Cristian Alfaro v. Gary Scott Ackerman, et al.

Plaintiff Alfaro moves to amend his Complaint to add punitive damages allegations against Defendant Ackerman and to add Thermodyne International, Ltd. as the employer of Ackerman, and thereby, liable under a respondeat superior/vicarious liability for his negligent driving. Defendant Thermodyne opposes. Plaintiff Alfaro replies.

A court may permit a party to amend any pleading by adding or striking out the name of any party, correcting a mistake, or any other particulars. (Code Civ. Proc., §473, subd. (a)(1).) Leave to amend is within the court’s sound discretion. (Code Civ. Proc., §473.) Yet as judicial policy favors resolution on the merits, courts liberally grant leave to amend. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.)

If a motion to amend is timely made and the opposing party will not be prejudiced, it is an error to refuse permission to amend, and, if the denial results in a party being deprived of asserting a meritorious cause of action or defense, the error is an abuse of discretion. (Morgan v. Superior Court (Morgan) (1959) 172 Cal.App.2d 527, 530.) Ordinarily, the court does not consider the validity of the proposed amendment. (Kittredge Sports Co. v. Superior Court (Marker, U.S.A.) (1989) 213 Cal.App.3d 1045, 1048.) Nevertheless, the court may deny leave to amend if the proposed amendment fails to state sufficient facts to constitute a cause of action. (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.)

Although the courts apply a policy of liberality in permitting amendments, this policy applies only where no prejudice is shown. (Mesler v. Bragg Mgt. Co. (1985) 39 Cal.3d 290, 297.) Prejudice exists where the amendment would require delaying the trial, losing critical evidence, adding preparation costs, or increasing the burden of discovery. (Magpal v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486- 488.) However, even if some prejudice exists, the judge may still permit amendment, but impose conditions, e.g., the judge may continue the trial date or limit discovery. (Code Civ. Proc., §§473, subd. (a)(1)-(2), 576; Fuller v. Vista Del Arroyo Hotel (1941) 42 Cal.App.2d 400, 404-05.)

Procedurally, a motion to amend a pleading must (1) include a copy of the proposed amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments, (2) state what allegations in the previous pleading are deleted or added (if any) and where, by page, paragraph, and line number, the deleted or additional allegations are located, and (3) contain a separate declaration specifying (a) the effect of the amendment, (b) why the amendment is necessary and proper, (c) when the facts discovered that give rise to the amended allegations, and (d) the reasons why the request for amendment was not made earlier. (Rules of Court, rule 3.1324(a)-(b).)

Analysis

Procedurally, Plaintiff Alfaro submits as Exhibit 6 to attorney Gauthier’s Declaration his proposed First Amended Complaint (Proposed FAC). Plaintiff’s Counsel attests that after deposing Ackerman, the facts related to his employment and the events surrounding the accident were ascertained. Ackerman was deposed on May 6, 2024. Plaintiff further obtained the hospital toxicology report that showed Ackerman had a 0.113 g/dl blood alcohol level. Plaintiff then deposed Thermodyne’s CEO, Gary Stephen Ackerman (Ackerman’s father), who testified that employees did not use personal vehicles for conducting business.

He was deposed on August 6, 2025. However, two former Thermodyne employees testified that they used their personal vehicles to conduct Thermodyne business. (Gauthier Decl. at ¶4-8, Exhs. A-6; Campbell Decl. at ¶¶4-3, Exhs. 2-3.) At least since December 28, 2023, Plaintiff Alfaro knew Thermodyne employed Ackerman at the time of the collision. (Exh. 1 to Campbell’s Decl.)

Based on these discoveries, Alfaro seeks to add Thermodyne as a defendant and add punitive damage allegations against Defendant Ackerman in the Proposed SAC. Defendant Thermodyne In construing the facts provided, Plaintiff Alfaro does not explain why he could not have named Thermodyne earlier. Thermodyne was named a party in the related Fuentes litigation in April 2023. Defendant Ackerman may have attested that he was not working during the time of the accident, but he disclosed his employer at that time in his December 2023 declaration.

However, Alfaro waited over 2.5 years to seek to add Thermodyne. Also, Ackerman’s deposition, which detailed his steps on the day of the accident, occurred on May 6, 2024, and Plaintiff then waited 2 years to seek to add Thermodyne as a party. Now, the factual evidence also indicates that knowledge that employees would drive their personal vehicles to conduct Thermodyne business arose in 2026. (Gauthier Decl. at ¶¶7-8, Exhs. 4-5.) However, that does not address whether Ackerman himself was in the course and scope of his employment when the subject accident occurred.

Again, the facts about Ackerman and his actions on the day of the accident were known by May 6, 2024. But two years go by without seeking leave to amend. As a whole, Plaintiff Alfaro fails to explain why he did not seek leave to amend earlier to add Thermodyne.

Next, in opposing, Thermodyne argues naming it is futile because any claim against it is time-barred and Ackerman was not in the course and scope of his employment. The latter is not considered because that goes to a factual matter that is not appropriate for determination on a motion to amend. Personal injury and wrongful death claims are subject to a 2-year limitation. (Code Civ. Proc., §335.1). The death of Decedent and injury to Alfaro arose when the accident occurred on December 4, 2017. Two years from that date is December 4, 2019. Yet Plaintiff seeks to add Thermodyne in 2026, which is over 6 years after the statute of limitations expired.

In response, Plaintiff maintains that since Thermodyne’s liability is vicarious pursuant to respondeat superior, and the predicate facts are not changing, the claim against it relates back to the timely filing of the Complaint. In California, a rule exists that “an amended complaint relates back to the filing of the original complaint, and thus avoids the bar of the statute of limitations, so long as recovery is sought in both pleadings on the same general sets of facts.” (Smeltzley v. Nicholson Mfg.

Co. (1977) 18 Cal.3d 932, 934.) Considering Thermodyne would be added as a defendant under vicarious liability theory, so the factual allegations that support the negligent causes of action are not altered, the FAC’s claim against Thermodyne could be said to relate back to the December 4, 2019, filing of the Complaint, which was filed the last day before the negligence claims became time-barred.

Nonetheless, although neither side raises it, with reliance on the relation back doctrine, Plaintiff Alfaro is confronted with another issue to overcome. He will have failed to serve Thermodyne with the Complaint within 3 years of the action commencing against it pursuant to Code of Civil Procedure section 583.210. A plaintiff shall serve the summons and complaint on a defendant within 3 years after the action is commenced against that defendant. (Code Civ. Proc., §583.210, subd. (a).) An action is commenced when the complaint is filed. (Code Civ.

Proc., §583.210, subd. (a).) For Doe-named defendants, the 3 years runs from the date the complaint is filed, predicated upon the relation-back doctrine. (Inversiones Papaluchi S.A.S. v. Superior Court (Robinson Helicopter Company, Inc.) (2018) 20 Cal.App.5th 1055, 1061.) “In short, a plaintiff has three years from the date of filing the complaint to identify and serve a Doe Defendant.” (Ibid.)

If service of the summons and complaint is not completed within 3 years, the action shall not be further prosecuted, no further proceedings shall be held, and the action shall be dismissed by the court on its own motion or by a motion from any interested party. (Code Civ. Proc., §583.250, subd. (a).) Dismissal is mandatory unless an extension, excuse, or exception exists as provided by statute. (Code Civ. Proc., §583.250, subd. (b).) The statutory exceptions exist in computing the time for service are: “(a) The defendant was not amendable to the process of the court. [¶] (b) The prosecution of the action was stayed and the stay affected service. [¶] (c) The validity of the service was the subject of the litigation by the parties. [¶] (d) Service, for any other reason, was impossible, impractical, or futile due to causes beyond the plaintiff’s control.” (Code Civ.

Proc., §583.240.) “Failure to discover relevant facts or evidence is not a cause beyond the plaintiff’s control for the purpose of [subdivision (d)].” (Code Civ. Proc., §583.240(d)); emphasis added.)

Although Defendant Thermodyne is not named as a Doe Defendant, Plaintiff Alfaro relies on the relation back doctrine to render the claims against Thermodyne timely. In doing so, he is subject to the mandatory dismissal statutes, which require service of the Summons and Complaint within 3 years of the defendant’s naming. If Thermodyne is deemed named as of December 4, 2019, then it needed to be served no later than December 4, 2022. Considering the service of the Summons and Proposed FAC on Thermodyne will occur in 2026, after the amend motion is potentially granted, the service would be subject to the mandatory dismissal statute. Thus, the naming of Thermodyne is futile.

Also, to be clear, under the mandatory dismissal provision of Code of Civil Procedure section 583.250, subdivision (a)(2), the court may dismiss the litigation on its own. However, as the Court is considering a ground not raised by either party, it will continue the hearing on the motion to allow both sides to brief whether the amendment would be futile under the mandatory dismissal provisions of Code of Civil Procedure sections 583.210, subdivision (a), and 583.250.

Punitive Damages Plaintiff Alfaro also requests leave to add a claim for punitive damages as against Defendant Gary Scott Ackerman and said defendant has filed no opposition to the requested leave. Consequently, the Court will grant leave to add the claim for punitive damages as against Defendant Gary Scott Ackerman.

TENTATIVE RULING (1) The Court continues the hearing on Plaintiff Alfaro’s Motion for Leave to Amend to name Thermodyne to July 1, 2026, at 8:30 a.m., so that Plaintiff Alfaro and proposed Defendant Thermodyne can address the mandatory dismissal obligations under Code of Civil Procedure sections 583.210 and 583.250, as rendering the naming of Thermodyne futile. The Court orders Defendant Thermodyne to file and serve any supplemental brief by June 12 and Plaintiff Alfaro to file and serve any supplement brief by June 22. (2) The Court grants Plaintiff Alfaro’s Motion to Amend to plead a punitive damages claim against Defendant Ackerman.