BARRINGTON v. ROBINS COMPANY (1984)

PROCEDURAL AND FACTUAL HISTORY

On July 3, 1979, appellant, Cheryl Barrington (“Barrington”) commenced an action for personal injuries against Doctor Taras, for medical malpractice, against Darvon Manufacturer, for failure to warn of the potential hazards involved in the ingestion of a prescription drug commonly known as “Darvon”, and against forty fictitiously named (Doe) defendants.   Doctor Taras and Darvon Manufacturer were never served with process and are not involved in the instant appeal.

On October 31, 1979, Barrington substituted respondent, A.H. Robins and Company (“Robins”) in the place of fictitiously named defendant Doe 40.   Thereafter, on February 29, 1980, Barrington filed a first amended complaint for damages alleging that the offending instrumentality which caused her injury was a defective and unsafe “Dalkon Shield” intrauterine device designed, manufactured, assembled and sold by respondent.   Robins was not served until July 19, 1982.   The return of service was filed with the Superior Court of Los Angeles County on August 23, 1982.

Robins specially appeared on August 18, 1982 and filed a motion to dismiss the action pursuant to Code of Civil Procedure section 581a, subdivision (a),¹ for failure to effect service and make return within three years.   Barrington filed a responsive pleading.   After the matter was argued and taken under submission, the trial court granted Robins' motion on October 1, 1982.   This appeal follows the order of dismissal.

ISSUE

The issue on appeal is whether the trial court erred in holding that a fictitiously named defendant must be served with process within three years of the original commencement of the suit.   We find that it did not.

DISCUSSION

The trial court was confronted with resolving the question of the commencement date of the action against respondent.   It concluded that this action commenced on July 3, 1979 when appellant originally filed her complaint.   This determination was critical as it is the starting point from which the three-year period of Code of Civil Procedure section 581a began to run.

On appeal, Barrington urges that her first amended complaint and its theory of recovery, as it pertains to Robins, involves the concept of products liability and differs from the theories of her original complaint.   From that premise she concludes that a new three-year period “commenced”, under Code of Civil Procedure section 581a, on February 29, 1980, for serving Robins with the summons and making return.

 Generally, an amended complaint will “relate back” to the filing of the original complaint if two elements exist.   They are:  (1) the amended complaint rests upon the same general set of facts as the original complaint;  and (2) it refers to the same accident and same injuries referred to in the original complaint.  Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 936–937, 136 Cal.Rptr. 269, 559 P.2d 624.)

In essence, in order to “relate back”, the amendment must allege the same operative facts and must substitute the name of the new defendant for a previously named Doe defendant.  (Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 482, 179 Cal.Rptr. 595.)   If these elements are not met, the amending pleading does not “relate back.”

To support her theory of non-relation back, Barrington places heavy reliance on Coronet Manufacturing Co. v. Superior Court (1979) 90 Cal.App.3d 342, 153 Cal.Rptr. 366.   In Coronet, the plaintiffs filed a wrongful death action alleging that their daughter had been electrocuted while using a dangerous instrumentality, namely, a defective hair dryer.   The defendants were the corporation under whose name the hair dryer was sold as well as a number of “Does” who allegedly supplied its component parts.   The second amended complaint identified, for the first time, defendant Coronet as one of the originally named “Does.”   However, the second amended complaint also alleged that the instrumentality causing the electrocution was a table lamp, whose socket and switch had been manufactured by defendant Coronet, rather than a hair dryer, as originally alleged.  (Id., at p. 344, 153 Cal.Rptr. 366.)   The question raised both in the trial court and on appeal was whether the second amended complaint “related back” to the filing of the original complaint.  (Id., at pp. 344–345, 153 Cal.Rptr. 366.)   Based upon these facts, the trial court held that the second amended complaint did “relate back” to the filing of the original complaint.  (Id., at p. 344, 153 Cal.Rptr. 366.)

The Court of Appeal reversed, holding that the second amended complaint did not “relate back.”   In so holding, the court focused upon whether the amended complaint in issue involved (1) the same “offending instrumentality” and (2) the same “accident.”   The Court held that although there was just the single electrocution and death, the original complaint pleaded that the offending instrumentality was the hair dryer and the accident was the use of that hair dryer.   The second amended complaint, on the other hand, alleged that the instrumentality was the table lamp, and the accident was the use of the table lamp.  (Id., at p. 347, 153 Cal.Rptr. 366.)

In light of this distinction, the court stated:  “The difference between being electrocuted by a hair dryer and being electrocuted by a table lamp is as great as being electrocuted by the hair dryer and being poisoned by some improperty [sic] processed food found on the kitchen shelf.   Although they relate to a single death at a single location they are different ‘accidents' and involve different instrumentalities.”  (Ibid.)

In line with that reasoning, Barrington argues that the facts in the instant matter also involve separate and distinct “offending instrumentalities” and “accidents.”   The original complaint alleges that the “offending instrumentality” was Doctor Taras' negligent medical treatment and the failure of Dr. Taras and Darvon Manufacturer to warn appellant of the dangers involved in the ingestion of the prescription drug commonly known as “Darvon”.

In the first amended complaint, the “offending instrumentality” was alleged to be a defective and unsafe “Dalkon Shield” intrauterine device designed, manufactured, assembled and sold by respondent.   The alleged “accident” was tubal-ovarian abscesses and an infection which resulted from appellant's use of the “Dalkon Shield.”

Additionally, the original complaint merely alleged general damages arising out of Dr. Taras' negligent medical treatment and of the failure of Dr. Taras and defendant Darvon Manufacturer to warn appellant of the dangers involved in the ingestion of the drug commonly known as “Darvon.”   In contrast, appellant's first amended complaint, while containing the identical general damage allegations against Dr. Taras and Darvon Manufacturer, also contained specific allegations that the wrongful acts of respondent caused “tubal-ovarian abscesses and infection” arising out of appellant's use of the “Dalkon Shield”;  and further alleged that respondent knowingly manufactured, designed, assembled, and sold the defective “Dalkon Shield.”

Thus Barrington posits that the causes of action alleged against Dr. Taras and Darvon Manufacturer arise out of different “offending instrumentalities” and “accidents” than does the cause of action alleged against respondent in appellant's first amended complaint.

 Respondent urges that this case is governed by Lesko v. Superior Court (1982) 127 Cal.App.3d 476, 179 Cal.Rptr. 595, which recognizes and applies the well established rule that all fictitiously named defendants must be identified and served within three years of the original commencement of the suit.   In Lesko, the argument was advanced that the original complaint should be disregarded as “a nullity” because, due to the lack of a 90-day notice pursuant to Code of Civil Procedure section 364, the name of the defendant in question “could not have been used” at that time.  (Id., at pp. 481–482, 179 Cal.Rptr. 595.)   The court found any such defect was not a jurisdictional one (id., at p. 481, 179 Cal.Rptr. 595), and applied the ordinary rule making the original commencement of suit, not the amendment first identifying the “Doe” defendant, the event from which the three-year service and return requirement begins to run.  (Id., at pp. 481–482, 179 Cal.Rptr. 595.)

This rule has been consistently applied, notably in Lopa v. Superior Court (1975) 46 Cal.App.3d 382, 120 Cal.Rptr. 445, wherein it was succinctly stated:  “It is established that as to a defendant named in the original complaint by a fictitious name the action commences for purposes of [Code of Civil Procedure] section 581a on the date of the filing of the complaint.”  (Id., at p. 387, 120 Cal.Rptr. 445.)   In Lopa, we issued a peremptory writ of mandate directing the dismissal of the action.   The excuse offered for the delayed amendment identifying the “Doe” defendant was one Barrington can hardly make, “ignorance of [the] cause of action” against that “Doe.”  (Id., at p. 389, 120 Cal.Rptr. 445.)   Nevertheless, the identity of the defendant in Lopa had long been known, just as here, and the court found no basis for tolling the three-year period for serving process on him.   (Id., at p. 391, 120 Cal.Rptr. 445.)

This rule has also been acknowledged in Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946, 154 Cal.Rptr. 472.   Indeed, Barrington has not cited a decision allowing an action to proceed against a fictitiously named defendant where service was not effected within three years after the original commencement of suit.

The “separate instrumentalities” test which Barrington cites involves the wholly separate question of whether an amended pleading will avoid a statute of limitations bar by “relating back” to the original complaint.   Barrington points to no authority suggesting that an amended pleading of that kind will qualify for a new three-year period in which it must be served.

On the contrary, the Munoz court expressly stated that the three-year service and return requirement is totally independent of the rules governing the effect of “Doe” pleadings for statute of limitations purposes.  (91 Cal.App.3d at p. 946, 154 Cal.Rptr. 472.)   In Munoz, the court took note of the liberal rules allowing post-limitation amendments identifying “Doe” defendants, but reaffirmed the strict three-year rule for serving such defendants:  “A plaintiff ignorant of the identity of a party responsible for damages may name that person in a fictitious capacity, a Doe defendant, and the time limit prescribed by the applicable statute of limitations is extended as to the unknown defendant.   A plaintiff has three years under section 581a, subdivision (a) after the commencement of the action to discover the identity of the unknown defendant and effect service of the complaint․  The statute (§ 474) must be liberally construed to enable a plaintiff to avoid the bar of the statute of limitations where he is ignorant of the identity of the defendant.”  (Id., at p. 946, 154 Cal.Rptr. 472, citations and footnote omitted, emphasis added.)  “Presumedly, the statutory scheme ․ which places a limit of three years after the filing of the action to identify and serve all defendants including the unknown defendant, has been a satisfactory compromise between the harsh effect on a plaintiff of the statute of limitations and the unfairness to a defendant of attempting to litigate a stale claim.”  (Id., at p. 947, 154 Cal.Rptr. 472, emphasis added.)

Thus, it is only for statute of limitations purposes of “Doe” pleading that the courts have developed the “same general set of facts” rule set forth in Smeltzley v. Nicholson Mfg. Co., supra, 18 Cal.3d 932, 936, 136 Cal.Rptr. 269, and its converse, “separate instrumentalities,” as discussed in Coronet Manufacturing Co. v. Superior Court, supra, 90 Cal.App.3d 342, 347, 153 Cal.Rptr. 366.   There is no such rule relating to the service and return requirement.   All defendants must be served within three years, even those which would not have been subject to suit at all were it not for California's “Doe” practice.²

In sum, Barrington's whole attempt to avoid a dismissal on a “separate instrumentalities” argument has no support in precedent.   It would create a hopelessly contradictory situation wherein “separate instrumentalities” pleadings might avoid Code of Civil Procedure section 581a dismissals, but only to lose the “same general set of facts” treatment which the plaintiff must ordinarily obtain to avoid a statute of limitations dismissal.

As the Munoz court explained, the Legislature has clearly expressed the intention to enforce a strict three-year service and return requirement.   (91 Cal.App.3d at p. 947, 154 Cal.Rptr. 472.)   The principal language has always been simple and sweeping:  “No action shall be further prosecuted ․ unless the summons on the complaint is served and return made within three years after the commencement of the action ․”  (Code Civ.Proc., § 581a, subd. (a).)  The legislative policy was underscored by the 1982 amendment (Stats.1982, chap. 600, § 1) in which subdivision (f) was added, expressly limiting exceptions to estoppel, impossibility, impracticability or futility.³  Nor does anything in the statute on fictitiously named defendants (Code Civ.Proc., § 474) give rise to any inference that the three-year period for service might be deemed tolled for “Does” later identified.

CONCLUSION

In conclusion, Robins was expressly identified by Barrington as “Doe 40” in the original complaint, and the caption of the first amended complaint ultimately served on Robins makes that same identification by the substitution of Robins' name for Doe 40.   Consistent case law required Robins to be served with a summons and return made within three years of the commencement of the original complaint.   It was not done and no authorized excuse was offered.

The state has an interest in assuring that lawsuits are prosecuted expeditiously.  (Schultz v. Schultz (1945) 70 Cal.App.2d 293, 297, 161 P.2d 36.)

DISPOSITION

The order of dismissal is affirmed.

FOOTNOTES

1.   California Code of Civil Procedure, section 581a provides, in pertinent part:  “(a) No action heretofore or hereafter commenced by complaint shall be further prosecuted, and no further proceeding shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the action shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named as a party or not, unless the summons on the complaint is served and return made within three years after the commencement of the action ․”  (Emphasis added.)

2.   The “Doe” defendant procedure of California has been academically criticized because “it indiscriminately lets any plaintiff add as much as 3 years to any applicable statute of limitations.   For example, the California statute of limitations for breach of a written contract is 4 years.   This would seem to provide ample time for a plaintiff to identify all potential defendants.   A defendant who first learns of the suit almost 3 years after the expiration of such a lengthy period is justified in complaining that a procedural gimmick is being used to deprive him of the protections that a reasonable, set period of limitations is supposed to provide.”  (Hogan, California's Unique Doe Defendant Practice:  A Fiction Stranger Than Truth (1977) 30 Stan.L.Rev. 51, 101–102, fns. omitted.)

3.   Section 581a, subdivision (f), of the Code of Civil Procedure provides:  “Except as provided in this section, the provisions of this section are mandatory and are not excusable, and the times within which acts are to be done are jurisdictional.   Compliance may be excused only for either of the following reasons:(1) Where the defendant or cross-defendant is estopped to complaint.(2) Where it would be impossible, impracticable, or futile to comply due to causes beyond a party's control.   However, failure to discover relevant facts or evidence shall not excuse compliance.”

ARABIAN, Associate Justice.

KLEIN, P.J., and LUI, J., concur.