Vedder v. Superior Court of Lassen Cty.

FRIEDMAN, J.

Petitioner is the defendant in a personal injury action. He filed an answer, then moved for leave to amend it in order to assert the bar of the one-year statute of limitations on personal injury claims. After considering the parties’ affidavits, the trial court denied petitioner’s motion. He seeks relief by mandate. Under some circumstances mandate is available to compel allowance of a pleading amendment.

(Coy

v.

Superior Court,

58 Cal.2d 210, 215 [23 Cal.Rptr. 393, 373 P.2d 457, 9 A.L.R.3d 678].)

The accident occurred on August 16, 1964. The injured persons were a husband and wife and their minor children. The affidavits in the trial court declare that settlement discussions were conducted on their behalf by Reno, Nevada, attorneys, who dealt with Reno representatives of petitioner’s insurance carrier. The negotiations continued until the one-

[629]

year California statutory period had lapsed. At that point petitioner’s insurance carrier refused further negotiation of the parents’ claims but expressed willingness to continue discussion of the minors’ claims. The injured family then obtained California counsel, who filed a complaint in Lassen County on September 29, 1965, 44 days after lapse of the one-year period. The defendant (petitioner here) was served with process on October 7, 1965. The copy of the complaint served upon him bore no endorsement of the filing stamp and did not indicate the date of the commencement of the action. Petitioner filed his answer on November 8, 1965, not pleading the one-year statute of limitations. “Upon learning of the facts” relative to the statute of limitations, defendant’s attorney attempted by stipulation, then by motion, to inject the bar of the statute into the case.

The adult plaintiffs appear here as real parties in interest.

A request to amend an answer to raise the bar of limitations is addressed to the discretion of the trial court, which considers whether or not its allowance will further justice. (Code Civ. Proc., §§473, 576;