring PCSD and Point Residential (together Pointe) to

construct specified street improvements (the street improvement agreement), and also

entered into two other agreements requiring Pointe to build certain water and sewer

improvements (collectively the Subdivision Improvement Agreements). The Subdivision

Improvement Agreements required completion of the improvements within 730 days of

County's approval of the Final Map, but permitted County's Board of Supervisors (Board)

to extend the time for completing the required improvements.

      During the next 11 years, County granted Pointe a series of extensions until

January 2005 to complete the improvements required by the Subdivision Improvement

Agreements. In April 2005 County's Department of Public Works (DPW) informed

Pointe the Subdivision Improvement Agreements had expired, Pointe was in default, and

DPW was unable at that time to recommend the Board grant further extensions.

      In September 2009, more than four years after the Subdivision Improvement

Agreements expired and County declared Pointe in default, County filed its complaint

alleging Pointe breached its obligations under the Subdivision Improvement Agreements

and seeking damages and declaratory relief. Pointe moved for summary judgment,

asserting County's claims were time-barred by the four-year statute of limitations

applicable to claims for breach of written contracts. County opposed the motion,

asserting there were triable issues of fact whether a later 2002 agreement between County

and Pointe (the Tri-Party Agreement) and a 2006 amendment to the Tri-Party Agreement

(the Amended Agreement) were intended to extend the time for performing the

Subdivision Improvement Agreements. County argued, because the 2009 complaint was

                                            2
filed within four years of the 2006 Amended Agreement, County's action was not time-

barred. County alternatively argued, to the extent the Tri-Party Agreement and Amended

Agreement were collateral to (and did not extend the time for performing) the

Subdivision Improvement Agreements, County should be granted leave to amend to

assert claims based on breach of the Tri-Party Agreement and Amended Agreement. The

trial court rejected County's claim that the Tri-Party Agreement extended the time for

performing the Subdivision Improvement Agreements, and found County's claims as

pleaded were therefore time-barred. The court also rejected County's request for leave to

amend, and entered judgment on the complaint in favor of Pointe. This appeal by County

followed.

                                            I

                                 FACTUAL CONTEXT

      A. The Subdivision Improvement Agreements

      In 1990, the Board approved a Specific Plan Amendment (SPA 88-001) for a

mixed use development in Spring Valley, along with a Tentative Map (TM-4828-1) and a

series of public improvements described on TM-4828-1. The approval included a

condition that, before a Final Map could be approved, Pointe was required to construct

significant road improvements, including improvements to a section of Jamacha

Boulevard from Huron Road to Spring Glen Lane to provide an access road to the future

State Route 54 freeway.

      In early 1992 the Board approved the Final Map and Pointe entered into the

Subdivision Improvement Agreements obligating Pointe to perform the street, water and

                                            3
sewer improvements required by TM-4828-1, and requiring bonds to secure Pointe's

performance of its improvement obligations.1 Under the Subdivision Improvement

Agreements, Pointe was required to complete the specified improvements within 730

days of the Board's approval of Final Map 4828-1. However, the Subdivision

Improvement Agreements provided that, if necessary, the Board could grant extensions

(either unilaterally or on Pointe's request) to complete the improvements.

       Between 1992 and 1994, Pointe completed some of the improvements. In 1994,

County granted Pointe a two-year extension of time to complete the improvements, and

in 1999 the Board approved another extension for completion of the improvements for

TM-4828-1. In 2003, the Board approved another extension for completion of the

improvements for TM-4828-1; under this extension, Pointe's time to complete the

improvements required by the Subdivision Improvement Agreements was extended to

January 29, 2005.

       On April 15, 2005, County wrote a letter to Pointe with a reference line stating

"Expiration of Improvement Agreement for County of San Diego Tract TM-4828-1,

Final Map No. 12924." That letter stated, among other things, that "[a]fter reviewing the

file for the above noted project, the Department of Public Works (DPW) has identified

that this project's Improvement Agreement is in default due to the original agreements




1     The street improvement agreement covering "Streets, Drainage and Monuments
Only" was secured by a bond issued by Lumbermens Mutual Casualty Company, and the
agreements covering "Water Only" and "Sewer Only" were secured by bonds issued by
American Motorists Insurance Company.
                                             4
expiring on January 29, 2005. DPW is unable to recommend an extension to the Board

of Supervisors at this time."2

       B. The Tri-Party Agreement

       In early 2000, three years before the Board approved the last extension for Pointe

to complete the improvements required by the Subdivision Improvement Agreements,

County began meeting with representatives of Pointe (together with another developer,

Atlas Homes) to discuss ways to improve Jamacha Boulevard and fund those

improvements. In 2001 County made a demand against the bonding company based on

Pointe's failure to widen Jamacha Boulevard as required by the Subdivision Improvement

Agreements. A few months later, County, Pointe, and American Motorists Insurance

Company (Surety) entered into the Tri-Party agreement.

       The Tri-Party Agreement contained a series of recitations that described the

interests of both Pointe and Surety in agreeing to the obligations it imposed. The Tri-

Party Agreement recited that Pointe had two proposed apartment projects before County

for approval, "which approval cannot be given until construction of the road



2       The letter went on to list four "items that need to be resolved before DPW can
consider recommending an extension," including that (1) the current owners of the
property appeared to be different from the Pointe entities that were parties to the
Improvement Agreement, (2) the current bonds were outdated both as to ownership and
because changed construction costs required revised estimates and bond amounts, (3) the
grading permit had expired five years earlier and needed to be renewed, and (4) there was
a discrepancy in the identity of the engineer on the work. Additionally, DPW asked for
additional information on the status of the project's compliance with current stormwater
requirements and on what " 'substantial progress' is being made to complete the
improvements required by the final map." DPW indicated this information would assist
it "in determining potentials for agreement extensions."
                                             5
improvements is assured for completion prior to occupancy of the apartments" and Pointe

was willing to construct those improvements prior to occupancy of these projects. As to

Surety, which agreed to undertake the obligation to provide financing for construction of

the road improvements required by the Tri-Party Agreement, the agreement recited that

Surety had issued a bond guaranteeing completion of road improvements required by

TM-4828-1, the improvements had not been constructed and a demand on the bond had

been made, and Surety was willing to finance the road improvements required by the Tri-

Party Agreement in exchange for a right to be reimbursed by Pointe from the four

properties then under Pointe's control that would be benefitted by the road

improvements.3 The Tri-Party Agreement provided Pointe would construct road

improvements to Jamacha Boulevard "as required by TM4828-1 in accordance with plans

to be resubmitted for approval by [the DPW]," and Surety would deposit with County


3      The Tri-Party Agreement also specified County would recommend, as a condition
to any Specific Plan Amendment or tentative map for a fifth property benefitting from
these road improvements (the Dictionary Hill-Panorama Ranch property), the fifth
property contribute its fair share of the costs as reimbursement to Surety. The Tri-Party
Agreement also required Pointe to reimburse Surety 8 percent of the total construction
costs when building permits were issued for phase I of Pointe's LakeView Apartment
project, another 7 percent when building permits were issued for phase II, another 11
percent when building permits were issued for Pointe's Mountaintop Condominium
project, and another 38 percent when building permits were issued for Pointe's
Commercial Complex. The Tri-Party Agreement also provided that, if Pointe acquired
the Dictionary Hill-Panorama Ranch property, Pointe would reimburse Surety the
remaining 36 percent of the total construction costs upon approval of a Specific Plan
Amendment or tentative map for that property, but if Pointe did not acquire the
Dictionary Hill-Panorama Ranch property, County would recommend (as a condition to
any Specific Plan Amendment or tentative map for that property) that a fee be imposed
on that property to pay its fair share of the construction costs that would then be
reimbursed to Surety.

                                            6
funds to pay for those improvements and be entitled to reimbursement from Pointe for

those outlays.4 County also required, as a condition to approval of Pointe's apartment

projects, that the road improvements to Jamacha Boulevard be completed before

occupancy permits would be issued, and specified it would not withhold approval of the

projects due to road conditions on Jamacha Boulevard but would withhold occupancy

permits until the road improvements were finished. The Tri-Party Agreement contained

no express references to the Subdivision Improvement Agreements and (apart from the

references to TM 4828-1 and to Surety's previously issued bond) contained no references

to any facts relating to Pointe's 1992 undertakings.

       In June 2002, DPW received Pointe's revised plans for the work to Jamacha

Boulevard contemplated by the Tri-Party Agreement. The revised plans (processed under

County Permit CG 4476) were deemed deficient in numerous respects and, after a

lengthy review process involving numerous changes to and iterations of the planned

work, Pointe's plans for the work to Jamacha Boulevard contemplated by the Tri-Party




4      The parties also agreed Surety's exposure on the bond it previously issued as
security for the 1992 "Streets, Drainage and Monuments Only" Improvement Agreement
would be reduced by all amounts deposited by Surety to finance the road improvements
covered by the Tri-Party Agreement. The parties also agreed Surety's bond issued for the
1992 "Streets, Drainage and Monuments Only" Improvement Agreement would "remain
in effect" except to the extent it was "reduced by sums deposited" by Surety to pay for
these road improvements. The parties also agreed any portion of the funds deposited by
Surety to finance these road improvements "determined to be attributable" to Surety's
Water Improvements Bond would reduce the penal sum of that bond, and also agreed
Surety would have "no obligation" with respect to any sewer improvements.
                                             7
Agreement were approved by County in August 2004.5 After approval of the plans

submitted under permit CG 4476, Pointe began working on the improvements covered

under CG 4476 and the Tri-Party Agreement.

       C. The 2006 Amendment to the Tri-Party Agreement

       In March 2006, nearly one year after DPW informed Pointe the Subdivision

Improvement Agreements had expired and Pointe was in default, Pointe wrote to County

to explore the possibility of amending the Tri-Party Agreement to find ways to fill a

funding gap for the improvements contemplated by the Tri-Party Agreement. To fill the

funding gap, which apparently arose because changes in the scope of work and delays

had increased the construction costs by preventing timely completion of the Jamacha

Boulevard improvements, County and Pointe in November 2006 entered into the

Amended Agreement concerning completion of the improvements contemplated by the

Tri-Party Agreement.

       The Amended Agreement recited that Pointe had three projects under

construction, and the intent of the parties had been to insure completion of Jamacha



5      The revised plans processed under CG 4476 called for road improvements to
Jamacha Boulevard that differed from the original plans for road improvements around
Jamacha Boulevard under the 1992 Subdivision Improvement Agreements. The original
plans for Jamacha Boulevard apparently contemplated Jamacha Boulevard would be
improved to serve as a frontage road for the planned State Route 54 extension. However,
by this time, the planned State Route 54 extension was still not funded with sufficient
rights of way to allow construction of the original improvements contemplated by the
1992 Subdivision Improvement Agreements, but traffic conditions on Jamacha Boulevard
had deteriorated to level F and necessitated that an emergency measure be implemented
to temporarily widen Jamacha Boulevard to four lanes until State Route 54 was put in
place. The plans processed under CG 4476 were to build this stop-gap road.
                                            8
Boulevard prior to occupancy of the residences, but circumstances beyond Pointe's

control "prevented completion of Jamacha [Boulevard] prior to the scheduled closing of

residential units, necessitating the release of occupancies[.]" The Amended Agreement

provided (1) Pointe would construct the road improvements "as required by TM4828-1

and [CG] 4476 in accordance with the plans approved by" DPW, (2) funding (in addition

to Surety's bond as contemplated by the Tri-Party Agreement) would be secured by

Pointe's agreement to deposit with County $5,952 per unit from the first units sold from

its projects "to secure the remaining, unfunded portion of Jamacha [Boulevard's]

construction costs to a maximum of $500,000[,]" (3) County agreed it would allow

certain occupancy permits to be "issued prior to substantial completion of Jamacha

[Boulevard,] including four working lanes, to the satisfaction of" DPW, and (4) Pointe

agreed it would seek "no further occupancy permits or enter into any sales agreements or

leases for the remainder of its property until the improvements to Jamacha Boulevard are

substantially completed, including four working lanes, to the satisfaction of" DPW."

      County issued the occupancy permits, Pointe sold units in its project, and Pointe

deposited approximately $260,000 with County from these sales. Pointe continued

working on the Jamacha Boulevard improvements and hoped to complete the

improvements by mid-March 2007. However, by April 2007, all work on the

improvements had stopped. Between December 2007 and September 2009

representatives of County, Pointe and Surety held numerous meetings and exchanged

correspondence regarding how to complete the required improvements. However, the



                                            9
parties were unable to resolve the dispute and County commenced this action against

Pointe on September 22, 2009.

       D. The Complaint and Cross-complaint

       County's complaint pleaded claims against Pointe alleging it had breached its

obligations under the Subdivision Improvement Agreements, which it defined as the 1992

agreements relating to street improvements, water improvements and sewer

improvements, and sought damages and declaratory relief. County's complaint contained

factual allegations pertaining to the Tri-Party Agreement and the Amended Agreement

but pleaded no separate claims for breach of those agreements.

       Pointe Residential cross-complained against County asserting County had

breached the Tri-Party Agreement and the Amended Agreement by not releasing funds

escrowed for the improvements required by those agreements, by unilaterally increasing

the scope and costs for those improvements, and by not seeking contribution from the

owner of the Dictionary Hill property.

       E. The Summary Judgment Motion

       Pointe moved for summary judgment, asserting County's causes of action were

time-barred by the four-year statute of limitations applicable to claims for breach of

written contracts. Pointe alleged the four-year statute of limitations under Code of Civil

Procedure section 337, subdivision (1), applied to actions on the Subdivision

Improvement Agreements, the Board did not extend Pointe's time to perform the

Subdivision Improvement Agreements beyond the January 29, 2005, expiration date on

those agreements, and therefore County's complaint was time-barred.

                                            10
      County did not dispute the applicable statute of limitations. However, it

contended summary judgment was improper because the parties intended to extend the

time for performing the obligations of the Subdivision Improvement Agreements when

they entered into the Tri-Party Agreement and the Amended Agreement, and the lawsuit

was timely because it was filed within four years of the date the Amended Agreement

was executed. County alternatively asserted the Tri-Party Agreement and the Amended

Agreement constituted independent contractual undertakings to construct the Jamacha

Boulevard improvements, and its complaint, when liberally construed, stated claims for

breach of the Tri-Party Agreement and the Amended Agreements. Even if it did not,

County should be granted to leave to amend the complaint to state claims for breach of

the Tri-Party Agreement and the Amended Agreement.6

      The court, after hearing oral argument, confirmed its tentative ruling and granted

the motion for summary judgment. It first noted the pleadings defined the boundaries of

the issues to be resolved on summary judgment, and a party cannot avoid summary

judgment either by presenting new and unpleaded issues in opposing a summary

judgment motion or by presenting extrinsic evidence raising issues of facts on issues

beyond those pleaded in the complaint. The court then concluded Pointe's evidence



6      County also asserted the Tri-Party Agreement and the Amended Agreement
constituted an "acknowledgement" of Pointe's obligations to perform the Subdivision
Improvement Agreements, and such acknowledgement began a new period of limitations
within which to sue on the Subdivision Improvement Agreements. The trial court
rejected this argument and, because County has not resurrected this argument on appeal,
we deem it abandoned. (Tiernan v. Trustees of Cal. State University & Colleges (1982)
33 Cal.3d 211, 216, fn. 4.)
                                           11
established (1) the complaint pleaded only claims based on the 1992 Subdivision

Improvement Agreements, (2) those agreements lapsed on January 29, 2005, and (3) by

April 15, 2005, County had decided not to grant further extensions of the Subdivision

Improvement Agreements and had determined Pointe was in default on those agreements.

The court concluded Pointe met its burden of showing the County's complaint was

required to be filed by January 29, 2009, and, because it was not filed until September

2009, Pointe met its burden of establishing County's claims were time-barred.

       The court rejected County's effort to raise triable issues of fact on whether the Tri-

Party Agreement and the Amended Agreement extended the time for performing the

obligations of the Subdivision Improvement Agreements. First, the court concluded that

claim was outside the scope of County's claims as pleaded, because the complaint did not

assert its causes of action were based on the Tri-Party Agreement or the Amended

Agreement. Moreover, the court noted neither the Tri-Party Agreement nor the Amended

Agreement purported to extend the time for performance of the obligations imposed by

the Subdivision Improvement Agreements.

       The court also rejected County's alternative assertion-- summary judgment was

improper because the complaint stated claims based on the independent contractual

undertakings embodied in the Tri-Party Agreement and the Amended Agreement--

because neither the breach of contract nor the declaratory relief causes of action were

based on breaches of the Tri-Party Agreement or the Amended Agreement. The court

noted the complaint, although referring to the Tri-Party Agreement and the Amended

Agreement, specifically alleged Pointe breached the Subdivision Improvement

                                             12
Agreements, which it defined to include the three 1992 agreements but not to encompass

either the Tri-Party Agreement or the Amended Agreement.

       At oral argument, the court also rejected County's request for leave to amend the

complaint to state claims based on breaches of the Tri-Party Agreement and the Amended

Agreement as untimely. The court granted the summary judgment motion, and entered

judgment on County's complaint in favor of PCSD and Pointe Residential and against

County. County timely filed its notice of appeal.7

       Pointe asserts (1) the appeal as to PCSD should be dismissed because no argument

of error was raised as to PCSD, and (2) the judgment as to Pointe Residential is not

appealable. The first argument is based on County's nomenclature in its opening brief on

appeal: County's opening brief defined the term "Pointe" to mean Pointe Residential (and

omitted inclusion of PCSD under the term "Pointe") and thereafter argued the judgment

in favor of Pointe should be reversed. However, County has filed a notice of errata

correcting this omission, and asserts that because all of its arguments applied equally to

both PCSD and Pointe Residential, and all of those arguments have been responded to on

the merits in the respondent's brief, no prejudice will result from permitting this

correction. We agree, and therefore deny Pointe's motion to strike County's errata.

Pointe also asserts the judgment as to Pointe Residential is interlocutory, and therefore is



7       County has filed a request that we judicially notice certain information, i.e., that
PCSD is a forfeited corporation. However, this plea in abatement was not interposed at
trial, and County has cited no pertinent authority explaining the relevance this
information might have to our evaluation of County's appeal. We deny the request for
judicial notice.
                                             13
not appealable, because its cross-complaint against County remains unresolved.

Although Pointe is correct as to the interlocutory nature of the appeal as to Pointe

Residential, this court has the power to treat a premature appeal as a writ petition (Olson

v. Cory (1983) 35 Cal.3d 390, 399-401), and Pointe Residential has affirmed it has no

objection to this court doing so here. The interests of judicial economy will be served by

resolving the issues raised both as to PCSD (in whose favor an appealable judgment was

entered) and Pointe Residential (in whose favor only a nonappealable interlocutory

judgment exists), because the issues raised are identical as to both PCSD's appealable

judgment and Pointe Residential's nonappealable judgment. We treat the appeal as to

Pointe Residential as a petition for writ of mandate rather than dismissing it. (G. E.

Hetrick & Associates, Inc. v. Summit Construction & Maintenance Co. (1992) 11

Cal.App.4th 318, 323-324.)

                                             II

                                   APPLICABLE LAW

       A. Standards for Summary Judgment

       When a defendant moves for summary judgment on statute of limitations grounds,

the defendant bears the initial burden of production to demonstrate that the limitations

period has expired. (Code Civ. Proc. § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield

Co. (2001) 25 Cal.4th 826, 850 [the "initial burden of production [requires the defendant]

to make a prima facie showing of the nonexistence of any triable issue of material fact"].)

"A prima facie showing is one that is sufficient to support the position of the party in

question." (Aguilar, at p. 851.) When the party moving for summary judgment carries

                                             14
his initial burden of production and makes a prima facie showing of the nonexistence of

any triable issue of material fact, "he causes a shift, and the opposing party is then

subjected to a burden of production of his own to make a prima facie showing of the

existence of a triable issue of material fact." (Id. at p. 850.)

       Importantly, as explained in County of Santa Clara v. Atlantic Richfield Co.

(2006) 137 Cal.App.4th 292, 332, " '[t]he burden of a defendant moving for summary

judgment only requires that he or she negate plaintiff's theories of liability as alleged in

the complaint. A "moving party need not '. . . refute liability on some theoretical

possibility not included in the pleadings.' [Citation.]" . . . " '[A] motion for summary

judgment must be directed to the issues raised by the pleadings. The [papers] filed in

response to a defendant's motion for summary judgment may not create issues outside the

pleadings and are not a substitute for an amendment to the pleadings.' " ' [Quoting

Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342,

second italics added by County of Santa Clara.]"

       "Appellate review of a ruling on a summary judgment or summary adjudication

motion is de novo." (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195,

210.) "While resolution of the statute of limitations issue is normally a question of fact,

where the uncontradicted facts established through discovery are susceptible of only one

legitimate inference, summary judgment is proper." (Jolly v. Eli Lilly & Co. (1988) 44

Cal.3d 1103, 1112.)




                                               15
                                             III

                                        ANALYSIS

       A. Summary Judgment on the Complaint Was Proper

       County apparently concedes its claims arising from Pointe's alleged breach of the

Subdivision Improvement Agreements would be barred by the expiration of the statute of

limitations, and therefore summary judgment would be proper, if those agreements lapsed

in January 2005. Pointe's showing below satisfied its initial burden of making a prima

facie showing that the Subdivision Improvement Agreements did lapse in January 2005,

because (1) they provided for the mode by which those agreements could be extended

(e.g. by Board approval either unilaterally or on request of Pointe), (2) the agreements

were extended several times in accordance with the prescribed mode, (3) the last

extension approved by the Board specified an expiration date of January 29, 2005, and

(4) County informed Pointe on April 15, 2005, that the Subdivision Improvement

Agreements had expired and were in "default due to the original agreements expiring on

January 29, 2005." The burden therefore shifted to County (Aguilar v. Atlantic Richfield

Co., supra, 25 Cal.4th at p. 850) to produce evidence raising a triable issue of fact on

whether, notwithstanding County's statement the Subdivision Improvement Agreements

had expired and were in default as of January 29, 2005, the Subdivision Improvement

Agreements had not expired until some later date.

       County's evidence in opposition to Pointe's statute of limitations showing was that

the 2006 Amended Agreement was signed less than four years before County filed its

lawsuit, from which County asserts its lawsuit was timely. County argued the

                                             16
Subdivision Improvement Agreements had not expired, and therefore its claims for

breach of those agreements were not time-barred, because the time for performing the

obligations imposed by the Subdivision Improvement Agreements was first extended by

the Tri-Party Agreement, and thereafter was extended by the Amended Agreement, to a

date less than four years before County's lawsuit was filed.

       However, as County conceded below, neither the Tri-Party Agreement nor the

Amended Agreement expressly extended the time for performing the obligations imposed

by the Subdivision Improvement Agreements. To the contrary, the Tri-Party Agreement

provided it would construct road improvements to Jamacha Boulevard "as required by

TM4828-1 in accordance with plans to be resubmitted for approval by [the DPW]"

(italics added), and the subsequent Amended Agreement reiterated that Pointe agreed to

"construct the road improvements to Jamacha Boulevard as required by TM4828-1 and

[CG] 4476 in accordance with plans approved by [the DPW]" (italics added), which is

inconsistent with an agreement to perform road improvement obligations previously

imposed by the Subdivision Improvement Agreements. Indeed, the structure of the Tri-

Party Agreement created new obligations among its participants, rather than extending

the time for performing obligations imposed under the 1992 Subdivision Improvement

Agreements, because (1) the road plans had to be resubmitted, approved and permitted

under a distinct permit (CG 4476),8 (2) the parties to the Tri-Party Agreement undertook



8      Although County submitted no evidence showing the degree of similarity between
the road improvements required by the Subdivision Improvement Agreements and the
road improvements required by the Tri-Party Agreement, the undisputed evidence
                                            17
obligations apparently distinct from the obligations of Pointe under the Subdivision

Improvement Agreements,9 and (3) the parties (when they restructured these newly

imposed obligations in the Amended Agreement in recognition that "both [the]

construction costs and the scope of work for the project have increased since approval of

the original contract" (italics added)) apparently acknowledged the "project"

contemplated by the "original contract" was limited to the stop-gap emergency

modification of Jamacha Boulevard.10 Because neither the Tri-Party Agreement nor the

Amended Agreement contain any references to the Subdivision Improvement

showed the resubmitted plans were so distinct from the previously approved plans that it
required a resubmission of the new plans for approval and a nearly two-year review
process before the new plans were approved, and Pointe's evidence was that the road
improvements it agreed to build under the Tri-Party agreement were substantially
different in scope and purpose from the road improvements required by the Subdivision
Improvement Agreements. (See fn. 5, ante.)

9      Pointe agreed to submit plans, and thereafter to construct, a series of road
improvements apparently different from the improvements under the Subdivision
Improvement Agreements. (See fn. 5, ante.) Moreover, Surety (who acted as a passive
guarantor under the Subdivision Improvement Agreements) became an active participant
in the Tri-Party Agreement by agreeing to provide financing for this construction.
Finally, County also undertook a series of obligations that were apparently new and
distinct: it agreed to pay the costs associated with repairing or replacing the sewer; it
agreed to recommend that a condition be attached to any tentative map or Specific Plan
amendment for the Dictionary Hill Property requiring that owner to contribute to the
costs associated with this new road improvement; and it agreed to approve Pointe's
apartment projects with a condition that occupancy permits would be withheld until
completion of the road improvements called for in the Tri-Party Agreement.

10      Indeed, in another recital contained in the Amended Agreement, the parties recited
that, as to the units Pointe was building and County agreed to approve in consideration
for Pointe's road construction obligations, "mitigation for the traffic created by these units
is covered under a certified EIR for TM4828." If the Amended Agreement merely
extended Pointe's previously imposed rights and obligations under the Improvement
Agreements, this language would appear to be surplusage.
                                             18
Agreements, and were instead designed to impose a new set of rights and obligations to

solve distinct concerns by each of the contracting parties, the trial court correctly ruled

that neither the Tri-Party Agreement nor the Amended Agreement was understood or

intended by the parties as extending the time for Pointe to perform its obligations under

the Subdivision Improvement Agreements. This understanding and intent was confirmed

by County because, shortly after County finally approved the plans for the Jamacha

Boulevard improvements called for by the Tri-Party Agreement (and during the time

Pointe was still performing the independent obligations imposed under the Tri-Party

Agreement) County informed Pointe (in its April 15, 2005, letter) that the Subdivision

Improvement Agreements had expired and were in "default due to the original

agreements expiring on January 29, 2005."

       County argues the references in the Amended Agreement to Pointe's obligation to

build "the road improvements to Jamacha Boulevard as required by TM4828-1 and [CG]

4476" by implication necessarily extended the time for performing the obligations

imposed on Pointe by the Subdivision Improvement Agreements. However, Pointe's

showing below was that the Tri-Party and Amended Agreements required improvements

to Jamacha Boulevard significantly different from the improvements required under the

Subdivision Improvement Agreements (see fn. 5, ante), and were built under a distinct set

of plans and at a different cost using different financing arrangements. County's showing

below contained no evidence raising a triable issue of fact that "the road improvements to

Jamacha Boulevard as required by TM4828-1 and [CG] 4476" were the same road

improvement obligations imposed on Pointe by the Subdivision Improvement

                                             19
Agreements, much less that "the road improvements to Jamacha Boulevard as required by

TM4828-1 and [CG] 4476" were coextensive with all of the other obligations imposed on

Pointe by the Subdivision Improvement Agreements, and therefore County's claim that

the later agreements by implication necessarily extended the time for performing the

earlier agreements does not have evidentiary support.

       We conclude the trial court correctly ruled the Subdivision Improvement

Agreements lapsed more than four years before County's complaint was filed, and

County's claims asserting breach of the Subdivision Improvement Agreements were

barred by the expiration of the statute of limitations.

       B. Denial of County's Motion for Leave to Amend Was Not an Abuse of

Discretion

       County alternatively argues the trial court abused its discretion when it denied its

motion for leave to amend the complaint.

       Background

       In opposition to Pointe's summary judgment motion, County asserted summary

judgment was improper because the complaint set forth the terms of the Tri-Party

Agreement and the Amended Agreement, and the complaint alleged that despite the Tri-

Party Agreement and the Amended Agreement, Pointe had not completed the required

improvements to Jamacha Boulevard. County argued these allegations, when liberally

construed, stated facts sufficient to support a claim for breach of the Tri-Party Agreement

and the Amended Agreements, and its 2009 complaint for breach of those later

agreements was not time-barred. Pointe argued the mere reference to those later

                                              20
agreements did not preclude summary judgment on the complaint, because (1) County's

allegations demonstrated the action sought damages for breach of the Subdivision

Improvement Agreements, (2) County alleged the three 1992 contracts comprised the

Subdivision Improvement Agreements and did not allege the Tri-Party and the Amended

Agreements were among the Subdivision Improvement Agreements, and (3) the

undisputed facts showed the Subdivision Improvement Agreements involved distinctly

different obligations from the obligations of the Tri-Party and Amended Agreements.

       County alternatively argued that, even if its allegations were insufficient to state a

claim for breach of those later agreements, the materials submitted in opposition to the

motion for summary judgment demonstrated County could state a claim for breach of

those agreements and County should be granted leave to amend the complaint to state

claims for breach of the Tri-Party Agreement and the Amended Agreement. Pointe

argued County's request for leave to amend should be denied because (1) the request for

leave to file an amended complaint was untimely and (2) an order permitting County to

amend to state entirely new claims for breach of the Tri-Party and Amended Agreements

would be futile because such claims would themselves be time-barred. The court agreed

the request was untimely, and also questioned how County would obviate the statute of

limitations as to claims for breach of the Tri-Party and Amended Agreements.

Accordingly, the court denied County's request to amend the complaint, and entered

summary judgment in favor of Pointe.




                                             21
       Applicable Legal Principles

       A trial court has wide discretion to allow the amendment of pleadings, and

generally courts will liberally allow amendments at any stage of the proceeding.

(Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) However, unwarranted delay

in seeking leave to amend may be considered by the trial court when ruling on a motion

for leave to amend (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746), and appellate

courts are less likely to find an abuse of discretion where, for example, the proposed

amendment is " 'offered after long unexplained delay . . . or where there is a lack of

diligence . . . .' " (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.) Thus, when a

plaintiff seeks leave to amend his or her complaint only after the defendant has mounted

a summary judgment motion directed at the allegations of the unamended complaint,

even though the plaintiff has been aware of the facts upon which the amendment is based,

"[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion

by allowing them to present a 'moving target' unbounded by the pleadings." (Melican v.

Regents of University of California (2007) 151 Cal.App.4th 168, 176.)

       A trial court may also consider whether the proposed amendment would be futile.

For example, it is not an abuse of the trial court's discretion to deny leave to amend when

the newly proposed causes of action would be barred by res judicata (Yee v. Mobilehome

Park Rental Review Bd. (1998) 62 Cal.App.4th 1409, 1428-1429) or by the statute of

limitations (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230-231 (Foxborough)).




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       Analysis

       County asserts, and Pointe does not dispute, that County could have pleaded facts

adequate to state a cause of action for breach of the Tri-Party and Amended Agreements.

However, Pointe argues (and County does not dispute) any such claim would have been

time-barred had County filed a new complaint against Pointe on July 5, 2012, the date

County sought leave to amend. Unless County's claims for breach of the Tri-Party and

Amended Agreements could take advantage of the so-called "relation-back" doctrine, so

any cause of action for breach of the Tri-Party and Amended Agreements would be

deemed (for limitations purposes) to have been filed as of the date County filed its

complaint on the Subdivision Improvement Agreements, the trial court's refusal to allow

an amendment as futile would not be an abuse of discretion. (Foxborough, supra, 26

Cal.App.4th 217.)

       "An amended complaint is considered a new action for purposes of the statute of

limitations only if the claims do not 'relate back' to an earlier[,] timely[-]filed complaint."

(Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves &

Savitch, LLP (2011) 195 Cal.App.4th 265, 276.) "An amended complaint relates back to

a timely[-] filed original complaint, and thus avoids the bar of the statute of limitations,

only if it rests on the same general set of facts and refers to the same 'offending

instrumentalities,' accident and injuries as the original complaint." (Davaloo v. State

Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415.) Thus, "[u]nder the relation-back

doctrine, an amendment relates back to the original complaint if the amendment: (1) rests

on the same general set of facts; (2) involves the same injury; and (3) refers to the same

                                              23
instrumentality. [Citations.] An amended complaint relates back to an earlier complaint

if it is based on the same general set of facts, even if the plaintiff alleges a different legal

theory or new cause of action. [Citations.] However, the doctrine will not apply if . . .

'the plaintiff seeks by amendment to recover upon a set of facts entirely unrelated to those

pleaded in the original complaint.' " (Pointe San Diego, at pp. 276-277.) "[A] plaintiff

who changes the essential facts upon which recovery is sought is not entitled to the

benefits of the relation-back doctrine . . . ." (Davaloo, at p. 416.)

       We are convinced County's proposed amendment would have changed the

essential facts upon which recovery was sought and therefore would be outside the ambit

of the relation-back doctrine.11 The original complaint alleged the formation of

agreements in 1992 apparently obligating Pointe to build permanent improvements to

Jamacha Boulevard that would be integrated into a planned new freeway, and also

obligating Pointe to make other improvements, including water and sewer improvements.

The amended complaint presumably would have alleged the formation, 10 years later, of

a different agreement apparently obligating Pointe to build different improvements under

a different set of plans (e.g. temporary improvements to Jamacha Boulevard to serve as a


11      Ordinarily, courts assess the relation-back doctrine by comparing the factual
allegations in the original and amended complaints to assess whether the amendment
would rest on the same general set of facts, involve the same injury, and refer to the same
instrumentality. (Davaloo v. State Farm Ins. Co., supra, 135 Cal.App.4th at pp. 415-
416.) We are somewhat hamstrung in this analysis because County, apparently as the
result of the nature of its last-minute request for leave to amend, did not submit a
proposed amended complaint that would have facilitated a comparison. However, we
presume the amended complaint would have alleged the formation of the Tri-Party
Agreement in 2002, and its subsequent amendment in 2006, and that Pointe had defaulted
on the obligations imposed by those agreements.
                                               24
stop-gap measure pending resolution of the state's plans for the freeway, see fn. 5, ante),

that also employed different financing arrangements and contemplated different benefits

for each of the contracting parties. The original complaint also involved a different date

of default (early 2005) than did the amended complaint (April 2007), different injuries

(failure to construct road improvements for freeway access versus failure to complete a

widening of Jamacha Boulevard), and involved potentially different counterclaims by

Pointe (alleging default by County as to County's obligations under the Tri-Party and

Amended Agreements that had no counterpart under the 1992 Subdivision Improvement

Agreements). Because County could have commenced its action for breach of the

contract alleged in its original complaint over two years before its claim against Pointe

under the Tri-Party and Amended Agreements even accrued, we are satisfied County's

proposed amendment would have changed the essential facts on which recovery was

sought in part.

       We are convinced County's proposed amendment did not rest on the same general

set of facts, did not involve the same injury, and did not refer to the same instrumentality,

for purposes of the relation-back doctrine. (See, e.g., Foxborough, supra, 26 Cal.App.4th

217 [original complaint alleged negligent transactional advice between 1978 and 1981

and proposed amendment alleged negligence when attorney served as expert consultant

and witness and denied responsibility for the oversight; no relation back because latter

was separate incident that arose from new and later contractual relationship between the

parties]; Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 168-169

[amended complaint alleging cause of action for age discrimination did not relate back to

                                             25
filing of the original complaint because wrongful conduct described in the discrimination

claim did not arise out of same set of facts alleged in original complaint to support claims

of breach of contract and Labor Code violations]; Coronet Manufacturing Co. v. Superior

Court (1979) 90 Cal.App.3d 342, 347 [amended complaint alleging decedent was

electrocuted by lamp socket and switch manufactured by one entity did not relate back to

original complaint alleging electrocution was caused by a defective hair dryer from a

different manufacturer].) Because County's proposed amendment sought to interpose a

claim that would not be eligible for the relation-back doctrine and therefore would have

been time-barred, the trial court did not abuse its discretion when it denied County's

request for leave to amend.

                                      DISPOSITION

       The judgment as to PCSD is affirmed. The petition for writ of mandate as to the

judgment in favor of Pointe Residential is denied. Pointe is entitled to costs on appeal.




                                                                           McDONALD, J.

WE CONCUR:


BENKE, Acting P. J.


HALLER, J.




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