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Court of Appeal, First District, Division 1, California.

Richard E. BAUMGARTE, Plaintiff and Appellant, v. Roger GOAD and John Joseph Duran, Defendants and Respondents.


Decided: January 04, 1983

Law Offices of O. Leland Osborne, Mark Haesloop, San Mateo, for plaintiff and appellant. Keith Sorenson, Dist. Atty., George F. Camerlengo, Deputy Dist. Atty., Redwood City, for defendants and respondents.

Richard E. Baumgarte sued public entities and certain of their employees upon tort theories.   More than three years later he amended his complaint to substitute public employees Roger Goad and John Doran for defendants previously identified by fictitious names.   Goad and Doran demurred generally on the grounds that the action against them was barred by a statute of limitation embodied in the California Tort Claim Act (Gov.Code, § 810 et seq.) and by the general three-year dismissal provision of Code of Civil Procedure section 581a, subdivision (a).   Their demurrers were sustained on both grounds, without leave to amend, and the action was dismissed.   Baumgarte appeals.   We conclude that the complaint on its face establishes that the action against Goad and Doran was barred by the Government Code;  therefore we affirm.

 Where, as here, a plaintiff seeks appellate review of a general demurrer sustained not on the ground that the complaint fails to state a cause of action but rather on the ground that any cause of action stated in the complaint is barred by a statute of limitation, the question presented is whether from the well-pleaded facts in the complaint—and any matters of which judicial notice may be taken—it affirmatively appears as a matter of law that any such cause of action is necessarily barred.  (Valvo v. University of Southern California (1977) 67 Cal.App.3d 887, 895, 136 Cal.Rptr. 865;  Code Civ.Proc., § 430.30, subd. (a);  cf. Bainbridge v. Stoner (1940) 16 Cal.2d 423, 431–432, 106 P.2d 423;  McGee v. Weinberg (1979) 97 Cal.App.3d 798, 802, 159 Cal.Rptr. 86;  Zapata v. Meyers (1974) 41 Cal.App.3d 268, 272, 115 Cal.Rptr. 854.)

Baumgarte's action was commenced in the trial court by a complaint filed on April 14, 1977.   Goad and Doran directed their demurrers to a subsequently-filed first amended complaint in which neither of them was initially named.   The amended complaint alleged that Baumgarte had been falsely imprisoned and subjected to other tortious conduct by four named defendants—two individuals other than Goad and Doran as well as the South San Francisco Police Department and the San Mateo County Sheriff's Department—and by one hundred other defendants fictitiously named as “DOE ONE through DOE ONE HUNDRED, inclusive.”  “Doe Sixty-One” was ultimately identified as Doran and “Doe Sixty-Two” as Goad.   The amended complaint alleged that Does Sixty-One and Sixty-Two, among others, had been agents and employees of the San Mateo County Sheriff's Department acting within the scope of their agency and with the permission and consent of the department and that they had participated in specified ways in the false imprisonment and other wrongs allegedly inflicted upon Baumgarte at the San Mateo County Jail.   The amended complaint also contained the standard allegation that each of the fictitiously-named defendants “is responsible in some manner for the occurrences herein alleged.”   The amended complaint also alleged that Baumgarte had presented timely claims for damages to the City of South San Francisco and to the County of San Mateo and that each claim had been rejected;  the amended complaint incorporated copies of written notices of rejection given by the city on November 22, 1976, and by the county on January 17, 1977.

 Baumgarte further amended his complaint, to name Goad and Doran as defendants, by a document dated May 30, 1980, and filed June 4, 1980.

Baumgarte concedes that his action against Goad and Doran was subject, by virtue of Government Code section 950.6, to the limitation periods made applicable to actions against public entities by Government Code section 945.6:  In the circumstances alleged in the amended complaint, Baumgarte was required to commence his action against Goad and Doran within six months after January 17, 1977 (Gov.Code, § 945.6, subd. (a)(1)).   Goad and Doran contend that on the face of the complaint as further amended, the action against them was not commenced until they were expressly named as defendants in 1980, long after the limitation period had run.   Baumgarte responds that in light of the fictitious-defendant designations and allegations described above his amendment naming Goad and Doran related back to the commencement of the action for purposes of the limitation period.

Baumgarte's position evokes the rules applicable to doe allegations and statutes of limitation generally.  (Cf. Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 599–603, 364 P.2d 681.)   In Chase v. State of California (1977) 67 Cal.App.3d 808, 811–814, 136 Cal.Rptr. 833, we rejected a contention that the general rule should be applied to actions under the California Tort Claims Act.   Although the facts of Chase are in some respects distinguishable, we deem the principles stated in that opinion applicable and controlling here:  “[W]e observe that Austin gives effect to ‘the liberality of amendment [of pleadings] permitted by the modern rule ․’  (56 Cal.2d, p. 603, 364 P.2d 681;  and see 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 1040, pp. 2618–2620.)   It does not purport to hold that the Tort Claims Act's strict and mandatory condition that a timely action must be commenced against a public entity, is satisfied by the filing of a complaint with ‘Doe’ defendants in which the public entity goes unnamed and unconsidered.   Indeed, even in the case of a subsequently joined nonpublic entity defendant, it does not hold that in fact the action was earlier commenced against him.   Instead, to effectuate modern liberal rules of pleading he ‘is considered a party to the action from its commencement for purposes of the statute of limitations.’  (Italics added.)   The Tort Claims Act permits no similar liberality in derogation of its mandate that in a case such as that at bench, the action must be commenced against the state within six months from its rejection of a claim.”  (67 Cal.App.3d at p. 813, 136 Cal.Rptr. 833.)   We are unpersuaded by Baumgarte's argument that to apply Chase to bar an action against public employees where detailed charging allegations have been made against the fictitiously-designated defendants for whom the employees are subsequently substituted would be in derogation of sound judicial policy:  In our view the California Tort Claim Act has established that, in general, public entities and public employees are to have equivalent liabilities and immunities.  (Cf. Van Alstyne, California Government Tort Liability Practice (C.E.B.1980) § 2.15, p. 54 et seq.)   It follows that the strict and mandatory tenor of the act extends as fully to public employees as to entities and that the liberality of the rules stated in Austin and cognate cases may no more be made available to claimants against such employees than to claimants against entities.   A fortiori where, as here, the claimant is able at the outset to plead with particularity the nature of the fictitiously-designated defendant's participation, it is not unreasonable to require that a claimant against public entities and individuals proceed with dispatch to identify the defendants by name.

The demurrers were properly sustained on the ground that the action against Goad and Doran was barred by the applicable California Tort Claims Act statute of limitation.

It also amply appears from the record before us that return of service of summons upon Goad and Doran could not have been accomplished within three years after the action was commenced and therefore that the action against them was in any event subject to mandatory dismissal (Code Civ.Proc., § 581a, subd. (a);  cf. Lopa v. Superior Court (1975) 46 Cal.App.3d 382, 387–388, 120 Cal.Rptr. 445;  Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946, 154 Cal.Rptr. 472);  we perceive in the record no colorable basis for Baumgarte's assertion that Goad and Doran should be deemed estopped to invoke the dismissal statute.   But in light of our conclusion with respect to the statute of limitation, we need reach neither these issues nor the preliminary question whether they could properly be raised by demurrer.

The judgment of dismissal is affirmed.




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