Defendant Wang’s Demurrer to Second Amended Complaint is overruled and the Motion to Strike is denied with 20 days to answer.

With regard to the First and Second Causes of Action, the statute of limitations, the DOE Amendment, and relation back, in the previous ruling of the Court, on March 15, 2016, it was properly noted that relation back does not occur absent a DOE Amendment, citing Streicher v. Tommy’s Elec. Co. (1985) 164 Cal. App. 3d 876. Plaintiff has now filed that DOE Amendment, as of March 17, 2016.

Defendant argues that the DOE Amendment was not proper as the Court already granted leave to add Wang. However, as noted in Streicher, this improper procedure can be rectified by the filing of the DOE amendment relating it back to the Original Complaint.

Here, there is some confusion as to when the Second Amended Complaint was actually filed. The Court’s Minute Order of March 15, 2016, gave Plaintiff until March 18, 2016 to file the Second Amended Complaint, and it was filed on that date after the filing of the DOE Amendment on March 17, 2016. However, the Order signed on March 16, 2016 conflicts with the Minute Order, as it deems the Second Amended Complaint filed. As there is a conflict, the Court’s Minute Order prevails over the signed Order, as the signed Order does not reflect the ruling of the Court. This is only fair to the Plaintiff. In any event, this would be procedural error, which could be easily curable (Streicher v. Tommy’s Elec. Co., page 884). As the DOE Amendment was filed before the Second Amended Complaint it will relate the allegations back to the date of the Original Complaint.

 

Whether the DOE Amendment was proper under CCP § 474 depends on whether Plaintiff was ignorant of the identity of the newly added Defendant, which means not only the actual identity, but the facts giving rise to the Cause of Action against the person (Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 783). Here, as shown by the Motion to Amend, Plaintiff only became aware of the fact that Wang was not acting on behalf of Green Thumb, but was acting individually, when he admitted as much in the Declaration he executed and which was submitted in support of Green Thumb’s Motion for Summary Judgment.

Defendant argues that since Plaintiff was aware of Wang’s liability as of the Summer of 2015, Plaintiff had to file its DOE Amendment prior to the time she did. While that may have been the better course, amendments are to be liberally allowed, and absent prejudice, must be allowed (Streicher v. Tommy’s Elec. Co. Page 884). Here, Defendant has provided no facts to show it would be prejudiced by the DOE Amendment.

Here, Plaintiff filed her Motion to Amend, which was granted by the Court, and Plaintiff corrected the procedural mistake concerning the DOE amendment within a reasonable time after that, and within the time allowed by the Court to amend.

 

As the DOE Amendment was proper, the allegations relate back to the filing of the Original Complaint, and the statute of limitations thus has not run.

As to the Third Cause of Action for Fraud, the Court has already ruled on the issues raised by Wang in the Demurrer here, with regard to the Defendant Morales, and found a Cause of Action was stated (Minute Order of August 3, 2015), and nothing has changed, other than another Defendant has been added to the allegations. As the Court previously found, the facts are sufficiently pled to state a claim for a false promise without the intent to perform and intent is for the trier of fact to decide (Beckwith v. Dahl (2012) 205 Cal. App. 4th 1039, 1061). Defendant asserts that there is no allegation that Wang made any representation as to the price. That is incorrect, such is alleged in Paragraph 27.

 

As to the Motion to Strike, a properly pled fraud claim supports recovery of punitive damages. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 610.)

 

Plaintiff to give notice.