Filed 9/1/26 Riley v. Los Angeles Unified School District CA2/8
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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 time-
barred 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
13
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.
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