Young v. Berry Equipment Rentals, Inc.

• Decision Date: 03 February 1976
• Citation: 55 Cal.App.3d 35,127 Cal.Rptr. 200
• Court: California Court of Appeals Court of Appeals
• Parties: Alvin M. YOUNG, Plaintiff and Appellant, v. BERRY EQUIPMENT RENTALS CORP., Defendant and Respondent. Civ. 2493.

Page 200

127 Cal.Rptr. 200

55 Cal.App.3d 35

Alvin M. YOUNG, Plaintiff and Appellant, v. BERRY EQUIPMENT RENTALS CORP., Defendant and Respondent.

Civ. 2493.

Court of Appeal, Fifth District, California.

Feb. 3, 1976.

Kane, Canelo & Walker, and Regis J. Amann, Merced, for plaintiff-appellant

Cardozo, Nickerson & Martelli, and Paul L. Martelli, Modesto, for defendant-respondent.

OPINION

STATEMENT OF THE CASE

FRANSON, Associate Justice.

The action arise out of appellant Young's injury on a construction job on August 13, 1971. He was working on a new wing of the Emanuel Hospital in Turlock and was ordered by his employer to climb to the top of a 12-foot tower to direct the pouring of cement into the tower. The cement was hoisted above him and positioned for its drop by a forklift vehicle, owned by respondent and driven by George Montero, a fellow-employee. Appellant's employer had rented the forklift from respondent for use on the job. Because of the negligence of Montero, the forklift crashed into the tower causing severe personal injury to appellant.

Appellant received workman's compensation benefits of $6,866.64. He also filed a complaint in the superior court against various defendants, including a fourth cause of action against the respondent, for vicarious liability based upon respondent's ownership of the forklift, as provided by section 17150 of the Vehicle Code. Respondent denied the allegations and alleged a limitation of its liability to $15,000 as provided by section 17151, subdivision (a) of the Vehicle Code.

On February 16, 1973, the jury returned a verdict in favor of all defendants. However, on April 12, 1973, pursuant to a motion by appellant, a judgment notwithstanding the verdict was entered against respondent, and a new trial was granted to appellant solely on the issue of damages.

On April 20, 1973, appellant moved to file an amended complaint alleging as a new theory of liability that respondent had been negligent in entrusting the forklift to an incompetent operator and had violated construction safety orders governing the maintenance and operation of the forklift. The trial court denied the motion on the ground that the new trial was on the issue of damages only.

The new trial was held on June 24, 1974, before the court without a jury. It was stipulated that Montero had been negligent in the operation of the forklift and that appellant's minimum damages amounted to $21,866.64. Judgment was entered for appellant in the sum of $8,133.36.

DISCUSSION

Appellant makes two contentions on appeal: first, that the trial court abused its discretion in denying him leave to amend his complaint to assert a new theory of liability against respondent. Second, that the court erred in not awarding him a judgment for $15,000.

DENIAL OF LEAVE TO AMEND

Code of Civil Procedure section 473 allows the trial court to grant leave to amend pleadings at any stage of the proceedings, and the exercise of this authority is within the sound discretion of the judge. (Permalab-Metalab Equipment Corp. v. Maryland Cas. Co. (1972) 25 Cal.App.3d 465, 472, 102 Cal.Rptr. 26.) Amendments proffered after judgment is rendered, however, are allowed only if the judgment is vacated as by granting a motion for new trial. (See King v. Unger (1938) 25 Cal.App.2d 632, 635, 78 P.2d 255; 3 Witkin, Cal. Procedure (2d ed.) Pleadings, § 1054, p. 2630.) ¹

The courts today are quite liberal in allowing amendments to pleadings with relation-back effect for statute-of-limitation purposes, even if the amendment results in a new cause of action. The test is whether the recovery is sought on the same 'general set of facts.' (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 584--585, 86 Cal.Rptr. 465, 468 P.2d 825; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600--601, 15 Cal.Rptr. 817, 364 P.2d 681.)

Inexcusable delay in presenting a proposed amendment, however, constitutes grounds for denial of leave to amend. (See Rainer v. Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 257--259, 95 Cal.Rptr. 901; Hayutin v. Weintraub (1962) 207 Cal.App.2d 497, 507--508, 24 Cal.Rptr. 761; Witkin, Cal. Procedure (2d ed.) Pleadings, § 1048, pp. 2623--2625.)

The original cause of action against respondent was predicated on the negligence of the forklift operator which was imputed to respondent under Vehicle Code section 17150. The proposed amendment would state a cause of action for direct negligence by respondent in maintaining the forklift in violation of construction safety orders and for entrusting the equipment to a negligent operator. A somewhat persuasive argument can be made that the new cause of action is not based on the same facts as the original cause of action in that it alleges conduct by respondent totally distinct from the conduct of Montero in driving the forklift. Also, the allegations concerning the safety orders do not involve the same facts on which Montero's negligence was based.

Even if it is concluded, however, that the new cause of action arises out of the same facts as the original cause of action, we nonetheless cannot hold, in light of the long delay in moving to amend, that the trial court abused its discretion in denying the motion. The question of the timeliness of appellant's motion involves a consideration of the existence and extent of prejudice to respondent. The original complaint was filed November 5, 1971; the motion to amend was not made until April 20, 1973, following the granting of the new trial. In his affidavit in support of the motion, appellant's attorney states that the information upon which the amendment was based was first learned at the trial; however, respondent had been a party to the action from the outset and was subject to the rules of pretrial discovery.

"A long unexcused delay may be the basis for denying permission to amend pleadings (citations), especially where the proposed amendment interjects a new issue (citations), which may require further investigation or discovery procedures (citations)." (Rainer v. Community Memorial Hosp., supra, 18 Cal.App.3d at p. 258, 95 Cal.Rptr. at 912; see also Permalab-Metalab Equipment Corp. v. Maryland Cas. Co., supra, 25 Cal.App.3d 465, 472, 102 Cal.Rptr. 26; Hunt v. Smyth (1972) 25 Cal.App.3d 807, 827--830, 101 Cal.Rptr. 4.)

Apart from the untimeliness of the motion, respondent has shown that it would be greatly prejudiced by allowing the amendment after the new trial had been granted. Appellant obviously is attempting to circumvent the $15,000 damage limit established by Vehicle Code section 17151. As respondent notes, if appellant had prevailed at the first trial, respondent's liability would have been so limited. As the new trial was granted solely as to damages, leave to amend after the new trial was granted would have resulted in a relitigation of the entire action. Respondent's attorney stipulated at the new trial that appellant's minimum damages were $21,866.64, and that the forklift operator was negligent. While appellant argues that no prejudice will result to respondent because the stipulation regarding damages will not bind respondent, and appellant will disregard the stipulation regarding the negligence of Montero, the amendment, however, would re-open the issue of liability and would expose respondent to substantially greater liability than the original action. To allow appellant to extend respondent's liability to circumvent a statute that appellant should have been aware of prior to or during trial not only is prejudicial to respondent but condones appellant's lack of preparation and foresight before the trial. Based on the above, the trial judge cannot be said

to have abused his discretion in denying the motion to amend. PROPER COMPUTATION OF DAMAGES UNDER WITT v. JACKSON AND SECTION 17151, SUBDIVISION (a) OF THE VEHICLE CODE.

Witt v. Jackson (1961) 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641, established the rule that an employer whose concurrent negligence caused injury to an employee should not be allowed reimbursement from a third party tortfeasor, in this case respondent, for compensation payments made to that employee under sections 3852, 3853 and 3856 of the Labor Code. To do so would allow the employer to profit from his own wrong. Witt further holds that '(s) ince . . . the injured...