Filed 1/28/14 County of San Diego v. Pointe Communities of San Diego CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

COUNTY OF SAN DIEGO,

Plaintiff and Appellant,

v.

POINTE COMMUNITIES OF SAN DIEGO, 

INC., et al.,

Defendants and Respondents.

 D063074

 (Super. Ct. No.

 37-2009-00069442-CU-BC-EC)

APPEAL from a judgment of the Superior Court of Orange County, Luis A. 

Rodriguez, Judge. Affirmed.

Thomas E. Montgomery, County Counsel, and Thomas Deák, Senior Deputy 

County Counsel, for Plaintiff and Appellant.

George Edward Hurley; McKenna Long & Aldridge, Charles A. Bird and 

Michelle A. Herrera for Defendants and Respondents.

In 1992, as one of the conditions for approving a Final Map for a real estate 

development, County of San Diego (County) entered into an agreement with Pointe 

Communities of San Diego, Inc. (PCSD) and Pointe San Diego Residential Community, 
2

L.P. (Pointe Residential) requiring PCSD and Point Residential (together Pointe) to 

construct specified street improvements (the street improvement agreement), and also 

entered into two other agreements requiring Pointe to build certain water and sewer 

improvements (collectively the Subdivision Improvement Agreements). The Subdivision 

Improvement Agreements required completion of the improvements within 730 days of 

County's approval of the Final Map, but permitted County's Board of Supervisors (Board) 

to extend the time for completing the required improvements.

During the next 11 years, County granted Pointe a series of extensions until 

January 2005 to complete the improvements required by the Subdivision Improvement 

Agreements. In April 2005 County's Department of Public Works (DPW) informed 

Pointe the Subdivision Improvement Agreements had expired, Pointe was in default, and 

DPW was unable at that time to recommend the Board grant further extensions.

In September 2009, more than four years after the Subdivision Improvement 

Agreements expired and County declared Pointe in default, County filed its complaint 

alleging Pointe breached its obligations under the Subdivision Improvement Agreements

and seeking damages and declaratory relief. Pointe moved for summary judgment, 

asserting County's claims were time-barred by the four-year statute of limitations 

applicable to claims for breach of written contracts. County opposed the motion, 

asserting there were triable issues of fact whether a later 2002 agreement between County 

and Pointe (the Tri-Party Agreement) and a 2006 amendment to the Tri-Party Agreement 

(the Amended Agreement) were intended to extend the time for performing the 

Subdivision Improvement Agreements. County argued, because the 2009 complaint was 
3

filed within four years of the 2006 Amended Agreement, County's action was not timebarred. County alternatively argued, to the extent the Tri-Party Agreement and Amended 

Agreement were collateral to (and did not extend the time for performing) the 

Subdivision Improvement Agreements, County should be granted leave to amend to 

assert claims based on breach of the Tri-Party Agreement and Amended Agreement. The 

trial court rejected County's claim that the Tri-Party Agreement extended the time for 

performing the Subdivision Improvement Agreements, and found County's claims as 

pleaded were therefore time-barred. The court also rejected County's request for leave to 

amend, and entered judgment on the complaint in favor of Pointe. This appeal by County 

followed.

I

FACTUAL CONTEXT

A. The Subdivision Improvement Agreements

In 1990, the Board approved a Specific Plan Amendment (SPA 88-001) for a 

mixed use development in Spring Valley, along with a Tentative Map (TM-4828-1) and a 

series of public improvements described on TM-4828-1. The approval included a 

condition that, before a Final Map could be approved, Pointe was required to construct 

significant road improvements, including improvements to a section of Jamacha 

Boulevard from Huron Road to Spring Glen Lane to provide an access road to the future 

State Route 54 freeway.

In early 1992 the Board approved the Final Map and Pointe entered into the 

Subdivision Improvement Agreements obligating Pointe to perform the street, water and 
4

sewer improvements required by TM-4828-1, and requiring bonds to secure Pointe's 

performance of its improvement obligations.1 Under the Subdivision Improvement 

Agreements, Pointe was required to complete the specified improvements within 730 

days of the Board's approval of Final Map 4828-1. However, the Subdivision 

Improvement Agreements provided that, if necessary, the Board could grant extensions 

(either unilaterally or on Pointe's request) to complete the improvements.

Between 1992 and 1994, Pointe completed some of the improvements. In 1994, 

County granted Pointe a two-year extension of time to complete the improvements, and 

in 1999 the Board approved another extension for completion of the improvements for 

TM-4828-1. In 2003, the Board approved another extension for completion of the 

improvements for TM-4828-1; under this extension, Pointe's time to complete the 

improvements required by the Subdivision Improvement Agreements was extended to 

January 29, 2005.

On April 15, 2005, County wrote a letter to Pointe with a reference line stating 

"Expiration of Improvement Agreement for County of San Diego Tract TM-4828-1, 

Final Map No. 12924." That letter stated, among other things, that "[a]fter reviewing the 

file for the above noted project, the Department of Public Works (DPW) has identified 

that this project's Improvement Agreement is in default due to the original agreements 

 

1 The street improvement agreement covering "Streets, Drainage and Monuments 

Only" was secured by a bond issued by Lumbermens Mutual Casualty Company, and the

agreements covering "Water Only" and "Sewer Only" were secured by bonds issued by 

American Motorists Insurance Company.
5

expiring on January 29, 2005. DPW is unable to recommend an extension to the Board 

of Supervisors at this time."2

B. The Tri-Party Agreement

In early 2000, three years before the Board approved the last extension for Pointe 

to complete the improvements required by the Subdivision Improvement Agreements, 

County began meeting with representatives of Pointe (together with another developer, 

Atlas Homes) to discuss ways to improve Jamacha Boulevard and fund those 

improvements. In 2001 County made a demand against the bonding company based on 

Pointe's failure to widen Jamacha Boulevard as required by the Subdivision Improvement 

Agreements. A few months later, County, Pointe, and American Motorists Insurance 

Company (Surety) entered into the Tri-Party agreement.

The Tri-Party Agreement contained a series of recitations that described the 

interests of both Pointe and Surety in agreeing to the obligations it imposed. The TriParty Agreement recited that Pointe had two proposed apartment projects before County 

for approval, "which approval cannot be given until construction of the road 

 

2 The letter went on to list four "items that need to be resolved before DPW can 

consider recommending an extension," including that (1) the current owners of the 

property appeared to be different from the Pointe entities that were parties to the 

Improvement Agreement, (2) the current bonds were outdated both as to ownership and 

because changed construction costs required revised estimates and bond amounts, (3) the 

grading permit had expired five years earlier and needed to be renewed, and (4) there was 

a discrepancy in the identity of the engineer on the work. Additionally, DPW asked for 

additional information on the status of the project's compliance with current stormwater 

requirements and on what " 'substantial progress' is being made to complete the 

improvements required by the final map." DPW indicated this information would assist 

it "in determining potentials for agreement extensions."
6

improvements is assured for completion prior to occupancy of the apartments" and Pointe 

was willing to construct those improvements prior to occupancy of these projects. As to 

Surety, which agreed to undertake the obligation to provide financing for construction of 

the road improvements required by the Tri-Party Agreement, the agreement recited that

Surety had issued a bond guaranteeing completion of road improvements required by 

TM-4828-1, the improvements had not been constructed and a demand on the bond had 

been made, and Surety was willing to finance the road improvements required by the TriParty Agreement in exchange for a right to be reimbursed by Pointe from the four 

properties then under Pointe's control that would be benefitted by the road 

improvements.3 The Tri-Party Agreement provided Pointe would construct road 

improvements to Jamacha Boulevard "as required by TM4828-1 in accordance with plans 

to be resubmitted for approval by [the DPW]," and Surety would deposit with County 

 

3 The Tri-Party Agreement also specified County would recommend, as a condition 

to any Specific Plan Amendment or tentative map for a fifth property benefitting from 

these road improvements (the Dictionary Hill-Panorama Ranch property), the fifth 

property contribute its fair share of the costs as reimbursement to Surety. The Tri-Party 

Agreement also required Pointe to reimburse Surety 8 percent of the total construction 

costs when building permits were issued for phase I of Pointe's LakeView Apartment 

project, another 7 percent when building permits were issued for phase II, another 11 

percent when building permits were issued for Pointe's Mountaintop Condominium 

project, and another 38 percent when building permits were issued for Pointe's 

Commercial Complex. The Tri-Party Agreement also provided that, if Pointe acquired 

the Dictionary Hill-Panorama Ranch property, Pointe would reimburse Surety the 

remaining 36 percent of the total construction costs upon approval of a Specific Plan 

Amendment or tentative map for that property, but if Pointe did not acquire the 

Dictionary Hill-Panorama Ranch property, County would recommend (as a condition to 

any Specific Plan Amendment or tentative map for that property) that a fee be imposed 

on that property to pay its fair share of the construction costs that would then be 

reimbursed to Surety.
7

funds to pay for those improvements and be entitled to reimbursement from Pointe for 

those outlays.4 County also required, as a condition to approval of Pointe's apartment 

projects, that the road improvements to Jamacha Boulevard be completed before 

occupancy permits would be issued, and specified it would not withhold approval of the 

projects due to road conditions on Jamacha Boulevard but would withhold occupancy 

permits until the road improvements were finished. The Tri-Party Agreement contained 

no express references to the Subdivision Improvement Agreements and (apart from the 

references to TM 4828-1 and to Surety's previously issued bond) contained no references

to any facts relating to Pointe's 1992 undertakings.

In June 2002, DPW received Pointe's revised plans for the work to Jamacha 

Boulevard contemplated by the Tri-Party Agreement. The revised plans (processed under 

County Permit CG 4476) were deemed deficient in numerous respects and, after a 

lengthy review process involving numerous changes to and iterations of the planned 

work, Pointe's plans for the work to Jamacha Boulevard contemplated by the Tri-Party 

 

4 The parties also agreed Surety's exposure on the bond it previously issued as 

security for the 1992 "Streets, Drainage and Monuments Only" Improvement Agreement 

would be reduced by all amounts deposited by Surety to finance the road improvements 

covered by the Tri-Party Agreement. The parties also agreed Surety's bond issued for the 

1992 "Streets, Drainage and Monuments Only" Improvement Agreement would "remain 

in effect" except to the extent it was "reduced by sums deposited" by Surety to pay for 

these road improvements. The parties also agreed any portion of the funds deposited by 

Surety to finance these road improvements "determined to be attributable" to Surety's 

Water Improvements Bond would reduce the penal sum of that bond, and also agreed 

Surety would have "no obligation" with respect to any sewer improvements. 
8

Agreement were approved by County in August 2004.5 After approval of the plans 

submitted under permit CG 4476, Pointe began working on the improvements covered 

under CG 4476 and the Tri-Party Agreement. 

C. The 2006 Amendment to the Tri-Party Agreement

In March 2006, nearly one year after DPW informed Pointe the Subdivision 

Improvement Agreements had expired and Pointe was in default, Pointe wrote to County 

to explore the possibility of amending the Tri-Party Agreement to find ways to fill a 

funding gap for the improvements contemplated by the Tri-Party Agreement. To fill the 

funding gap, which apparently arose because changes in the scope of work and delays 

had increased the construction costs by preventing timely completion of the Jamacha 

Boulevard improvements, County and Pointe in November 2006 entered into the 

Amended Agreement concerning completion of the improvements contemplated by the

Tri-Party Agreement.

The Amended Agreement recited that Pointe had three projects under 

construction, and the intent of the parties had been to insure completion of Jamacha 

 

5 The revised plans processed under CG 4476 called for road improvements to 

Jamacha Boulevard that differed from the original plans for road improvements around 

Jamacha Boulevard under the 1992 Subdivision Improvement Agreements. The original 

plans for Jamacha Boulevard apparently contemplated Jamacha Boulevard would be 

improved to serve as a frontage road for the planned State Route 54 extension. However, 

by this time, the planned State Route 54 extension was still not funded with sufficient 

rights of way to allow construction of the original improvements contemplated by the 

1992 Subdivision Improvement Agreements, but traffic conditions on Jamacha Boulevard 

had deteriorated to level F and necessitated that an emergency measure be implemented 

to temporarily widen Jamacha Boulevard to four lanes until State Route 54 was put in 

place. The plans processed under CG 4476 were to build this stop-gap road.
9

Boulevard prior to occupancy of the residences, but circumstances beyond Pointe's 

control "prevented completion of Jamacha [Boulevard] prior to the scheduled closing of 

residential units, necessitating the release of occupancies[.]" The Amended Agreement 

provided (1) Pointe would construct the road improvements "as required by TM4828-1 

and [CG] 4476 in accordance with the plans approved by" DPW, (2) funding (in addition 

to Surety's bond as contemplated by the Tri-Party Agreement) would be secured by 

Pointe's agreement to deposit with County $5,952 per unit from the first units sold from 

its projects "to secure the remaining, unfunded portion of Jamacha [Boulevard's]

construction costs to a maximum of $500,000[,]" (3) County agreed it would allow

certain occupancy permits to be "issued prior to substantial completion of Jamacha 

[Boulevard,] including four working lanes, to the satisfaction of" DPW, and (4) Pointe 

agreed it would seek "no further occupancy permits or enter into any sales agreements or 

leases for the remainder of its property until the improvements to Jamacha Boulevard are 

substantially completed, including four working lanes, to the satisfaction of" DPW."

County issued the occupancy permits, Pointe sold units in its project, and Pointe 

deposited approximately $260,000 with County from these sales. Pointe continued 

working on the Jamacha Boulevard improvements and hoped to complete the 

improvements by mid-March 2007. However, by April 2007, all work on the 

improvements had stopped. Between December 2007 and September 2009 

representatives of County, Pointe and Surety held numerous meetings and exchanged 

correspondence regarding how to complete the required improvements. However, the 
10

parties were unable to resolve the dispute and County commenced this action against 

Pointe on September 22, 2009.

D. The Complaint and Cross-complaint

County's complaint pleaded claims against Pointe alleging it had breached its 

obligations under the Subdivision Improvement Agreements, which it defined as the 1992 

agreements relating to street improvements, water improvements and sewer 

improvements, and sought damages and declaratory relief. County's complaint contained 

factual allegations pertaining to the Tri-Party Agreement and the Amended Agreement

but pleaded no separate claims for breach of those agreements.

Pointe Residential cross-complained against County asserting County had 

breached the Tri-Party Agreement and the Amended Agreement by not releasing funds 

escrowed for the improvements required by those agreements, by unilaterally increasing 

the scope and costs for those improvements, and by not seeking contribution from the 

owner of the Dictionary Hill property.

E. The Summary Judgment Motion

Pointe moved for summary judgment, asserting County's causes of action were 

time-barred by the four-year statute of limitations applicable to claims for breach of 

written contracts. Pointe alleged the four-year statute of limitations under Code of Civil 

Procedure section 337, subdivision (1), applied to actions on the Subdivision 

Improvement Agreements, the Board did not extend Pointe's time to perform the 

Subdivision Improvement Agreements beyond the January 29, 2005, expiration date on 

those agreements, and therefore County's complaint was time-barred.
11

County did not dispute the applicable statute of limitations. However, it 

contended summary judgment was improper because the parties intended to extend the 

time for performing the obligations of the Subdivision Improvement Agreements when 

they entered into the Tri-Party Agreement and the Amended Agreement, and the lawsuit 

was timely because it was filed within four years of the date the Amended Agreement 

was executed. County alternatively asserted the Tri-Party Agreement and the Amended 

Agreement constituted independent contractual undertakings to construct the Jamacha 

Boulevard improvements, and its complaint, when liberally construed, stated claims for 

breach of the Tri-Party Agreement and the Amended Agreements. Even if it did not, 

County should be granted to leave to amend the complaint to state claims for breach of 

the Tri-Party Agreement and the Amended Agreement.6

The court, after hearing oral argument, confirmed its tentative ruling and granted 

the motion for summary judgment. It first noted the pleadings defined the boundaries of 

the issues to be resolved on summary judgment, and a party cannot avoid summary 

judgment either by presenting new and unpleaded issues in opposing a summary 

judgment motion or by presenting extrinsic evidence raising issues of facts on issues 

beyond those pleaded in the complaint. The court then concluded Pointe's evidence 

 

6 County also asserted the Tri-Party Agreement and the Amended Agreement 

constituted an "acknowledgement" of Pointe's obligations to perform the Subdivision 

Improvement Agreements, and such acknowledgement began a new period of limitations 

within which to sue on the Subdivision Improvement Agreements. The trial court 

rejected this argument and, because County has not resurrected this argument on appeal, 

we deem it abandoned. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 

33 Cal.3d 211, 216, fn. 4.) 
12

established (1) the complaint pleaded only claims based on the 1992 Subdivision 

Improvement Agreements, (2) those agreements lapsed on January 29, 2005, and (3) by 

April 15, 2005, County had decided not to grant further extensions of the Subdivision 

Improvement Agreements and had determined Pointe was in default on those agreements. 

The court concluded Pointe met its burden of showing the County's complaint was 

required to be filed by January 29, 2009, and, because it was not filed until September 

2009, Pointe met its burden of establishing County's claims were time-barred.

The court rejected County's effort to raise triable issues of fact on whether the TriParty Agreement and the Amended Agreement extended the time for performing the 

obligations of the Subdivision Improvement Agreements. First, the court concluded that 

claim was outside the scope of County's claims as pleaded, because the complaint did not 

assert its causes of action were based on the Tri-Party Agreement or the Amended 

Agreement. Moreover, the court noted neither the Tri-Party Agreement nor the Amended 

Agreement purported to extend the time for performance of the obligations imposed by 

the Subdivision Improvement Agreements.

The court also rejected County's alternative assertion-- summary judgment was 

improper because the complaint stated claims based on the independent contractual 

undertakings embodied in the Tri-Party Agreement and the Amended Agreement--

because neither the breach of contract nor the declaratory relief causes of action were 

based on breaches of the Tri-Party Agreement or the Amended Agreement. The court 

noted the complaint, although referring to the Tri-Party Agreement and the Amended 

Agreement, specifically alleged Pointe breached the Subdivision Improvement 
13

Agreements, which it defined to include the three 1992 agreements but not to encompass 

either the Tri-Party Agreement or the Amended Agreement.

At oral argument, the court also rejected County's request for leave to amend the 

complaint to state claims based on breaches of the Tri-Party Agreement and the Amended 

Agreement as untimely. The court granted the summary judgment motion, and entered 

judgment on County's complaint in favor of PCSD and Pointe Residential and against 

County. County timely filed its notice of appeal.7

Pointe asserts (1) the appeal as to PCSD should be dismissed because no argument 

of error was raised as to PCSD, and (2) the judgment as to Pointe Residential is not 

appealable. The first argument is based on County's nomenclature in its opening brief on 

appeal: County's opening brief defined the term "Pointe" to mean Pointe Residential (and 

omitted inclusion of PCSD under the term "Pointe") and thereafter argued the judgment 

in favor of Pointe should be reversed. However, County has filed a notice of errata 

correcting this omission, and asserts that because all of its arguments applied equally to 

both PCSD and Pointe Residential, and all of those arguments have been responded to on 

the merits in the respondent's brief, no prejudice will result from permitting this 

correction. We agree, and therefore deny Pointe's motion to strike County's errata. 

Pointe also asserts the judgment as to Pointe Residential is interlocutory, and therefore is 

 

7 County has filed a request that we judicially notice certain information, i.e., that 

PCSD is a forfeited corporation. However, this plea in abatement was not interposed at 

trial, and County has cited no pertinent authority explaining the relevance this 

information might have to our evaluation of County's appeal. We deny the request for 

judicial notice.
14

not appealable, because its cross-complaint against County remains unresolved. 

Although Pointe is correct as to the interlocutory nature of the appeal as to Pointe 

Residential, this court has the power to treat a premature appeal as a writ petition (Olson 

v. Cory (1983) 35 Cal.3d 390, 399-401), and Pointe Residential has affirmed it has no 

objection to this court doing so here. The interests of judicial economy will be served by 

resolving the issues raised both as to PCSD (in whose favor an appealable judgment was 

entered) and Pointe Residential (in whose favor only a nonappealable interlocutory 

judgment exists), because the issues raised are identical as to both PCSD's appealable 

judgment and Pointe Residential's nonappealable judgment. We treat the appeal as to 

Pointe Residential as a petition for writ of mandate rather than dismissing it. (G. E. 

Hetrick & Associates, Inc. v. Summit Construction & Maintenance Co. (1992) 11 

Cal.App.4th 318, 323-324.)

II

APPLICABLE LAW

A. Standards for Summary Judgment

When a defendant moves for summary judgment on statute of limitations grounds, 

the defendant bears the initial burden of production to demonstrate that the limitations 

period has expired. (Code Civ. Proc. § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield 

Co. (2001) 25 Cal.4th 826, 850 [the "initial burden of production [requires the defendant] 

to make a prima facie showing of the nonexistence of any triable issue of material fact"].)

"A prima facie showing is one that is sufficient to support the position of the party in 

question." (Aguilar, at p. 851.) When the party moving for summary judgment carries 
15

his initial burden of production and makes a prima facie showing of the nonexistence of 

any triable issue of material fact, "he causes a shift, and the opposing party is then 

subjected to a burden of production of his own to make a prima facie showing of the 

existence of a triable issue of material fact." (Id. at p. 850.)

Importantly, as explained in County of Santa Clara v. Atlantic Richfield Co.

(2006) 137 Cal.App.4th 292, 332, " '[t]he burden of a defendant moving for summary 

judgment only requires that he or she negate plaintiff's theories of liability as alleged in 

the complaint. A "moving party need not '. . . refute liability on some theoretical 

possibility not included in the pleadings.' [Citation.]" . . . " '[A] motion for summary 

judgment must be directed to the issues raised by the pleadings. The [papers] filed in 

response to a defendant's motion for summary judgment may not create issues outside the 

pleadings and are not a substitute for an amendment to the pleadings.' " ' [Quoting 

Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342,

second italics added by County of Santa Clara.]"

"Appellate review of a ruling on a summary judgment or summary adjudication 

motion is de novo." (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 

210.) "While resolution of the statute of limitations issue is normally a question of fact, 

where the uncontradicted facts established through discovery are susceptible of only one 

legitimate inference, summary judgment is proper." (Jolly v. Eli Lilly & Co. (1988) 44 

Cal.3d 1103, 1112.)
16

III

ANALYSIS

A. Summary Judgment on the Complaint Was Proper

County apparently concedes its claims arising from Pointe's alleged breach of the 

Subdivision Improvement Agreements would be barred by the expiration of the statute of 

limitations, and therefore summary judgment would be proper, if those agreements lapsed 

in January 2005. Pointe's showing below satisfied its initial burden of making a prima 

facie showing that the Subdivision Improvement Agreements did lapse in January 2005, 

because (1) they provided for the mode by which those agreements could be extended 

(e.g. by Board approval either unilaterally or on request of Pointe), (2) the agreements 

were extended several times in accordance with the prescribed mode, (3) the last 

extension approved by the Board specified an expiration date of January 29, 2005, and 

(4) County informed Pointe on April 15, 2005, that the Subdivision Improvement 

Agreements had expired and were in "default due to the original agreements expiring on 

January 29, 2005." The burden therefore shifted to County (Aguilar v. Atlantic Richfield 

Co., supra, 25 Cal.4th at p. 850) to produce evidence raising a triable issue of fact on 

whether, notwithstanding County's statement the Subdivision Improvement Agreements

had expired and were in default as of January 29, 2005, the Subdivision Improvement 

Agreements had not expired until some later date.

County's evidence in opposition to Pointe's statute of limitations showing was that 

the 2006 Amended Agreement was signed less than four years before County filed its 

lawsuit, from which County asserts its lawsuit was timely. County argued the 
17

Subdivision Improvement Agreements had not expired, and therefore its claims for 

breach of those agreements were not time-barred, because the time for performing the 

obligations imposed by the Subdivision Improvement Agreements was first extended by 

the Tri-Party Agreement, and thereafter was extended by the Amended Agreement, to a 

date less than four years before County's lawsuit was filed.

However, as County conceded below, neither the Tri-Party Agreement nor the 

Amended Agreement expressly extended the time for performing the obligations imposed 

by the Subdivision Improvement Agreements. To the contrary, the Tri-Party Agreement 

provided it would construct road improvements to Jamacha Boulevard "as required by 

TM4828-1 in accordance with plans to be resubmitted for approval by [the DPW]"

(italics added), and the subsequent Amended Agreement reiterated that Pointe agreed to 

"construct the road improvements to Jamacha Boulevard as required by TM4828-1 and 

[CG] 4476 in accordance with plans approved by [the DPW]" (italics added), which is 

inconsistent with an agreement to perform road improvement obligations previously

imposed by the Subdivision Improvement Agreements. Indeed, the structure of the TriParty Agreement created new obligations among its participants, rather than extending 

the time for performing obligations imposed under the 1992 Subdivision Improvement 

Agreements, because (1) the road plans had to be resubmitted, approved and permitted 

under a distinct permit (CG 4476),8 (2) the parties to the Tri-Party Agreement undertook 

 

8 Although County submitted no evidence showing the degree of similarity between 

the road improvements required by the Subdivision Improvement Agreements and the 

road improvements required by the Tri-Party Agreement, the undisputed evidence 
18

obligations apparently distinct from the obligations of Pointe under the Subdivision 

Improvement Agreements,9 and (3) the parties (when they restructured these newly 

imposed obligations in the Amended Agreement in recognition that "both [the] 

construction costs and the scope of work for the project have increased since approval of 

the original contract" (italics added)) apparently acknowledged the "project"

contemplated by the "original contract" was limited to the stop-gap emergency 

modification of Jamacha Boulevard.10 Because neither the Tri-Party Agreement nor the 

Amended Agreement contain any references to the Subdivision Improvement 

 

showed the resubmitted plans were so distinct from the previously approved plans that it 

required a resubmission of the new plans for approval and a nearly two-year review 

process before the new plans were approved, and Pointe's evidence was that the road 

improvements it agreed to build under the Tri-Party agreement were substantially 

different in scope and purpose from the road improvements required by the Subdivision 

Improvement Agreements. (See fn. 5, ante.)

9 Pointe agreed to submit plans, and thereafter to construct, a series of road 

improvements apparently different from the improvements under the Subdivision 

Improvement Agreements. (See fn. 5, ante.) Moreover, Surety (who acted as a passive 

guarantor under the Subdivision Improvement Agreements) became an active participant 

in the Tri-Party Agreement by agreeing to provide financing for this construction. 

Finally, County also undertook a series of obligations that were apparently new and 

distinct: it agreed to pay the costs associated with repairing or replacing the sewer; it 

agreed to recommend that a condition be attached to any tentative map or Specific Plan 

amendment for the Dictionary Hill Property requiring that owner to contribute to the 

costs associated with this new road improvement; and it agreed to approve Pointe's 

apartment projects with a condition that occupancy permits would be withheld until 

completion of the road improvements called for in the Tri-Party Agreement.

10 Indeed, in another recital contained in the Amended Agreement, the parties recited 

that, as to the units Pointe was building and County agreed to approve in consideration 

for Pointe's road construction obligations, "mitigation for the traffic created by these units 

is covered under a certified EIR for TM4828." If the Amended Agreement merely 

extended Pointe's previously imposed rights and obligations under the Improvement 

Agreements, this language would appear to be surplusage.
19

Agreements, and were instead designed to impose a new set of rights and obligations to 

solve distinct concerns by each of the contracting parties, the trial court correctly ruled 

that neither the Tri-Party Agreement nor the Amended Agreement was understood or 

intended by the parties as extending the time for Pointe to perform its obligations under 

the Subdivision Improvement Agreements. This understanding and intent was confirmed 

by County because, shortly after County finally approved the plans for the Jamacha 

Boulevard improvements called for by the Tri-Party Agreement (and during the time 

Pointe was still performing the independent obligations imposed under the Tri-Party 

Agreement) County informed Pointe (in its April 15, 2005, letter) that the Subdivision 

Improvement Agreements had expired and were in "default due to the original 

agreements expiring on January 29, 2005."

County argues the references in the Amended Agreement to Pointe's obligation to 

build "the road improvements to Jamacha Boulevard as required by TM4828-1 and [CG] 

4476" by implication necessarily extended the time for performing the obligations 

imposed on Pointe by the Subdivision Improvement Agreements. However, Pointe's 

showing below was that the Tri-Party and Amended Agreements required improvements 

to Jamacha Boulevard significantly different from the improvements required under the 

Subdivision Improvement Agreements (see fn. 5, ante), and were built under a distinct set 

of plans and at a different cost using different financing arrangements. County's showing 

below contained no evidence raising a triable issue of fact that "the road improvements to 

Jamacha Boulevard as required by TM4828-1 and [CG] 4476" were the same road 

improvement obligations imposed on Pointe by the Subdivision Improvement 
20

Agreements, much less that "the road improvements to Jamacha Boulevard as required by 

TM4828-1 and [CG] 4476" were coextensive with all of the other obligations imposed on 

Pointe by the Subdivision Improvement Agreements, and therefore County's claim that 

the later agreements by implication necessarily extended the time for performing the 

earlier agreements does not have evidentiary support.

We conclude the trial court correctly ruled the Subdivision Improvement 

Agreements lapsed more than four years before County's complaint was filed, and 

County's claims asserting breach of the Subdivision Improvement Agreements were 

barred by the expiration of the statute of limitations.

B. Denial of County's Motion for Leave to Amend Was Not an Abuse of 

Discretion

County alternatively argues the trial court abused its discretion when it denied its 

motion for leave to amend the complaint. 

Background

In opposition to Pointe's summary judgment motion, County asserted summary 

judgment was improper because the complaint set forth the terms of the Tri-Party 

Agreement and the Amended Agreement, and the complaint alleged that despite the TriParty Agreement and the Amended Agreement, Pointe had not completed the required 

improvements to Jamacha Boulevard. County argued these allegations, when liberally 

construed, stated facts sufficient to support a claim for breach of the Tri-Party Agreement 

and the Amended Agreements, and its 2009 complaint for breach of those later 

agreements was not time-barred. Pointe argued the mere reference to those later 
21

agreements did not preclude summary judgment on the complaint, because (1) County's 

allegations demonstrated the action sought damages for breach of the Subdivision 

Improvement Agreements, (2) County alleged the three 1992 contracts comprised the 

Subdivision Improvement Agreements and did not allege the Tri-Party and the Amended 

Agreements were among the Subdivision Improvement Agreements, and (3) the 

undisputed facts showed the Subdivision Improvement Agreements involved distinctly 

different obligations from the obligations of the Tri-Party and Amended Agreements.

County alternatively argued that, even if its allegations were insufficient to state a 

claim for breach of those later agreements, the materials submitted in opposition to the 

motion for summary judgment demonstrated County could state a claim for breach of 

those agreements and County should be granted leave to amend the complaint to state

claims for breach of the Tri-Party Agreement and the Amended Agreement. Pointe 

argued County's request for leave to amend should be denied because (1) the request for 

leave to file an amended complaint was untimely and (2) an order permitting County to 

amend to state entirely new claims for breach of the Tri-Party and Amended Agreements 

would be futile because such claims would themselves be time-barred. The court agreed 

the request was untimely, and also questioned how County would obviate the statute of 

limitations as to claims for breach of the Tri-Party and Amended Agreements. 

Accordingly, the court denied County's request to amend the complaint, and entered 

summary judgment in favor of Pointe.
22

Applicable Legal Principles

A trial court has wide discretion to allow the amendment of pleadings, and 

generally courts will liberally allow amendments at any stage of the proceeding. 

(Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) However, unwarranted delay 

in seeking leave to amend may be considered by the trial court when ruling on a motion 

for leave to amend (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746), and appellate 

courts are less likely to find an abuse of discretion where, for example, the proposed 

amendment is " 'offered after long unexplained delay . . . or where there is a lack of 

diligence . . . .' " (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.) Thus, when a 

plaintiff seeks leave to amend his or her complaint only after the defendant has mounted 

a summary judgment motion directed at the allegations of the unamended complaint, 

even though the plaintiff has been aware of the facts upon which the amendment is based, 

"[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion 

by allowing them to present a 'moving target' unbounded by the pleadings." (Melican v. 

Regents of University of California (2007) 151 Cal.App.4th 168, 176.)

A trial court may also consider whether the proposed amendment would be futile. 

For example, it is not an abuse of the trial court's discretion to deny leave to amend when 

the newly proposed causes of action would be barred by res judicata (Yee v. Mobilehome 

Park Rental Review Bd. (1998) 62 Cal.App.4th 1409, 1428-1429) or by the statute of 

limitations (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230-231 (Foxborough)).
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Analysis

County asserts, and Pointe does not dispute, that County could have pleaded facts 

adequate to state a cause of action for breach of the Tri-Party and Amended Agreements. 

However, Pointe argues (and County does not dispute) any such claim would have been 

time-barred had County filed a new complaint against Pointe on July 5, 2012, the date 

County sought leave to amend. Unless County's claims for breach of the Tri-Party and 

Amended Agreements could take advantage of the so-called "relation-back" doctrine, so 

any cause of action for breach of the Tri-Party and Amended Agreements would be 

deemed (for limitations purposes) to have been filed as of the date County filed its 

complaint on the Subdivision Improvement Agreements, the trial court's refusal to allow 

an amendment as futile would not be an abuse of discretion. (Foxborough, supra, 26 

Cal.App.4th 217.)

"An amended complaint is considered a new action for purposes of the statute of 

limitations only if the claims do not 'relate back' to an earlier[,] timely[-]filed complaint." 

(Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & 

Savitch, LLP (2011) 195 Cal.App.4th 265, 276.) "An amended complaint relates back to 

a timely[-] filed original complaint, and thus avoids the bar of the statute of limitations, 

only if it rests on the same general set of facts and refers to the same 'offending 

instrumentalities,' accident and injuries as the original complaint." (Davaloo v. State 

Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415.) Thus, "[u]nder the relation-back 

doctrine, an amendment relates back to the original complaint if the amendment: (1) rests 

on the same general set of facts; (2) involves the same injury; and (3) refers to the same 
24

instrumentality. [Citations.] An amended complaint relates back to an earlier complaint 

if it is based on the same general set of facts, even if the plaintiff alleges a different legal 

theory or new cause of action. [Citations.] However, the doctrine will not apply if . . . 

'the plaintiff seeks by amendment to recover upon a set of facts entirely unrelated to those 

pleaded in the original complaint.' " (Pointe San Diego, at pp. 276-277.) "[A] plaintiff 

who changes the essential facts upon which recovery is sought is not entitled to the 

benefits of the relation-back doctrine . . . ." (Davaloo, at p. 416.)

We are convinced County's proposed amendment would have changed the 

essential facts upon which recovery was sought and therefore would be outside the ambit 

of the relation-back doctrine.11 The original complaint alleged the formation of 

agreements in 1992 apparently obligating Pointe to build permanent improvements to 

Jamacha Boulevard that would be integrated into a planned new freeway, and also 

obligating Pointe to make other improvements, including water and sewer improvements. 

The amended complaint presumably would have alleged the formation, 10 years later, of 

a different agreement apparently obligating Pointe to build different improvements under 

a different set of plans (e.g. temporary improvements to Jamacha Boulevard to serve as a 

 

11 Ordinarily, courts assess the relation-back doctrine by comparing the factual 

allegations in the original and amended complaints to assess whether the amendment 

would rest on the same general set of facts, involve the same injury, and refer to the same 

instrumentality. (Davaloo v. State Farm Ins. Co., supra, 135 Cal.App.4th at pp. 415-

416.) We are somewhat hamstrung in this analysis because County, apparently as the 

result of the nature of its last-minute request for leave to amend, did not submit a 

proposed amended complaint that would have facilitated a comparison. However, we 

presume the amended complaint would have alleged the formation of the Tri-Party 

Agreement in 2002, and its subsequent amendment in 2006, and that Pointe had defaulted 

on the obligations imposed by those agreements.
25

stop-gap measure pending resolution of the state's plans for the freeway, see fn. 5, ante), 

that also employed different financing arrangements and contemplated different benefits 

for each of the contracting parties. The original complaint also involved a different date 

of default (early 2005) than did the amended complaint (April 2007), different injuries 

(failure to construct road improvements for freeway access versus failure to complete a 

widening of Jamacha Boulevard), and involved potentially different counterclaims by 

Pointe (alleging default by County as to County's obligations under the Tri-Party and 

Amended Agreements that had no counterpart under the 1992 Subdivision Improvement 

Agreements). Because County could have commenced its action for breach of the 

contract alleged in its original complaint over two years before its claim against Pointe 

under the Tri-Party and Amended Agreements even accrued, we are satisfied County's 

proposed amendment would have changed the essential facts on which recovery was 

sought in part.

We are convinced County's proposed amendment did not rest on the same general 

set of facts, did not involve the same injury, and did not refer to the same instrumentality, 

for purposes of the relation-back doctrine. (See, e.g., Foxborough, supra, 26 Cal.App.4th 

217 [original complaint alleged negligent transactional advice between 1978 and 1981

and proposed amendment alleged negligence when attorney served as expert consultant

and witness and denied responsibility for the oversight; no relation back because latter 

was separate incident that arose from new and later contractual relationship between the 

parties]; Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 168-169 

[amended complaint alleging cause of action for age discrimination did not relate back to 
26

filing of the original complaint because wrongful conduct described in the discrimination 

claim did not arise out of same set of facts alleged in original complaint to support claims 

of breach of contract and Labor Code violations]; Coronet Manufacturing Co. v. Superior 

Court (1979) 90 Cal.App.3d 342, 347 [amended complaint alleging decedent was 

electrocuted by lamp socket and switch manufactured by one entity did not relate back to 

original complaint alleging electrocution was caused by a defective hair dryer from a 

different manufacturer].) Because County's proposed amendment sought to interpose a 

claim that would not be eligible for the relation-back doctrine and therefore would have 

been time-barred, the trial court did not abuse its discretion when it denied County's 

request for leave to amend.

DISPOSITION

The judgment as to PCSD is affirmed. The petition for writ of mandate as to the 

judgment in favor of Pointe Residential is denied. Pointe is entitled to costs on appeal.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.