Metropolitan News-Enterprise


Friday, April 7, 2017


Page 1


Amendment to Bare-Bones Complaint Did Not Relate Back—C.A.


By a MetNews Staff Writer


An amendment adding new substance to a property owner’s suit against his neighbor did not relate back to the original complaint, which was timely filed but devoid of substance, and was therefore time-barred, the Third District Court of Appeal has ruled.

The panel yesterday certified for publication its March 7 opinion affirming the dismissal of Vincent Scholes’s complaint against Lambirth Trucking Company.

Scholes sued in Colusa Superior Court on May 21, 2010, three years from the date that a fire broke out on Lambirth’s property and spread to that of the plaintiff. The complaint said the plaintiff was seeking “dispute compensation on an insurance claim” and that Lambirth had “accepted liability, dispute amount of damages from fire.”

A demurrer for failure to state a cause of action was sustained with leave to amend. A demurrer to the first amended complaint drew the same result.

The second amended complaint pled a claim for trespass, claiming that Lambirth had allowed flammable wood chips and rice hulls, which Lambirth stored on its property, to blow onto the plaintiff’s property, thus spreading the fire. A demurrer was sustained with leave to amend the trespass cause of action.

The third amended complaint alleged three causes of action—negligent trespass, intentional trespass, and strict liability for trespass through unnatural activity. It contained additional details regarding Lambirth’s activities on the property and the damages alleged to have been caused, including destruction of vehicles, equipment, and trees as a result of the fire.

It also sought treble damages for destruction of trees under Civil Code §3346.

Superior Court Judge Jeffrey A. Thompson sustained the demurrer without leave to amend, citing the statute of limitations, and dismissed the action.

Presiding Justice Vance Raye, writing for the Court of Appeal, agreed with the plaintiff that the original complaint was timely filed. The applicable statute is Code of Civil Procedure §338(b), which allows three years to sue for trespass, not §339(1), which requires that suit “upon a contract, obligation or liability not founded upon an instrument of writing” be filed within two years, subject to specified exceptions, as argued by the defendant, Raye said.

Although older cases made a distinction between direct and consequential trespass, applying the shorter statute to claims for the latter, that distinction has long been abandoned by the courts, the presiding justice said.

But the application of the older statute doesn’t help Scholes, the jurist went on to say, because his original complaint was “devoid of factual allegations” and did not meet the minimal pleading standards. Accordingly, the trespass claims were new when added by amendment, and are barred because they were filed more than three years after accrual, Raye said.

The jurist also rejected the contention that §3346’s five-year period in which to sue for damage to trees applied. That section has been held inapplicable to claims resulting from negligently set fires, Raye noted.

The cases is Scholes v. Lambirth Trucking Company, C0707770.


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