Espinosa

Petitioner Salvador Espinosa’s 1987 amendment to his 1984 complaint added an allegation that the City of Pittsburg, the real party in interest in this action, violated his federal civil rights. Respondent court sustained a demurrer to this amendment without leave to amend on the ground that the statute of limitations had run. Espinosa applied to this court for a writ of mandate. We find that the superior court properly sustained the demurrer, but should have given Espinosa leave to amend.

I. Facts

On May 7, 1983, 1 petitioner Salvador Espinosa was arrested by police from the City of Pittsburg (City). In his May 1984 complaint for damages, he alleged that four City police officers assaulted him without provocation on May 7, resulting in his false arrest and imprisonment. He also alleged that his initial booking photograph, evidence that would tend to establish his assault claim, was destroyed by one of the officers or their agents. Espinosa brought suit against the City, its police department, and four of its *412 officers for battery, false arrest, false imprisonment, and intentional destruction of evidence. He also alleged two causes of action for violation of his…

In Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596 [ 15 Cal.Rptr. 817 , 364 P.2d 681 ], a unanimous opinion authored by Chief Justice Gibson, the California Supreme Court took pains to make clear that where an amendment to a complaint is filed after the statute of limitations has run “the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts.” (Id. at p. 600, italics added.) That sea change decision threw overboard cases that had set the standard variously as whether the amended pleading stated a new cause of action or a new legal theory or set forth a wholly different cause of action or a wholly different legal liability or obligation. The new simple-to-use same-general-set-of-facts standard was designed both to avoid the danger of narrow construction that other tests involved and to promote the policy of litigating cases on their merits. Nor was the Supreme Court bashful about *417 what it was doing: it characterized the result as “the liberality of amendment permitted by the modern rule.” (At p. 603.)

In the case at hand Mr. Espinosa in his original…

Sellar, Hazard, Snyder, Kelly & Fitzgerald, James V. Fitzgerald, Stephanie Gray, Gibbons, Lees, Schaefer & Edrington and Dolores M. Donohoe for Real Parties in Interest.

OPINION

CHANNELL, J.

Petitioner Salvador Espinosa's 1987 amendment to his 1984 complaint added an allegation that the City of Pittsburg, the real party in interest in this action, violated his federal civil rights. Respondent court sustained a demurrer to this amendment without leave to amend on the ground that the statute of limitations had run. Espinosa applied to this court for a writ of mandate. We find that the superior court properly sustained the demurrer, but should have given Espinosa leave to amend.

On May 7, 1983, [1] petitioner Salvador Espinosa was arrested by police from the City of Pittsburg (City). In his May 1984 complaint for damages, he alleged that four City police officers assaulted him without provocation on May 7, resulting in his false arrest and imprisonment. He also alleged that his initial booking photograph, evidence that would tend to establish his assault claim, was destroyed by one of the officers or their agents. Espinosa brought suit against the City, its police department, and…