Filed 9/1/26 Riley v. Los Angeles Unified School District CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
BESSIE RILEY, B345616
Plaintiff and Appellant, Los Angeles County Super. Ct. No. 22STCV29385 v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Holly J. Fujie, Judge. Affirmed.
Herman Law, Allegra P. Rineer for Plaintiff and Appellant.
Andrade Gonzalez, Sean A. Andrade and Henry H.
Gonzalez for Defendant and Respondent.
_________________________
The Legislature, through Assembly Bill 218, amended Code of Civil Procedure section 340.1 to temporarily revive timebarred claims for childhood sexual assault for a three-year period, from January 1, 2020 to December 31, 2022. (West Contra Costa Unified School Dist. v. Superior Court (2024) 103 Cal.App.5th 1243, 1254.) Bessie Riley, relying on this revival statute, brought suit for assault she allegedly suffered decades earlier while a child at Miramonte Elementary School, part of the Los Angeles Unified School District (LAUSD). She pleaded her claims and litigated her case against LAUSD on the premise that one particular teacher at Miramonte had assaulted her. When discovery revealed this teacher had not worked at Miramonte until years after Riley attended the school, Riley sought leave to amend her complaint, in the midst of summary judgment proceedings, to name another teacher as her abuser. The trial court denied Riley’s request and granted LAUSD’s motion for summary judgment. We affirm, because the trial court was within its discretion to deny amendment so late in the proceedings.
I.
On September 9, 2022, and March 20, 2023, respectively, Riley filed a complaint and a first amended complaint against LAUSD and Doe defendants alleging she had suffered sexual abuse and assault 50 years earlier, between approximately 1972 and 1973, while a nine or 10-year-old student at Miramonte. Riley alleged that back in 1972 and 1973, she was “repeatedly sexually abused and assaulted” on Miramonte’s premises by a “PERPETRATOR,” who was a teacher at Miramonte. Riley’s pleadings defined “PERPETRATOR” to mean “a teacher named as Mark Henry B[er]ndt . . . an employee and/or agent of”
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Miramonte. Specific acts of abuse and assault alleged were fondling over and under clothes, forced oral copulation, digital penetration, and penile penetration. While this sexual abuse and assault was occurring, Riley’s mother reported it to the school’s principal. But, as to Berndt, “no action was taken, no investigation was completed, and” the abuse and assault continued.
Riley asserted causes of action for negligence and negligent hiring, retention, and supervision. Riley asserted the school district’s liability for negligence derived from its failure to take reasonable care to protect her from its employee and perpetrator, Berndt. Riley asserted LAUSD and Berndt “were in a special relationship of employer-employee” and that LAUSD owed a duty to control Berndt’s acts and prevent foreseeable harm to Riley. Riley also alleged LAUSD’s “duties encompassed using reasonable care in the hiring, retention, and supervision of” Berndt and that LAUSD had breached those duties.
Riley’s causes of action, in short, each sought to hold LAUSD responsible, under various negligence theories, for Berndt’s conduct.
On October 3, 2023, Riley served LAUSD with written discovery, including interrogatories and requests for admission. Riley’s interrogatories asked LAUSD to, among other things, “[s]et forth all facts RELATING TO the nature of YOUR relationship with the PERPETRATOR, including his job duties and the dates of his employment with YOU.” The definitions accompanying the interrogatories again clarified “PERPETRATOR” meant Berndt. Riley’s requests for admission likewise focused on LAUSD’s employment of Berndt and its alleged failure to protect students from him in 1972 or 1973.
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LAUSD, in its December 22, 2023 verified responses to Riley’s interrogatories, responded: “The School District had no relationship of any type with the perpetrator, Mark Berndt in 1972 or 1973.” On that same date, LAUSD denied Riley’s various requests for admissions, repeatedly stating, “Mark Berndt was not a School District employee in either 1972 or 1973.”
On April 5, 2024, LAUSD served responses to a second round of discovery with information that Berndt had been a teacher at Miramonte from 1979 to 2011.
One month later, in May 2024, LAUSD filed a motion for summary judgment, asserting Riley’s allegations “that she was abused by Mark Berndt at Miramonte Elementary School in approximately 1972 to 1973 when she was 9 to 10 years old” were “not possible — Berndt was not at Miramonte until six years after [Riley’s] alleged abuse. Berndt was not [a] School District employee in 1972-1973. Berndt was first hired at Miramonte in August 1979.” Therefore, LAUSD argued, it could “[ ]not be held liable for any alleged negligence because its conduct was not, and could not have been, a ‘legal cause’ of [Riley’s] alleged injury.”
On August 1, 2024, Riley, according to her lawyer’s declaration, reviewed an old Miramonte yearbook and identified her fourth-grade teacher, a teacher other than Berndt, as the actual abuser. Riley thereafter served additional discovery on LAUSD regarding this newly identified person’s employment, to which LAUSD responded on September 20, 2024.
On October 29, 2024, more than two years after filing her original complaint, 10 months after being on notice she had named the wrong perpetrator, less than three months before the January 27, 2025 trial date, and amidst summary judgment proceedings, Riley filed a motion for leave to file a second
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amended complaint that would replace Berndt’s name with the person she had newly identified from the yearbook.
As the revival window pursuant to Assembly Bill 218 had expired on December 31, 2022, Riley argued the new complaint “ ‘relate[d] back’ ” to her original complaint, as it was “based on the same general set of facts as the original complaint” and involved “the same injury and the same instrumentality.” Riley further contended granting her motion to amend would not prejudice LAUSD, as her “causes of action and theories of liability [would] remain the same.”
The trial court denied Riley’s motion. The court remarked on Riley’s delay, noting the motion came nearly a year after LAUSD’s discovery responses had put Riley on notice that Berndt was not the correct perpetrator and more than five months after LAUSD filed its motion for summary judgment on the sole ground that Berndt could not have been the perpetrator. The court observed LAUSD’s motion for summary judgment was “set to be heard on December 4, 2024 — only 16 days after the hearing on [the motion to amend].” Furthermore, trial was “set for January 27, 2025 — only ten weeks after the hearing.” The court found it “[t]elling[]” that only Riley’s counsel had submitted a declaration in support of the motion for leave while Riley “herself does not provide a declaration to explain [her] significant ‘mistake.’ ”
The trial court explained: “Here, Plaintiff’s proposed [second amended complaint] completely changes the nature of the claim by withdrawing the name of the perpetrator upon whose actions she asserted her original claim and inserting a completely new perpetrator. The perpetrator in the proposed [complaint] is a completely different ‘instrumentality’ from that alleged in both
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the original Complaint and the [first amended complaint]. This is not a mere change in legal theory or cause of action but a completely new set of facts. A claim that Mark Henry Berndt molested Plaintiff is not the same as a claim that [a specific teacher other than] Berndt molested her. Thus, the relation-back doctrine cannot apply.”
The trial court continued: “With trial only two months away, Defendant’s prejudice from the filing of the proposed [complaint] is apparent. For the past two years, LAUSD has been litigating a case about alleged molestation by one employee and Plaintiff seeks to change it to a case against another. . . . In no way would an investigation or discovery regarding a claim against Mark Henry Berndt be equivalent to an investigation against” a different named individual. The court accordingly denied Riley’s motion for leave to amend.
Subsequently, the trial court issued a ruling granting LAUSD’s motion for summary judgment. The court found Riley had not met her burden of showing any triable issues of material fact, declaring that “[i]n the [first amended complaint], [Riley] specifically alleges that she was abused by Berndt. There is no reference to [the person she now accuses] or [a] question as to the identity of the abuser. The allegations contained in a plaintiff’s complaint constitute judicial admissions and thus are ‘conclusive concessions of the truth of a matter.’ [Citations.] ‘ “While inconsistent theories of recovery are permitted [citation], a pleader cannot blow hot and cold as to the facts positively stated.” ’ [Citation.] Thus, even construing the papers in the light most favorable to the non-moving party, as the Court must, Plaintiff’s statement in her declaration that she was abused by a different party than the one named in the [first
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amended complaint] does not raise a triable issue of fact as to the allegations contained in the operative [first amended complaint].”
Riley filed a notice of appeal from the court’s ruling on April 9, 2025. The court rendered its final judgment on June 30, 2025. Although Riley’s notice of appeal was premature, the California Rules of Court allow reviewing courts to “treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment.” (Cal. Rules of Court, rule 8.104(d)(2).) We “construe the appeal to have been taken from the judgment.” (Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 202.)
II.
On appeal, Riley challenges both the trial court’s ruling denying her motion for leave to file a second amended complaint and its ruling granting LAUSD’s motion for summary judgment.
A.
The trial court did not abuse its discretion in denying Riley’s motion for leave to file a second amended complaint.
“We review a denial of leave to amend for abuse of discretion.” (Miles v. City of Los Angeles (2020) 56 Cal.App.5th 728, 739.) While “ ‘ “[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,” ’ ” this policy does not apply if “ ‘ “ ‘ “prejudice is shown to the adverse party.” ’ ” ’ ” (Hughes v. Farmers Ins. Exchange (2024) 107 Cal.App.5th 73, 87.) “Prejudice exists where the proposed amendment would require delaying the trial, resulting in added costs of preparation and increased discovery burdens.” (Miles, at p. 739.) “ ‘ “ ‘[U]nwarranted delay in presenting [an amendment]
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may — of itself — be a valid reason for denial.’ ” ’ ” (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345; accord, Record v. Reason (1999) 73 Cal.App.4th 472, 486.) A trial court’s ruling denying leave to amend “ ‘ “will be upheld unless a manifest or gross abuse of discretion is shown.” ’ ” (Melican v. Regents of the Univ. of Cal. (2007) 151 Cal.App.4th 168, 175 (Melican).)
Here, on September 9, 2022, Riley filed her complaint naming Berndt as the teacher who abused her. Riley learned that Berndt was not employed by LAUSD during the years identified in her complaint — and therefore could not have been her abuser — in LAUSD’s December 22, 2023 discovery responses. Yet she did not file her motion to amend, naming a new alleged perpetrator, until over 10 months later, more than two years after her initial complaint. Riley states she first discovered the identity of the allegedly real perpetrator, her fourth-grade teacher, through reviewing an old Miramonte yearbook on August 1, 2024. However, she does not explain the delay of nearly two years between filing her complaint and reviewing the old yearbook, which she did not obtain from LAUSD through discovery.
Riley challenges LAUSD’s assertion that she “had the yearbook in her possession all along,” claiming there is “absolutely no basis to presume” she “had knowledge of or access to the yearbook before August 2024,” yet she provides no explanation for the timeline or source by which she obtained the yearbook, instead merely asserting the “notion” that she “did not obtain [the yearbook] through investigative efforts is nonsense.” Indeed, in the trial court, Riley offered no declaration to explain
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her error — an omission the trial court found “[t]elling[ ]” and supportive of its finding of prejudice.
But beyond this unexplained delay is the prejudice granting amendment would have caused LAUSD.
As the trial court noted, Riley’s proposed second amended complaint “completely change[d] the nature of [her] claim by withdrawing the name of the perpetrator upon whose actions she asserted her original claim and inserting a completely new perpetrator.” That is, Riley’s “entire case rest[ed] upon [Berndt’s] identity and alleged actions as the perpetrator of the alleged molestation . . . . [¶] . . . In no way would an investigation or discovery regarding a claim against Mark Henry Berndt be equivalent to an investigation against” a different named individual.
A plaintiff may file suit against an employer for an employee’s wrongful act committed while acting in the scope of employment despite being “unable to identify which employee committed the wrongful act.” (Perez v. City of Huntington Park (1992) 7 Cal.App.4th 817, 820.) In such cases, the employer must use investigation and discovery to identify the unknown perpetrator.
But here, Riley did name her perpetrator. In her original and first amended complaints and discovery requests, Riley explicitly identified Mark Henry Berndt as her abuser, and so defined the limits of her lawsuit. LAUSD accordingly had reason to limit its investigation to Berndt and had no reason to investigate other potential perpetrators, let alone the one Riley would ultimately name.
Riley’s proposed amendment was not one that “finished telling the story begun in the original complaint” or “described
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the continuation of the events asserted in the initial pleading.” (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 966.) Instead, it changed the story and events central to Riley’s allegations after two years of litigation and three months before trial, “ ‘open[ing] up an entirely new field of inquiry.’ ” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487 (Magpali).) Such a change would have required LAUSD to undergo new investigation and discovery. Riley herself recognized this in her memorandum of points and authorities filed with her motion for leave to amend, stating that, “[s]hould Defendant require a trial continuance to conduct further discovery due to Plaintiff’s amendment, Plaintiff is willing to stipulate to such a continuance.”
When “[the] addition of [an amendment] would have necessitated, at the very least, a continuance” of the trial date as “the only way to avoid prejudice to the opposing party,” refusal of leave to amend on the eve of trial is not an abuse of discretion. (Magpali, supra, 48 Cal.App.4th at pp. 487−488; cf. Moss Estate Co. v. Adler (1953) 41 Cal.2d 581, 586 [“The original answer gave no inkling of the facts alleged in the proposed amended answer, and a continuance would have been required had leave to file been granted. Under these circumstances we cannot say that the trial court abused its discretion in denying defendant leave to file her proposed amended answer”].) Similar concerns permit denial of leave to amend when, as here, leave is sought amidst ongoing summary judgment proceedings. (Applegate v. Carrington Foreclosure Services, LLC (2025) 112 Cal.App.5th 356, 369 [approving of denial of leave to amend when defendant had already “mounted a summary judgment motion”].)
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Riley relies on the recent decision in S.C. v. Doe 1 (2025)
115 Cal.App.5th 365 (S.C.) to support her contention that she was entitled to leave to amend her complaint. However, the circumstances of S.C. are distinguishable from those here. In that case, S.C.’s original, September 2022 complaint alleged she was sexually assaulted by her foster father in approximately 1981 while under Doe 1’s custody, care, and control. (S.C., at p. 370.) Nine months later, in June 2023, S.C. requested and received her juvenile case records and discovered she had not been taken into protective custody by Doe 1 until 1984. (Ibid.) After a further six months, in December 2023, S.C. filed a motion for leave to amend her complaint to allege she was sexually assaulted while under Doe 1’s custody, care, and control in approximately 1984 to 1986, rather than 1981. (Ibid.) Two months later, in February 2024, Doe 1 moved for summary judgment on the grounds S.C. was not a dependent in 1981, the time she alleged she suffered sexual assault. (Ibid.) The trial court denied S.C.’s motion to amend and granted Doe 1’s motion for summary judgment. (Ibid.)
The appellate court reversed both the summary judgment and the order denying S.C.’s motion for leave to amend. (S.C., supra, 115 Cal.App.5th at p. 370.) En route to this conclusion, the court concluded Doe 1 would not have been prejudiced by the amendment. First, “Doe 1, which initially received S.C.’s file, became aware of the date discrepancy at or around the same time as her” in the course of discovery. (Id. at p. 383.) Second, S.C. filed her motion to amend “more than a month before Doe 1 filed its summary judgment motion and 10 months before the scheduled trial date.” (Id. at p. 383.)
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The outcome in S.C. does not sway us to find an abuse of discretion here. Riley did not file her motion to amend until more than five months after LAUSD filed its motion for summary judgment and only three months before the scheduled trial date. The court in S.C. recognized the significance of such distinctions in timing, citing Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263 for the proposition that a “motion for leave to amend complaint may be denied where ‘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.’ ” (S.C., supra, 115 Cal.App.5th at p. 383, citing Falcon v. Long Beach Genetics, Inc., at p. 1280.) Here, LAUSD did just that, presenting a motion for summary judgment — several months before Riley’s proposed amendment — directed at the specific allegations of Riley’s unamended complaint against Berndt.
In short, the trial court was within its discretion to deny Riley’s motion for leave to amend. As we have upheld the trial court’s denial of leave to amend on grounds of delay and prejudice, we need not resolve whether the relation-back doctrine separately precluded amendment.
B.
Having settled the scope of the pleadings, we conclude the trial court did not err in granting LAUSD’s motion for summary judgment.
We review a grant of summary judgment de novo and determine independently whether an issue of material fact requires trial. (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.) In performing this de novo review of a summary judgment ruling, the court on appeal
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“appl[ies] the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party’s showing has established facts which justify a judgment in movant’s favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.)
The pleadings “set the boundaries of the issues to be resolved at summary judgment.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648; see Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) Accordingly, “a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) That is, the “ ‘ “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.” ’ ” (De Meo v. Cooley LLP (2025) 115 Cal.App.5th 17, 43.) A plaintiff’s opposition papers “ ‘ “ ‘ “ ‘may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.’ ” ’ ” ’ ” (Ibid.) “It would be patently unfair to allow plaintiffs to defeat [a] summary judgment motion by allowing them to present a ‘moving target’ unbounded by the pleadings.” (Melican, supra, 151 Cal.App.4th at p. 176; see De Meo, at p. 43 [pleadings must give fair notice].) Relatedly, “ ‘[a] defendant moving for summary judgment may rely on the allegations contained in the plaintiff’s complaint, which constitute judicial admissions. As such they are conclusive
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concessions of the truth of a matter and have the effect of removing it from the issues.’ ” (Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324.)
Riley’s first amended complaint alleged she was repeatedly abused by Berndt at Miramonte school from approximately 1972 to 1973 when she was nine or 10 years old. Riley claimed LAUSD was negligent in hiring, retaining, and supervising Berndt and in failing to protect Riley from his abuse. LAUSD presented evidence, in the form of a declaration from Matthew Frohwein, LAUSD’s Deputy Director of Employee Relations, that Berndt first began working for LAUSD in 1976 and did not work at Miramonte until 1979. Riley presented no evidence to refute this fact. In light of this evidence, the trial court correctly concluded Riley was unable to establish LAUSD’s alleged negligence caused her alleged abuse by Berndt, which was the basis of her claims.
Riley’s operative first amended complaint premised LAUSD’s liability for negligence on Berndt’s alleged abuse of Riley while Berndt was employed by LAUSD. Despite Riley’s contentions to the contrary, and her declaration asserting abuse by a specific teacher other than Berndt, her operative complaint did not, as discussed above, give notice of negligence for alleged abuse by others, including by the specific teacher she had newly identified, and such alleged abuse was not a proper theory before the court when it considered LAUSD’s motion for summary judgment.
In short, the allegations of Riley’s operative complaint limit the bounds of Riley’s case and summary judgment on that complaint was appropriate here.
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DISPOSITION
We affirm the judgment and award LAUSD its appellate costs.
SCHERB, J.
We concur:
STRATTON, P. J.
WILEY, J.