Swan v. Stoll

and the defendant will not be prejudiced.’” (Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136, 1159, citations omitted.) Here, plaintiff has complied with the basic requirements of bringing a motion to amend, including providing a copy of the proposed second amended complaint and her own declaration, in which she explains the basis for the amendment and the reasons she did not seek to amend earlier. While plaintiff has delayed for several years before seeking leave to amend, she has provided a sufficient explanation for her delay, including the fact that the amendment is based on recently obtained discovery, difficulties obtaining discovery from defendants and the withdrawal of her attorney from the representations.

Therefore, plaintiff has shown good cause to grant leave to allow her to file her second amended complaint. However, plaintiff has not filed a proof of service showing that she served defendants with her motion and supporting papers. Therefore, she has not complied with the requirements of Code of Civil Procedure section 1005, subdivision (b), which requires that all moving and supporting papers must be served at least 16 court days before the hearing date for the motion. Defendants have not opposed the motion, so they have not waived proper notice of the motion.

Therefore, the court intends to deny the motion to allow plaintiff to file her second amended complaint without prejudice for failure to give proper notice of the motion. In addition, the proposed SAC submitted by plaintiff does not include all causes of action that were alleged in the prior complaint, nor does it include the new alter ego allegations or the new sixth cause of action for fraud/undue influence that plaintiff stated in her motion that she wanted to add to the SAC. The proposed SAC is thus incomplete, so even if the court were to ignore the lack of proper notice, the court would not allow plaintiff to file her proposed SAC in its present form.

Motion to File Third Amended Complaint in Swan 2: As discussed above, judicial policy favors resolution of cases on the merits, and thus the court’s discretion as to allowing amendments will usually be exercised in favor of permitting amendments. This policy is so strong, that denial of a request to amend is rarely justified, particularly where “the motion to amend is timely made and the granting of the motion will not prejudice the opposing party.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)

Even so, “. . .a court has ample discretion to deny a motion for leave to amend where a proposed amendment is legally futile or where there has been inexcusable delay in making the motion. . .” (Jo Redland Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th 142, 161–162.) Here, plaintiff seeks leave to file a third amended complaint that would allege new causes of action for fraud against Northwest Baptist Church and Will Stoll. She claims that she did not learn the facts underlying her fraud claims until recently, as defendants made misleading statements about their relationship with co-defendants Tshibanda and his company, United for the Future, and whether Tshibanda and United were their agents.

She claims that she first realized that Tshibanda was not Northwest Church’s agent in August of 2025 when he finally answered her interrogatories regarding his relationship with the Church. Now, she seeks to allege the new claims against the Church and Stoll based on the theory that Tshibanda and United were the Church’s ostensible rather than actual agents.

Previously, the court denied plaintiff’s motion to file the third amended complaint against the Church because she had not alleged any facts showing that the delayed discovery rule applied to her proposed fraud claim. The court noted her fraud claim seemed to be time-barred, and that plaintiff had not alleged facts showing that she did not learn of the facts underlying the claim until less than three years before she sought to amend the complaint. Now, in her renewed motion to amend, plaintiff claims that she learned about the facts regarding the ostensible agency relationship less than three years ago, and thus the new claims are not time-barred. “An action for relief on the ground of fraud or mistake. . .” must be brought within three years. (Code Civ.

Proc., § 338, subd. (d).) “The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Ibid.) However, “[a] plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109.) Here, most of the facts constituting the alleged fraud occurred in 2018, when Stoll and Northwest Church allegedly pressured plaintiff into accepting $65,000 to resolve her claim against Tshibanda and United for the Future, and then later failed to ensure that Tshibanda actually paid plaintiff as promised. (SAC, ¶¶ 15-36.)

Plaintiff also alleges one incident in January 17, 2021, where she asked Stoll about when she was going to be repaid for the money that Tshibanda took from her, and Stoll allegedly yelled at her, called her a liar, and had her removed from the Church property by security. (Id. at ¶¶ 38-39.) It is not clear whether the January 17, 2021 incident constitutes part of her fraud claim, as nothing Stoll did at that time seems to support a fraud cause of action. In any event, plaintiff’s second amended complaint clearly shows that she was aware of the basic facts underlying the new fraud claims by 2018.

However, she did not file her complaint against the Church and Stoll until January 30, 2023, more than three years after the claims accrued. Thus, the fraud claims appear to be time-barred on their face. In her latest motion to amend, plaintiff repeats most of the same facts that supported her prior motion, which only confirm that she has been aware of the facts underlying her fraud claims since 2018. She also argues that the cause of action did not begin to accrue until February 2025, because she previously believed that Tshibanda and United were agents of Northwest Baptist Church and she did not begin to suspect that they were not agents of Northwest Baptist Church until February 2025.

She only confirmed that fact following discovery responses from the Tshibanda defendants received in August 2025. She also alleges that defendants have failed to provide full and complete responses to her discovery requests and have provided misleading answers to some requests, which caused her to believe that Tshibanda was the Church’s actual agent, when in fact he was only its ostensible agent. However, regardless of when plaintiff learned of the exact nature of the relationship between the Tshibanda defendants and the Church, it is clear from her allegations in the prior complaints and her declaration in support of the latest motion to amend that she has always known or believed that Tshibanda had either an actual or ostensible agency relationship with the Church.

In fact, she states in her declaration in support of the present motion that she repeatedly referred to Tshibanda as a staff member and member of the clergy for the Church in her earlier complaints. (Swan decl., 7

¶ 22.) She states that the Church’s responses to discovery appeared to confirm that Tshibanda was a member of the clergy and an agent of the Church. (Ibid.) Therefore, plaintiff has believed from the outset of the case that Tshibanda was the Church’s agent and a clergy member. If she believed that he was an agent of the Church, then she had all the facts she needed to bring a claim for fraud against the Church and Stoll arising out of Tshibanda’ s allegedly fraudulent acts since 2018. Since she failed to file her fraud claims until more than three years after she obtained all the facts she needed to bring her claims, her claims are now time-barred.

Plaintiff seems to be arguing that she did not have sufficient facts to bring a fraud claim against the Church or Stoll until she learned that Tshibanda was not the Church’s actual agent, and that he was instead only the Church’s ostensible agent. Yet, regardless of whether Tshibanda was an actual agent or an ostensible agent of the Church, the Church could still potentially be liable for his allegedly fraudulent conduct. “[A] person is liable for the torts committed by her agent within the scope of the agency.

There are two types of agency—actual and ostensible. Actual agency is based on consent, and turns on whether the principal has the right to control the agent's conduct. [¶] Ostensible agency is based on appearances, and turns on whether the ‘the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent’ even though the third person is not actually an agent.” (Pereda v. Atos Jiu Jitsu LLC (2022) 85 Cal.App.5th 759, 768, citations omitted, italics in original.)

Thus, regardless of whether the agency is actual or ostensible, the principal is still equally liable. As a result, it does not matter for the purpose of the accrual of the statute of limitations when plaintiff learned that Tshibanda was the Church’s ostensible agent, as opposed to its actual agent. The key issue is when plaintiff knew or suspected the facts that underlie her fraud claims, including when plaintiff knew or suspected that Tshibanda was acting as the Church’s agent, whether actual or ostensible.

Here, plaintiff admits that she had all of the basic facts regarding her fraud claims in 2018, and that she always believed that Tshibanda was acting as the Church’s agent. However, she did not file her complaint against the Church and Stoll until January 30, 2023, more than three years after her fraud claim accrued. Therefore, her proposed fraud claims are time-barred. Because plaintiff’s new fraud claims are time-barred, it would be futile to grant leave to amend, as there is no way for plaintiff to allege a valid cause of action for fraud.

As a result, the court intends to deny the motion for leave to file a third amended complaint against the Church and Stoll.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 08/04/26. (Judge’s initials) (Date)

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