To: Kate Bohl

From: LARAW 1 E, Student BGID No.: 6210

Re: Daly v. AutoData Systems, Inc.

Date: November 11th, 2019

Question Presented

Whether, in analyzing the timeliness of the plaintiff’s civil action against Mark Bellomy, the relation back doctrine can be

applied to determine when the statute of limitations and the service-of-process time constraint began to run with regard to the

defendant, when the plaintiff’s amended complaint only requested treble compensatory damages, in addition to changing the name of

its only cause of action under the same operative fact, and when California Code of Civil Procedure Section 10, 12, and 12a(a)

computation rules clearly indicate that such an amended complaint was filed after the statutory time limit has expired?

Brief Answer
 No. Sandra Daly’s first amended complaint doesn’t relate back to the original complaint because both complaints share the

same operative facts, whereas the parties involved remain unchanged. A mere change of the cause of action isn’t sufficient to

constitute a new claim warranting the court’s consideration of the whole case based on its merits.

Facts

On Monday, Nov. 4th, 2019, the defendant Mark Bellomy, CFO of AutoData Systems Inc., was served with a summons and a

first amended complaint at his weekend home in Incline Village, Nevada.

Mark’s worked for AutoData Systems Inc. since 2009. His CFO position requires him to frequently travel out-of-state.

In early October, 2015, defendants John Does 1 through 10 allegedly made misrepresentations about Sandra Daly

when two of Sandra Daly’s prospective employers tried to conduct background check. The plaintiff doesn’t know the true

names and identities of Defendants Does 1 through 10, and therefore sues those defendants under fictitious names.

On Wednesday, November 2nd, 2016, Sandra Daly filed an original complaint against the defendants alleging

intentional interference with prospective economic advantage.

 On Tuesday, Oct 15th, 2019 Sandra Daly filed her First Amended Complaint alleging defendant’s violation of

California Labor Code Section 1050. The complaint changed the applicable codes, the name of the cause of action, the

amount of compensatory damages, with the rest of the complaint being the same as the original complaint.

Analysis

Sandra Daly’s first amended complaint and service of process will likely be found untimely by the court. First, their respective

filing and service date fell outside the time period provided by California Code of Civil Procedure Section 10, 12, and 12a(a). Second,

the common law relating back doctrine provides that “an amended complaint relates back to the original complaint” and commences

to run on the filing of the original complaint if the amended complaint “rests on the same general set of facts as the original complaint

and refers to the same accident and same injuries as the original complaint”. Barrington v. A.H. Robins Company, 702 P. 2d. 563,

407 (Cal. 1985). Because the plaintiff’s new complaint relates back to the original complaint, the statute of limitation began

to run on the filing of the original complaint. Because both the amended complaint and the service of process exceeded the

limit of statute of limitation, Mr. Bellmony will successfully assert the statute of limitation defense and bar the plaintiff’s

claim. The plaintiff will be unlikely to successfully argue that the assertion of a different claim under the same facts can

begin a new starting date for the statute of limitation based on both case law and California policy. A finding that the

plaintiff’s civil action was filed untimely is therefore, highly probable.

 The filing date indicated in the first amended complaint shows that the statute of limitation under California Rules of Civil

Procedure §340(a) has probably run before the plaintiff filed this complaint. According to California Rules of Civil Procedure §12,

both the statute of limitation and the time limit for service of process are computed by excluding the first day and including the last,

unless the last day to be included is a holiday. A combination of §10 and §12a(a) indicates that both Saturdays and Sundays are

holidays under the statutes. Here, the first amended complaint was dated Tuesday, October 15th, 2019. The alleged offense by the

defendants occurred on someday in October, 2015. More than 3 years had elapsed between the offense and the filing of the first

amended complaint. This initial analysis indicates that the first amended complaint was filed outside the prescribed period of

limitation.

The time of the service of process on the defendants probably exceeded the statutory time scope under California Rules of

Civil Procedure §583.210 on an initial analysis. According to California Rules of Civil Procedure §12, both the statute of limitation

and the time limit for service of process are computed by excluding the first day and including the last. A combination of §10 and

§12a(a) indicates that both Saturdays and Sundays are holidays under the statutes. Here, the original complaint was filed on

Wednesday, November 2nd, 2016. The process was served on Mark Bellomy on Monday, November 4th, 2019. November 3rd, 2016

and November 4th, 2019 would be included in the calculation. 3 years and a day had elapsed between the date for filing the original

complaint and the service of summons on the defendant. This initial analysis shows that the process was likely served untimely upon

the defendant outside of the 3-year statutory limit.

 Further research in case law supports these two conclusions. In Hawkins v. Pacific Coast Bldg. Prods, the plaintiff alleging

breach of contract moved to amend its original complaint to correct mistake in corporate name after the statute of limitations had run.

Hawkins v. Pacific Coast Bldg. Prods., 22 Cal. Rptr. 3d 453. The court rules it needed to inquire into the nature of the name change to

decide whether to allow the amendment. The specific criteria involve whether the mistake in corporate name is “merely a misnomer or

defect in the description or characterization”, or whether “it is a substitution or entire change of parties”. Id. at 458. This case is

similar to our case under analysis. In both cases, there were neither changes to target defendants, nor proposed modifications to any

operative fact. Id. at 457. Because the new complaint invokes a different set of law, the remainder of the case was actually left intact

under the new complaint. The mere change in the name of a cause of action has no effect on the parties involved. It does not affect the

defendant, because the defendant’s illegal conduct had already exposed him to foreseeable legal risk from the very beginning, and the

relevant laws haven’t changed since then. If the plaintiff didn’t include it in the original complaint, it might be caused by pure omissions

or for strategical reasons. It does not affect the defendant, since the defendant’s questionable conduct wouldn’t be affected by the

plaintiff’s chosen applicable law. Therefore, Sandra Daly’s change in cause of action is purely cosmetic. Because nothing material

about the case has been changed besides the cause of action, the first amended complaint actually relates back to the original cause of

action. It doesn’t merit a new commencement of statutes of limitation from the filing date of the amended complaint.

The question of whether the tolling provision under California Rules of Civil Procedure Section 351 is constitutional is

consistent with the conclusion that plaintiff’s civil action was initiated untimely. In Filet Menu Inc. v. Cheng, the court rules that the

tolling provision is unconstitutional when applied to out-of-state merchants in the course of interstate commerce, on the grounds that
this provision unreasonably burdens interstate merchants by barring them from a statute of limitations defense “unless they maintained

a presence” in the forum state. Filet Menu Inc. v. Cheng, 84 Cal. Rptr. 2d 384, 388 (Cal. Ct. App.). We assume that the tolling clause

is constitutional and should be applied to Mr. Bellony here. Mr. Bellmony estimated that he travels out-of-state on company business

about five nights per month. This number adds up to about sixty days per year, but is minimal compared to the 3.5-year gap between

the alleged offense and the filing of the amended complaint, and therefore effect no influence on the timeliness of the filing of the

amended complaint analysis.

This rule, when combined with another rule from Perez v. Smith, supports the conclusion that the plaintiff’s service of

process was untimely. In Smith, the court ruled that the current California statute does not excuse “failure of service within

three years based on defendants’ absence from the state”, unless the defendant were not amenable to process to begin with.

Perez v. Smith, 24 Cal. Rptr. 2d 186, 189 (Cal. Ct. App.). Therefore, the statute of limitation still runs during the sixty days

that Mr. Bellomy travels out of state on company business. Since there is a three-year-plus-one-day gap between the plaintiff’s

service of process and the filing of the first amended complaint, Mr. Bellomy’s statute of limitation defense is still valid, and Sandra

Daly still served the process in an untimely fashion.

Daly or Daly’s counsel cannot successfully argue that not being able to revive a cause of action under a different set of law

would be detrimental to the plaintiff’s interest, and the court would fail in protecting the weak and vulnerable members of society.

After the statute of limitation has run, the change in the cause of action seems to only manifest the plaintiff’s indecisiveness about
litigation strategy and a mercantile desire for bargaining for self-interest. Therefore, the plaintiff’s arguments of protecting plaintiffs’

rights are weak compared to the strong legislative intent behind the making of the statutes of limitation. After all, they were designed

to “move suits expeditiously toward trial” Barrington v. A.H. Robins Company, 702 P. 2d. 563, 408 (Cal. 1985). If a mere

cosmetic change in the name of a cause of action warrants a new commencement of the statutes of limitations, a floodgate

to endless, repetitive lawsuits would be opened for the court. Therefore, the court will likely rule that the statutes of

limitation will run from the filing of the original complaint.

California policy dictates that in making rules of statute of limitations, the legislature takes into account the factors

such as the court’s interest in efficiency, in whether the cases are disposed of simply on procedural ground, on whether the

plaintiff’s rights have been unjustly forfeited, and on the state interest, such as interest in interstate commerce. Overall,

these are ultimately factors courts combine together to create a balancing test to determine whether a civil procedure fair. It

further creates exceptions to mitigate the harshness of the test such as the relating back rule. Barrington v. A.H. Robins

Company, 702 P. 2d. 563, 408 (Cal. 1985). Extending the reach of the relating back test to cover name changes for causes of

action, in the absence of a persuasive state interest or proof that the plaintiff merits special protection, would significantly

and unfairly burden the court system. A finding that the plaintiff’s amended complaint relates back to the original complaint

and avoids a new commencement date for the statute of fraud is consistent with California policy.
Conclusion

Based on statutes and case rules, there is sufficient authority to prove that the plaintiff’s first amended complaint

doesn’t relate back to the original complaint. Thus, Sandra Daly’s civil action was initiated untimely and warrants dismissal

from the court.