Rowland

David Rowland was electrocuted on June 16, 1981, in the pool area of the Desert Inn Motel. On June 4, 1982, the original complaint *1216 was filed against Desert Inn Motel, Aqua Slide and Dive and Harvey Hub-bell, Inc.

Three of the original twelve causes of action are in the name of the father, James Rowland, Sr., as plaintiff: the first against Desert Inn based on premises liability, the second and third against Hubbell and Aqua Slide on a products liability theory. All are predicated on the damages he claimed for wrongful death, delineated on the form cover complaint: “Plaintiff claims general damages for the loss of care, comfort, companionship, society and support of said decedent, together with special damages for funeral and burial expense.”

In 1984 Rowland sought to add counts 13, 14 and 15, alleging he personally witnessed the death and claiming damages for physical and mental distress against each defendant. Leave to amend was granted April 2. On May 24 the court sustained, without leave to amend, the demurrer of Desert Inn 2 to the 13th, 14th and 15th causes of action pursuant to Code of Civil Procedure section 340, subdivision (3).

Rowland contends his…

I respectfully dissent.

The majority states petitioner’s proposed amendment “seeks recovery for the same accident—the electrocution—and for the same injury—Rowland’s loss of his son.” (Majority opn., ante, p. 1218.) I agree the amendment addresses the same accident, but it does not address the same issue. The original complaint sought recovery for the loss of his son, “an original and distinct cause of action granted to the heirs of a decedent . . . .” (Majority opn., ante, p. 1218.) The amendment, on the other hand, seeks recovery, not for the loss of his son, but for physical injuries he suffered as the result of witnessing the son’s death.

The majority relies on Hirsa v. Superior Court (1981) 118 Cal.App.3d 486 [ 173 Cal.Rptr. 418 ] and Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932 [ 136 Cal.Rptr. 269 , 559 P.2d 624 , 85 A.L.R.3d 121 ]. Both recognize the policy of liberally allowing amendments to avoid the statute of limitations where the “recovery sought in both pleadings is based upon the same general set of facts.” (Hirsa v. Superior Court, supra, 118 Cal.App.3d 486, 489 .) Laudable as the maxims are, I do not feel they encompass this petitioner’s amendments.

In…

Cummings, Kemp & Meyers and Mark J. Meyers for Real Parties in Interest.

OPINION

WALLIN, J.

David Rowland was electrocuted on June 16, 1981, in the pool area of the Desert Inn Motel. On June 4, 1982, the original complaint was filed against Desert Inn Motel, Aqua Slide and Dive and Harvey Hubbell, Inc.

Three of the original twelve causes of action are in the name of the father, James Rowland, Sr., as plaintiff: the first against Desert Inn based on premises liability, the second and third against Hubbell and Aqua Slide on a products liability theory. All are predicated on the damages he claimed for wrongful death, delineated on the form cover complaint: "Plaintiff claims general damages for the loss of care, comfort, companionship, society and support of said decedent, together with special damages for funeral and burial expense." [1]

In 1984 Rowland sought to add counts 13, 14 and 15, alleging he personally witnessed the death and claiming damages for physical and mental distress against each defendant. Leave to amend was granted April 2. On May 24 the court sustained, without leave to amend, the demurrer of Desert Inn [2] to the 13th, 14th and 15th causes of action pursuant…