Amend Your Complaint Before It’s Too (Re)Late!

In the rush to get a complaint on file, attorneys sometimes believe they can amend the complaint at a later date to address any deficiencies. After all, the legal standard governing leave to amend is generally very liberal. However, the recent case of Jason Engel v. Richard Pech is a cautionary tale.

In Engel, the Court of Appeal affirmed a trial court order sustaining a demurrer without leave to amend when the plaintiff attempted to add a different plaintiff after the statute of limitations had passed. The court held that the new plaintiff’s claim did not relate back to the original complaint. Even worse, the original plaintiff was not even the proper party, resulting in a dismissal of the entire case.

The Engel case involved a partnership which had retained an attorney to represent it in a prior lawsuit. Things apparently went badly in the underlying lawsuit, and one of the partners (but not the partnership) brought suit for malpractice against the attorney. The partner’s complaint against the attorney was filed before the statute of limitations had run. But the partner later realized that since the attorney represented the partnership, the partnership should be added as a plaintiff. After the statute of limitations had run, the partner amended the complaint to add the partnership. The partner argued that the complaint related back to the original filing and was thus timely. The partner also argued that he too was a proper plaintiff since he had an “implied” attorney-client relationship with the attorney.

Rejecting these arguments, the Court of Appeal first summarized the rules governing the amendment of a complaint. Subsequent amendments to a pleading will relate back to an earlier, timely filed pleading if they rest on the same general facts, involve the same injury, or enforce the same right as a previously named plaintiff in the original pleading. (See Norgart v. Upjohn Co.) Conversely, a new plaintiff’s claim will not relate back to a prior complaint if they introduce a different legal obligation against the defendant. (Bartalo v. Superior Court)

The Court concluded that the partnership’s claims were independent from the partner’s. It reasoned that because the partnership’s malpractice claims against the attorney were distinct from—and in addition to—the partner’s malpractice claim, the partnership’s claims did not relate back and were thus untimely. Regarding the claim of the partner as an individual, the Second District reasoned that even though both the partner and the partnership signed the retainer agreement with the attorney, only the partnership suffered damages and the partnership was the actual “client.”

What is the lesson to be learned here? Plaintiffs and their counsel should decide at the outset who to include in the complaint and, specifically, who has what particular claim. Additionally, experience teaches that some counsel rely too heavily upon the general rule of “liberality” in amending pleadings and the “relation back” doctrine.

If your business suffers harm, it could be crucial for you to name all harm-causing parties in your complaint. If you don’t, you may be left with no claims at all.