Filed 7/25/16 Albillo v. Cho CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

OSCAR ALBILLO et al.,

Plaintiffs and Appellants,

v.

SAM CHO et al.,

Defendants and Respondents.

 B261640

 (Los Angeles County

 Super. Ct. No. NC044391)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael 

P. Vicencia, Judge. Affirmed.

Blumberg Law Corporation, Ave Buchwald, John P. Blumberg for Plaintiffs and 

Appellants.

Bremer Whyte Brown & O’Meara, Joshua D. Bordin-Wosk; Law Office of 

Priscilla Slocum and Priscilla Slocum for Defendants and Respondents.
2

INTRODUCTION

This is the second appeal arising from injuries sustained by plaintiff and appellant 

Oscar Albillo when he tripped and fell at the entrance to the Ports O’Call Village in San 

Pedro in May 2010. Oscar and his wife, Blanca Albillo,1sued Ports O’Call Restaurant 

Corporation (POC) as the purported property owner/operator in 2012. The case 

proceeded to trial in 2014. At the close of the Albillos’ presentation of evidence, the 

court granted POC’s motion for nonsuit, finding that the accident occurred on property 

that had been subleased by POC to respondents Sam and Sung Cho, the Albillos therefore 

had to prove that POC (as the landlord) had actual notice of a dangerous condition, and 

the Albillos failed to present evidence of such notice. The Albillos appealed the grant of 

nonsuit and we affirmed in a prior unpublished opinion.

The litigation did not end there, however. In 2014, after the trial court had 

indicated it was inclined to grant POC’s motion for nonsuit, the Albillos moved to amend 

their complaint to substitute the Chos, along with entity Sammyeon, Inc. (Sammyeon), as 

Doe defendants pursuant to Code of Civil Procedure section 474.2 The Chos and 

Sammyeon moved to strike the amendment, arguing that the Albillos had unreasonably 

delayed in adding them as defendants and that they were prejudiced as a result. The trial 

court granted the motion as to the Chos, dismissing them from the action, but denied it as 

to Sammyeon. 

On appeal, the parties argue as to when the Albillos knew of facts giving rise to a 

cause of action against the Chos, and whether the Chos sufficiently demonstrated 

prejudice caused by the belated amendment. We conclude that the trial court’s order 

dismissing the Chos was supported by substantial evidence. Accordingly, we affirm. 

 

1We refer to the Albillos individually by their first names for the sake of clarity. 

No disrespect is intended.

2All further statutory references are to the Code of Civil Procedure unless 

otherwise indicated.
3

FACTUAL AND PROCEDURAL HISTORY

A. The Premises

The underlying facts are discussed in detail in our prior unpublished opinion in 

this matter, Albillo v. Ports O’Call Restaurant Corp. (Sept. 16, 2015, B257293) (nonpub. 

opn.), of which we take judicial notice.3 We summarize those facts herein as relevant to 

the current appeal.

Oscar’s trip-and-fall incident occurred at the entrance to the “Pan Pacific Village”

area on the west side of the Ports O’Call Village. The Ports O’Call Village sits on land 

leased by the City of Los Angeles (City) to POC in 1976, stretching from the water of 

San Pedro Harbor on the east side to Nagoya Way on the west.4 The 1976 Master Lease 

defined the “Demised Premises” by enumerated parcels, including those relevant here 

(parcels 13 and 21A), as depicted on a Harbor Map attached to the lease as Exhibit A 

(Exhibit A). Parcel 21A is a narrow strip of land between parcel 13 and Nagoya Way, 

largely made up of the sidewalk that runs between the street and the entry to the Pan 

Pacific Village.

5

The Master Lease stated that parcel 21A was to be “used only for a 

pedestrian thoroughfare for access to and along the leased premises.”

In 1992, POC subleased a portion of the leased property to ABC International, Inc. 

(ABC). The sublease described the “Demised Premises” using different parcel numbers 

and by cross hatching placed onto Exhibit A. ABC was “solely responsible” under the 

sublease for maintenance costs for the Demised Premises, including common areas. 

Common areas were defined as including all leasable and common areas of the Demised 

Premises, including entries and walkways. 

ABC assigned the sublease to 3T Marketing and those parties executed a First 

Amendment to the sublease in 1994. The amendment redefined the Demised Premises as 

 

3We also previously granted the Chos’ request for judicial notice of portions of the 

reporter’s transcript from the prior appeal. 

4Nagoya Way is a public street maintained by the City.

5Pan Pacific Village was previously named “Asian Village.” The name was 

changed in 1995. 
4

including specified parcel numbers and “all common areas of the “Asian Village” as 

cross-hatched on Exhibit “A” attached hereto, and made part of this sublease.” In 1995, 

3T Marketing assigned the sublease to the Chos.

B. The Complaint and Cross-Complaint

The Albillos filed their complaint for negligence and loss of consortium in March 

2012 against POC and “Does 1-100.” They alleged that the defendants were “the owners, 

operators, lessors, lessees, sub-lessors, sub-lessees, tenants, and others in possession of, 

controlling, or having an interest in the property” and that POC was “the master lessee, 

landlord and operator” of the property. In that capacity, they alleged that POC 

negligently allowed a dangerous “elevation separation” to exist between Nagoya Way 

and the sidewalk in front of the Pan Pacific Village. They further alleged that as Oscar 

approached the sidewalk from Nagoya Way on May 8, 2010, he did not perceive the 

“difference in elevation” and therefore tripped and fell, “striking his head and sustaining 

injury.”

POC filed a cross-complaint against the Chos in July 2012 seeking declaratory 

relief on theories of implied indemnity, contribution, and contractual indemnity. The 

cross-complaint alleged that to the extent POC was liable for “any of the claims set forth 

in the Complaint, said damages will be because of and as a proximate result of the 

primary and active negligence, breach of contract or warranty, or other wrongful 

conduct” of the Chos and that POC “would be entitled to total and complete indemnity”

from the Chos. The cross-complaint further alleged that POC and the Chos “entered into 

a written Sublease Agreement dated February 21, 2006,”

6 which required the Chos to 

“defend and indemnify [POC] with respect to the claims being asserted” by the Albillos, 

and that the plaintiffs’ “alleged injuries and damages were the result of the actions or 

inaction” of the Chos. 

 

6This agreement, entitled Consent to Sublease, recites the history of subleases and 

amendments for the property, sets forth a “sub-sublease” for a portion of the property not 

relevant here, and confirms the Chos’ agreement to the terms of the sublease. 
5

The Chos filed an answer to the cross-complaint on September 13, 2012, 

containing a general denial of the allegations of the cross-complaint along with 

affirmative defenses. 

C. Summary Judgment and Dismissal of Cross-Complaint

POC filed a motion for summary judgment on the complaint in May 2013. The 

Chos filed a notice of joinder to POC’s motion, arguing that “[a]s the location of 

Plaintiff’s alleged fall occurred on premises not maintained, controlled or leased by 

Defendant [POC], its subleasee [sic], Defendants, Sam Cho and Sung Cho, equally do not 

possess a duty to maintain those premises as it related to Plaintiff’s claims.”

7

The court 

denied POC’s motion. 

POC dismissed its cross-complaint against the Chos on June 14, 2013. The same 

day, POC substituted in as counsel the law firm Bremer Whyte Brown O’Meara, which 

had represented the Chos prior to their dismissal. 

D. Motions in Limine and Trial

On the first day set for trial, February 24, 2014, the trial court heard extensive 

argument on motions in limine filed by the Albillos and POC related to POC’s duty of 

care and any liability by a sublessee.8 Counsel for POC, Joshua Bordin-Wosk, stated that 

POC would contend at trial that the accident occurred at a “depression” in the asphalt of 

Nagoya Road rather than where the roadway meets the sidewalk—in other words, on land 

owned by the City and just outside the property covered by the Master Lease to POC (and 

any subleases thereto). Bordin-Wosk also noted that POC’s leased property, including 

the concrete sidewalk, had been subleased to the Chos and that the Chos had possessed 

and maintained that property “for many, many years,” and therefore that “plaintiff[s] sued 

 

7The summary judgment pleadings are not included in the record on appeal, nor 

are any documents, such as the separate statement of undisputed facts, filed by the Chos 

in support of their joinder, other than the notice of joinder itself. 

8The Chos’ brief purports to cite to a Respondent’s Appendix and appears to quote 

from several motion in limine briefs, but they did not file any such appendix and did not 

include any motion in limine papers in the record on appeal. Thus, our consideration is 

confined to the hearing transcript on the motions and our prior opinion.
6

the wrong people.” In response, the Albillos’ counsel, John Blumberg, stated that “there 

will be evidence that the . . . whole walkway, sidewalk is actually not part of a sublease 

because it is a parcel for ingress and egress, rather than part of the lease.” Blumberg then 

conceded that the parties could put on evidence at trial “about what the leases were, who 

leased what,” the understanding of the boundary lines, and who had a right to possession. 

At the continued hearing on February 27, 2014, POC’s counsel asserted that the 

Albillos had to show POC had actual notice of a dangerous condition because POC had 

leased the sidewalk area to the Chos.9The Albillos’ counsel responded that “the way I 

read the lease” meant that the sidewalk was included in the property leased from the City 

to POC, but was not included in the sublease from POC to the Chos. 

The liability phase of the trial began the following day, February 28, 2014. While 

Oscar had no recollection of his fall, other witnesses testified that he fell at the point 

where the roadway met the concrete sidewalk.10 The Albillos also presented expert 

Danny May, who testified that he surveyed the boundary of the property leased to POC 

by the City. May determined that the boundary was not where the sidewalk met the 

roadway, but rather seven inches west from the edge of the sidewalk, placing the 

boundary in the road surface of Nagoya Way. 

Brad Avrit, a civil engineer, also testified as an expert for the Albillos. Avrit 

personally investigated the site of Oscar’s fall and his company took a series of 

photographs of the site. Avrit offered the opinion that the condition of the property 

created a significant risk of tripping. Avrit also acknowledged that the photographs he 

took in 2013 did not “accurately depict” the site at the time of Oscar’s fall in 2010 

 

9Counsel for the Albillos ultimately conceded that if the sublease to the Chos 

covered the site of the fall, the governing case law required them to show that POC as the 

landlord had actual (as opposed to constructive) knowledge of the dangerous condition 

and the right and ability to cure it. (See Stone v. Center Trust Retail Properties, Inc. 

(2008) 163 Cal.App.4th 608.) 

10The exact location of Oscar’s fall was disputed at trial. Taking the Albillos’ 

evidence as true for the purpose of the nonsuit motion, the court assumed that Oscar fell 

at the juncture of the roadway and the sidewalk, inside the boundary of the demised 

premises of the master lease. 
7

because “the area had been fixed and filled in, so there was no longer a height differential 

at that location.”

Dennis Stahl, vice-president of POC, also testified in the Albillos’ case-in-chief. 

Stahl stated that at the time of the original lease, parcel 21A (the sidewalk strip next to 

the road) was designated for use as a pedestrian thoroughfare for access to the premises. 

He also testified during cross-examination by POC’s counsel that POC operated as “a 

middle man” who leased the property from the City and “we in turn, lease our entire 

estate out to various sub tenants. [Sic.] In the case of Pan Pacific [Village], it would be 

the Chos. . . .” The Albillos did not introduce any evidence of any sublease from POC 

during their case-in-chief. 

E. Nonsuit Proceedings

The Albillos rested on March 4, 2014. POC immediately moved for nonsuit, 

arguing that the Albillos had failed to present evidence of actual notice of the dangerous 

condition. The parties argued about the interpretation of the lease documents and the 

cross-hatching on Exhibit A (the harbor map depicting the leased premises). The court 

noted that Exhibit A “isn’t at all clear,” and announced it was going to recess the trial and 

call Dennis Stahl as the person most knowledgeable about the lease to testify further 

regarding the extent of the lease and sublease. The court indicated that if the evidence 

showed the property was “in the hands of the Chos and was, in fact, subleased to the 

Chos . . . , then I think I have to grant the motion for nonsuit, because I don’t think there 

is evidence of actual knowledge.”

The nonsuit hearing resumed the following day. Outside the presence of the jury, 

Stahl testified that the cross-hatched area on Exhibit A included both parcels 13 and 21A 

and that POC’s intent was to sublease everything it received from the City to the Chos. 

He also noted that there were structures built as part of the Pan Pacific Village that 

extended into parcel 21A, including the roof of a decorative entryway that extended all 

the way to the street. 

The trial court granted the nonsuit. First, the court interpreted the lease documents 

as subleasing all the property leased by POC to the Chos, including the sidewalk in parcel 
8

21A. The court concluded that there was no other reasonable reading of the lease 

documents, the amendments, and Stahl’s undisputed testimony regarding the parties’

intent. The court then found that the Albillos had presented no evidence from which a 

jury could find that POC had actual knowledge of a dangerous condition at the time of 

the accident. 

The Albillos appealed the entry of judgment following the nonsuit. In our prior 

opinion, we affirmed the judgment, concluding that “the trial court correctly held that the 

Albillos were required to prove POC had actual notice of the dangerous condition.”

(Prior opinion at p. 25.) In examining the evidence de novo, we determined that “the 

reasonable interpretation of the sublease as amended was that POC intended to transfer 

possession of the entire area of Pan Pacific Village, including the entry where Oscar fell, 

to the Chos,” and further that the “Chos were in possession at the time of the fall and had 

maintained the area since their tenancy began.” (Id. at pp. 24-25.)

F. Doe Amendments and Motion to Strike

We now turn to the amendments giving rise to the instant appeal. As detailed 

above, at the close of proceedings on March 4, 2014, the trial court indicated it was 

inclined to grant POC’s nonsuit motion, but continued the hearing to the following day to 

hear additional testimony and argument. Later that same afternoon, the Albillos filed 

form amendments to their complaint, substituting Sammyeon,11 Sam Cho, and Sung Cho 

as Does 1, 2, and 3, respectively. 

On May 29, 2014, the Chos and Sammyeon moved to strike the Doe amendments, 

supported by a declaration from Bordin-Wosk. They argued that the Albillos had 

unreasonably delayed in amending their complaint, as plaintiffs had known of the Chos’

existence and role as sublessees for several years, including from “initial written 

discovery,” from POC’s cross-complaint against the Chos, and from the lease documents, 

which they claimed had been provided in February 2013. The Chos and Sammyeon 

further claimed that they had been prejudiced by the delayed amendment, noting that “20 

 

11Sammyeon is not a party to this appeal. Its relationship to the Chos or to the 

property is unclear, but is not material to the issues presented here.
9

depositions” had been taken while the Chos were not parties to the action, that experts for 

the Albillos had inspected the premises on multiple occasions, and that the litigation had 

progressed through the Albillos’ case-in-chief. The Albillos opposed the motion, arguing 

the Chos and Sammyeon had failed to establish unreasonable delay or prejudice. The 

Albillos and their counsel maintained that they “consistently believed that [the subleases] 

evidenced that the area where Mr. Albillo fell and was injured had not been subleased to 

the Chos.”

At the hearing on November 18, 2014, the court noted it would proceed on the 

motion, captioned as a motion to strike, as a motion to dismiss the Doe defendants. The 

court stated there was “no question” the delay in amendment was unreasonable, as the 

Albillos “had plenty of time to bring in these defendants, in fact, knew of the defendants 

and knew of their relationship to the case. . . . [T]hey certainly had reason to know that 

these defendants were the sublessor of the property.”

The court next questioned Bordin-Wosk, again representing the Chos, to articulate 

the prejudice suffered. Bordin-Wosk stated that if the Chos had been timely added as 

defendants, they would have been able to participate in discovery when it was conducted 

several years prior to trial, including questioning deposition witnesses “as to issues 

directly affecting the Chos,” would have likely moved for summary judgment or taken 

other steps “back in 2012, 2013 . . . to address their issues.” He also pointed out that the 

“condition of the property has now long changed.”

The court then turned to Blumberg, asking him to address the argument that if the 

Chos had been brought in earlier “they would have been in a better position to 

strategically place themselves vis a vis Ports O’Call, and by having exhausted litigation 

[against POC] you get to start new against the new defendant, that puts them at a strategic 

disadvantage, therefore prejudices them.” Blumberg argued that defendants had not 

demonstrated any prejudice. The court then commented that “by virtue of the delay, the 

property has changed [and] memories fade,” noting that it had “been two years. All 

property changes over two years.” Blumberg responded “Granted. Hard to argue that.” 

He then contended that “the case was competently worked up” and the only issues in 
10

dispute were whether there was a dangerous condition at the site of the fall and whether 

that property was subject to the sublease, which was “a question of contract 

interpretation.”

The court next pointed out that it had “decided” that the sublease to the Chos 

covered the property at issue and “the Chos didn’t get to litigate” that point. To that end, 

the court asked Blumberg, “isn’t that prejudicial to the Chos? What are the chances I’m 

going to give you two different rulings?” The court continued, “Look, prejudice 

sometimes is not manifest. There isn’t one question that [the Chos attorney, had they had 

one at the time] might have asked at a deposition that would matter? There’s not an 

inspection that they may have done? There’s not an expert they might have hired? . . . . 

And we’ve gone through a trial . . . through the plaintiff’s case in chief. But still all of 

that has happened without them, decisions have been made that may very well prejudice 

their interests. Then there is the almost presumed prejudice . . . memories do fade, 

property does change.” The court again noted that the Albillos were attempting to bring 

in the Chos “two years after you could have.” Blumberg responded that “their analysis of 

the leases is such” that he and plaintiffs “do[] not believe and continue[] not to believe 

[the Chos] are probably liable.”

Turning to Sammyeon, Blumberg argued there was “no evidence that plaintiffs 

knew about Sammyeon, Inc. as a party that was probably liable.” Bordin-Wosk 

acknowledged that Sammyeon was not named as a cross-defendant or listed as a 

sublessor of the property. Neither counsel could respond to the court’s further questions 

regarding what Sammyeon was or its relationship to the Chos or the property. 

The court granted the motion as to the Chos and denied it as to Sammyeon, 

“because nobody knows who they are.” With respect to the Chos, the court found that 

the issue of unreasonable delay was “simple,” as “they were a party previously. 

Plaintiff[s] could have brought them in,” and were “certainly put on notice” that “they 

should have,” but “no one did.”

The Albillos timely appealed from the entry of judgment. 
11

DISCUSSION

A. Legal Principles

Section 474 provides in part: “When the plaintiff is ignorant of the name of a 

defendant, he must state that fact in the complaint . . . and such defendant may be 

designated in any pleading or proceeding by name, and when his true name is discovered, 

the pleading or proceeding must be amended accordingly. . . .” “The purpose of section 

474 is to enable a plaintiff who is ignorant of the identity of the defendant to file his 

complaint before his claim is barred by the statute of limitations. There is a strong policy 

in favor of litigating cases on their merits, and the California courts have been very 

liberal in permitting the amendment of pleadings to bring in a defendant previously sued 

by fictitious name. [Citations.]” (Barrows v. American Motors Corp. (1983) 144 

Cal.App.3d 1, 7 (Barrows).) “When the complaint is amended to substitute the true name 

of the defendant for the fictional name, the defendant is regarded as a party from the 

commencement of the suit.” (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946.)

Under section 474, the relevant inquiry “is what facts the plaintiff actually knew at 

the time the original complaint was filed.” (General Motors Corp. v. Superior Court

(1996) 48 Cal.App.4th 580, 588 (General Motors).) “The lack of knowledge of the true 

name of the defendant . . . must be ‘real and not feigned.’ [Citation.]” (Munoz v. Purdy, 

supra, 91 Cal.App.3d at p. 947.) Even where a plaintiff was truly ignorant of a 

defendant’s identity at the time of the original complaint, “a defendant named in an 

action by a Doe amendment under section 474 may challenge the amendment by way of 

an evidence-based motion,” showing first, that plaintiff “unreasonably delayed” in filing 

the amendment after learning of defendant’s identity, and second, that “‘defendant 

suffered prejudice from any such delay.’” (A.N. v. County of Los Angeles (2009) 171 

Cal.App.4th 1058, 1066 (A.N.), quoting Barrows, supra, 144 Cal.App.3d at pp. 7-10.)

We review the factual findings made by the trial court to determine if they are 

supported by substantial evidence. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1169; 

Westfour Corp. v. California First Bank (1992) 3 Cal.App.4th 1554, 1558.) Under this 
12

standard, we resolve all conflicts in the evidence and draw all reasonable inferences in 

favor of the prevailing party. (Le v. Pham (2010) 180 Cal.App.4th 1201, 1205-1206.) 

B. Unreasonable Delay

The Albillos contend they did not unreasonably delay in adding the Chos as Doe 

defendants because they were not aware that the sublease to the Chos included the site of 

Oscar’s accident until Stahl’s testimony during their case-in-chief. The trial court 

disagreed, and we conclude that substantial evidence supports that finding.

The phrase “ignorant of the name of a defendant” in section 474 is broadly 

interpreted to mean not only ignorance of the defendant’s identity, but also ignorance of 

the facts giving rise to a cause of action against that defendant. “[E]ven though the 

plaintiff knows of the existence of the defendant sued by a fictitious name, and even 

though the plaintiff knows the defendant’s actual identity (that is, his name) the plaintiff 

is ‘ignorant’ within the meaning of the statute if [plaintiff] lacks knowledge of that 

person’s connection with the case or with [plaintiff’s] injuries. [Citations.]” (General 

Motors, supra, 48 Cal.App.4th at pp. 593–594, fn. omitted; see also Marasco v. 

Wadsworth (1978) 21 Cal.3d 82, 88 [“‘The plaintiff is deemed “ignorant of the name” if 

he knew the identity of the person but was ignorant of the facts giving him a cause of 

action against the person [citations].’ [Citation.]” (Wadsworth at p. 88.) “The pivotal 

question in this regard is ‘did plaintiff know facts?’ not ‘did plaintiff know or believe that 

she had a cause of action based on those facts?’ [Citation.]” (See also Scherer v. Mark

(1976) 64 Cal.App.3d 834, 841 [no amendment where plaintiff “knew all of the basic 

facts constituting her alleged cause of action when she first filed her original 

complaint”].)12

 

12At oral argument, counsel for the Albillos suggested a heightened standard 

should apply to determine when a plaintiff must seek a Doe amendment, citing language 

from Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 363 that amendment is 

not necessary until the plaintiff “has knowledge of sufficient facts to cause a reasonable 

person to believe liability is probable.” The Albillos failed to raise this point until oral 

argument and we therefore deem it forfeited. (See Kinney v. Vaccari (1980) 27 Cal.3d 

348, 356, fn. 6 [“An appellate court is not required to consider any point made for the 
13

The record before us does not establish that the Albillos knew of the Chos’ 

identity when the Albillos filed their original complaint. Thus, our analysis turns on 

when the Albillos gained the knowledge to trigger their duty to timely amend under 

section 474. The parties agree that the relevant fact giving rise to a cause of action is that 

the Chos subleased the portion of the POC’s property on which the accident purportedly 

occurred—the sidewalk of parcel 21A. We conclude there is substantial evidence in the 

record that the Albillos were aware of the Chos’ identity and connection to their claims as 

possible sublessors of the site of the accident at the time of the cross-complaint in July 

2012. 

Specifically, it is clear from the Albillos’ March 2012 complaint that they were 

aware that a sublease might potentially cover the property at issue, as they included 

allegations against the Doe defendants as “sub-lessees, tenants, and others in possession 

of, controlling, or having an interest in the property” and alleged that POC was “the 

master lessee, landlord and operator” of the property. Then, in July 2012, POC filed its 

cross-complaint against the Chos, specifically seeking indemnification under the sublease 

to the Chos and alleging that any damages suffered by the Albillos were the result of 

“actions or inaction” by the Chos. At that point, the Albillos knew of the Chos’ identity 

and connection to their claims as alleged sublessees of the portion of the property where 

Oscar fell. Those facts provided the same basis for a negligence claim against the Chos 

as the claim the Albillos alleged against POC in their original complaint. Because the 

Albillos possessed the facts giving rise to a cause of action against the Chos, their duty to 

amend under section 474 was triggered. 

 

first time at oral argument”]; Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1311, fn. 

4 [“[C]ontentions raised on appeal for the first time at oral argument are generally 

waived.”].) In addition, we disagree that Dieckmann (and subsequent cases citing the 

same language) establishes a different standard. (See McClatchy v. Coblentz, Patch, 

Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 377-379 (Jones, P.J., concurring).) Nor 

are we persuaded that the Albillos would prevail even under the heightened standard they 

belatedly assert.
14

Even assuming the Albillos did not possess sufficient knowledge to require 

amendment based on the cross-complaint, they certainly gained such knowledge well 

before trial began in 2014. For example, in mid-2013, the Chos filed a joinder to POC’s 

summary judgment motion, acknowledging that they were sublessees of POC but arguing 

that Oscar fell on property not covered by either the Master Lease or any sublease. 

Further, while the parties disagree as to when exactly the Albillos received copies of the 

lease documents at issue, there is no dispute that they had them prior to trial. Thus, prior 

to trial, the Albillos specifically knew that the language of the sublease to the Chos 

included all common areas and knew that POC contended that the Chos were liable as 

sublessees of the site of the injury. They did not seek to amend their complaint to add the 

Chos based on this information; instead, they elected to proceed to trial solely against 

POC and filed a motion in limine to exclude all evidence of any sublease from trial. 

Their subsequent attempt to add the Chos as defendants after the court tentatively granted 

POC’s nonsuit was properly barred as untimely.

In fact, the Albillos do not deny that they knew prior to trial that the Chos were 

sublessors, or that they had the lease documents. Instead, they claim their interpretation 

of the leases led them to believe the Chos’ sublease did not cover the sidewalk and they 

did not discover otherwise until Stahl testified at trial. But their subjective belief 

regarding whether they had a claim is not the measure of compliance with section 474; 

rather, their knowledge of the facts at issue controls. (See General Motors, supra, 48 

Cal.App.4th at pp. 593–594; Hazel v. Hewlett (1988) 201 Cal.App.3d 1458, 1464-1465.)

We reached a similar conclusion in Miller v. Thomas (1981) 121 Cal.App.3d 440. 

In Miller, the plaintiff in a personal injury action arising from a car accident knew the 

identity of the other driver, but made a tactical decision to sue only that driver’s

employer. (Id. at p.442.) The plaintiff later amended the complaint to add the driver as a 

Doe defendant. (Id. at p.443.) The trial court found plaintiff’s amendment was untimely 

pursuant to section 474 and we affirmed, noting the plaintiff knew the driver’s identity 

and knew from the employer’s answer that the it disputed that the driver had been acting 

in the course and scope of his employment. (Id. at p. 445.) As such, the declaration by 
15

plaintiff’s attorney emphasizing “his belief that the [employer] could be held liable is no 

more than an affirmation of his tactical choice,” not a basis to delay amendment. (Ibid.) 

Similarly, here, the Albillos’ belief regarding the legal interpretation of the sublease did

not insulate them from their failure to timely add the Chos as defendants once they knew 

of the Chos’ involvement as sublessees of the property.13 

In short, substantial evidence supports the trial court’s conclusion that the Albillos 

knew of the Chos and their relationship to their claims as sublessees, and therefore “were 

certainly put on notice” of facts giving rise to a claim against the Chos as early as 2012, 

when the Chos were added as cross-defendants. Having reached that conclusion, the trial 

court could reasonably find that the Albillos unreasonably delayed in amending to add 

the Chos as defendants only after the conclusion of their case-in-chief, and only after it 

was clear the trial court intended to grant POC’s nonsuit. 

C. Prejudice

The Albillos also argue that the Chos failed to make a sufficient showing that they 

would be prejudiced by the belated amendment. We disagree, and conclude the record 

contains substantial evidence in support of the trial court’s finding of prejudice.

A defendant’s challenge to an amendment under section 474 must establish that 

“he or she would suffer prejudice from plaintiff’s delay in filing the Doe amendment.”

(A.N., supra, 171 Cal.App.4th at p. 1067.) Further, “‘a defendant cannot rely simply on 

the general policy of the applicable statute of limitations,’” but must instead make a 

showing of “‘specific prejudice.’ [Citation.]” (Id. at p.1066.)

 

13Stahl’s testimony on the intended scope of the sublease, given the day after the 

Albillos filed their Doe amendments, added nothing to the theory of liability on which the 

Albillos’ claim against the Chos as sublessors was premised. (See, e.g., McClatchy, 

supra, 247 Cal.App.4th at p. 374 [Doe amendment may not be “based on a later-drawn 

legal conclusion arising from the discovery of an additional fact when that fact does not 

add anything to the theory of liability apparent at the time of the original pleading”]; 

Dover v. Sadowinski (1983) 147 Cal.App.3d 113, 117-118 [amendment improper where 

plaintiff’s counsel admitted knowing defendant was involved but claimed they had “no 

idea . . . how deeply . . . he was involved”].) Notably, the Albillos continued to assert 

their interpretation of the sublease as excluding the sidewalk even after Stahl’s testimony.
16

In A.N., for example, the trial court refused to allow the plaintiff to amend his 

complaint with the true names of several Doe defendants less than one month before trial, 

stating it was “‘very concerned’” about the Doe Defendants being “‘brought into this 

spinning vortex shortly before trial.’” (A.N., supra, 171 Cal.App.4th at p. 1068.) 

Division Eight of this district agreed, affirming the trial court’s implied finding of 

prejudice on the basis that “it does not require speculation to recognize that a party who is 

drawn into litigation on the eve of trial will face difficulties in preparing a defense in such 

short order.” (Ibid.)

Here, the potential for prejudice to the Doe defendants is even greater. The Chos 

and the trial court articulated several types of prejudice flowing from the Albillos’ midtrial Doe amendments; we will examine each in turn. First, the Chos contend that there 

were 20 depositions taken after the Chos were dismissed from the cross-complaint. This 

contention lacks supporting evidence in the record. The only evidence regarding 

depositions is the paragraph in Bordin-Wosk’s declaration discussing a single deposition 

of a City employee taken in July 2013. Thus, the Chos have offered evidence of only one 

deposition, rather than 20, at which they were not present or represented, in support of 

their argument that they could have asked questions pertinent to their liability.14

Second, the Chos argued they would be prejudiced because of their inability to 

inspect the area of the accident (or retain experts to do so) until many years after its 

occurrence, and several years after the Albillos’ experts had the opportunity to do so. 

The trial court presumed that the property had changed with the passage of several years. 

In fact, such a presumption was unnecessary, as the Albillos’ expert testified at trial that 

 

14We reject the Albillos’ suggestion that the Chos suffered no prejudice from any 

of the litigation proceedings conducted in their absence because Bordin-Wosk 

represented POC during the proceedings and then later represented the Chos. Clearly, 

POC and the Chos likely had some interests in alignment with each other but others that 

were in direct conflict, most notably the issue of which party possessed the property and 

therefore potentially owed a higher duty of care to the Albillos.
17

the site of the accident had since been repaired.15 The fact that the belated amendment 

deprived the Chos of notice of the need to inspect the site of the alleged dangerous 

condition (other than their time as cross-defendants at the very beginning of the case) 

until more than four years after the accident, and after the condition had been repaired, is 

likely sufficient to establish prejudice standing alone.

Third, as the trial court pointed out, it issued rulings adverse to the Chos’ interests 

without their ability to participate. Crucially, the court relied on uncontradicted 

testimony offered by POC as to the intent and custom of the parties to the sublease and 

concluded that the Chos were the tenants in possession of parcel 21A. We affirmed that

conclusion in our prior opinion. Further, the court’s finding that the Chos leased the area 

where the accident occurred would allow the Albillos to use the lower standard of 

constructive notice, rather than actual notice, of the dangerous condition in pursuing 

liability against the Chos. Even assuming the Chos could successfully argue against the 

application of the law of the case doctrine16 (a proposition neither party addresses on 

appeal), they nevertheless would be prejudiced because they were unable to offer any 

evidence or argument as part of the initial determination of the scope of the sublease. 

Accordingly, the Chos adequately demonstrated that they would suffer prejudice if 

they were added as defendants four years after the injury occurred and after the site had 

been repaired and burdened with a trial court ruling directly adverse to their interests. 

Substantial evidence supports the trial court’s dismissal of the Doe amendments.

 

15While the Chos did not cite this testimony in their moving papers, their notice of 

motion indicated reliance on all files in the action; thus, the evidence was properly before 

the court. (See Larsen v. Johannes (1970) 7 Cal.App.3d 491, 496.)

16(See, e.g., People v. Murtishaw (2011) 51 Cal.4th 574, 589 [“‘“[W]here, upon an 

appeal, the [reviewing] court, in deciding the appeal, states in its opinion a principle or 

rule of law necessary to the decision, that principle or rule becomes the law of the case 

and must be adhered to throughout its subsequent progress. . . . ”’ [Citation.]”].)
18

DISPOSITION

The judgment is affirmed. The Chos are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.