MARASCO v. WADSWORTH (1977)

On December 15, 1976, we filed our unpublished opinion in this case. Our Supreme Court granted plaintiff's petition for hearing and, thereafter, transferred the matter back to us for reconsideration in light of Smeltzley v. Nicholson Mfg. Co., 18 Cal.3d 932, 136 Cal.Rptr. 269, 559 P.2d 624 (1977).

We reject application of the Smeltzley case to our facts. In Smeltzley, supra, plaintiff sued for injuries received as a result of his employer's failure to provide him a safe place in which to work. Proof of that allegation normally would involve proof of the deficiencies in the machine, manufactured by Nicholson. It is not so here, for plaintiff must establish the conduct of decedent's driver. Quoting from Austin v. Massachusetts Bonding & Insurance Co., 56 Cal.2d 596, 15 Cal.Rptr. 817, 364 P.2d 681 (1961), the Smeltzley court stated (18 Cal.3d p. 936, 136 Cal.Rptr. p. 271, 559 P.2d p. 626): “The modern rule . . . is that . . . where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts.” (Italics in original.)

The Smeltzley court also relied upon a decision of this division in Garrett v. Crown Coach Corp., 259 Cal.App.2d 647, 66 Cal.Rptr. 590 (1968). In that case, we wrote that (p. 650, 66 Cal.Rptr. p. 592): ‘This is not a case in which there is any basis in the record for challenging the bona fides of plaintiff's allegation that he was ignorant of the true name of Doe One.’ (Emphasis added.) In our case plaintiff, in her original complaint, alleged that ‘the decedent Maude E. Russell was reding as a passenger in an automobile being driven by Rose Ann Wadsworth . . ..’ It thus will be seen that the plaintiff alleged that she was well aware of the name and identity of the person driving the automobile occupied by decedent.

Accordingly, we reiterate our previously unpublished opinion.

On 4 Dec. 72, plaintiff Ruth Marasco filed a complaint for alleged wrongful death against Frank Penegar and Does I through XX, for damages caused by an accident occurring 14 Dec. 71. The complaint alleged that Does I through X were the registered owners of a vehicle driven by Frank Penegar and that Maude E. Russell, deceased, was riding in an automobile driven by Rose Wadsworth when defendants so negligently drove their vehicle as to cause it to collide with the rear of the car occupied by Russell, pushing it into a vehicle ahead of it, causing the death of Russell. On 31 May 73, Penegar filed his answer to this complaint and Penegar's attorneys and plaintiff's attorneys stipulated on 13 Aug. 73 that plaintiff could file a first amended complaint, naming Wadsworth as a defendant.

A first amended complaint was filed 28 Aug. 73 and on 25 Oct. 73, Wadsworth's attorneys demurred to the first amended complaint and set their demurrer for hearing on 7 Nov. 73. This demurrer went off calendar on request of Wadsworth's attorneys.

Thereafter, by stipulation made on 9 Nov. 73 between plaintiff's attorneys and Penegar's attorneys, it was agreed that plaintiff could file a second amended complaint, which second amended complaint was filed 16 Nov. 73. This second amended complaint was demurred to by Wadsworth, which demurrer was set for hearing. On 16 Apr. 74, the demurrer was sustained with leave given plaintiff to amend.

Thereafter, on 28 Apr. 74, a third amended complaint was filed. Defendant Wadsworth answered and pled affirmatively that plaintiff's cause of action was barred by the statute of limitations appearing in Code Civ.Proc. § 340, subd. 3. The record indicates that, at trial, on 1 Dec. 75 before a jury was empaneled, Wadsworth made an oral general demurrer to the third amended complaint based upon the statute of limitations; this general demurrer was sustained without leave to amend. The action was dismissed as to Wadsworth on 9 Dec. 75 and plaintiff appeals from that judgment of dismissal. (Code Civ.Proc. § 581d.)

Plaintiff's basic contention is that a defendant may be added to a complaint (Code Civ.Proc. § 474) even though the defendant's true identity is known and defendant's contention is that the original complaint fails to state any cause of action against her as a fictitiously named defendant and the statute of limitations had run ob any cause of action.

It is true that the original complaint stated no cause of action against any Does, except Does I-X who were alleged to be the owners of Penegar's vehicle. The accident is alleged to have occurred 14 Dec. 71 and the original complaint was filed 4 Dec. 72. Presumably, (although we do not know it to be so) Wadsworth was served as one of Does XI-XX. No cause of action was stated against such Does in the original complaint and, as to Does I-X, the only cause of action asserted was that they owned Penegar's vehicle.

The first amended complaint stated a cause of action against Wadsworth but the first amended complaint was not filed until 28 Aug. 73, after over a year had expired on the cause of action. Accordingly, we approach plaintiff's contention and disagree with it. Thus, a case upon which plaintiff relies, Austin v. Massachusetts Bonding & Insurance Co., 56 Cal.2d 596, 15 Cal.Rptr. 817, 364 P.2d 681 (1961) is readily distinguishable since, there, the plaintiff had pleaded, or attempted to plead, a cause of action against defendant bonding company. (See: Williams v. Goodman, 214 Cal.App.2d 856, 862, 29 Cal.Rptr. 877 [1963].) Nor does Barnes v. Wilson, 40 Cal.App.3d 199, 114 Cal.Rptr. 839 (1974) assist plaintiff since there, the original complaint had stated a cause of action against the owners of a tavern and the court held it was permissible to substitute defendants for the fictitiously named ones. We do not agree with plaintiff's basic contention and agree with defendant that, where an original complaint fails to state any cause of action against fictitiously named defendants and the statute of limitations has run, a thereafter-filed amendment cannot relate back to the original complaint, thus tolling the running of the statute of limitations.

The judgment is affirmed.

I dissent.

Although this case was remanded back to us by the California Supreme Court for reconsideration in light of Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 136 Cal.Rptr. 269, 559 P.2d 624, the majority finds that Smeltzley is not controlling and does not require any result different from that reached by the majority in its original unpublished opinion. The majority completely misreads the thrust and meaning of Smeltzley. The distinctions which the majority seeks to make between Smeltzley and the instant case are utterly unfounded and devoid of substance.

In some manner that defies comprehension the majority concludes that plaintiff's amendment in the case at bench does not seek recovery on the same general set of facts, which is the principle reiterated by Smeltzley, based upon Smeltzley's approval of this principle as it was developed in Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 15 Cal.Rptr. 817, 364 P.2d 681; Garrett v. Crown Coach Corp. (1968) 259 Cal.App.2d 647, 66 Cal.Rptr. 590; Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 86 Cal.Rptr. 465, 468 P.2d 825; and Barnes v. Wilson (1974) 40 Cal.App.3d 199, 114 Cal.Rptr. 839.

The majority sets forth as a significant difference between Smeltzley and the instant case that proof of the original allegation in Smeltzley that his employer had failed to provide plaintiff with a safe place to work normally would involve proof of the deficiencies in the machine manufactured by Nicholson, the defendant added in place of a Doe defendant in the amended pleadings, while in the instant case plaintiff must establish the conduct of decedent's driver. This alleged difference is meaningless. It suffers from the same fault which Smeltzley found in defendant Nicholson's arguments: ‘Nicholson's arguments, however, do not demonstrate that the original and amended complaint here do not relate to the same general set of facts within the Austin rule; they merely betray a misunderstanding of Austin and subsequent cases. In all of the cases discussed, supra, the original and amended complaints rested upon different theories and invoked different legal duties; consequently in each of those cases the facts necessary to prove liability under the amended complaint differed significantly from those required to prove liability under the original complaint. Thus in every such case proof of the facts alleged in the original complaint would not suffice to establish plaintiff's right to relief against the substituted defendant—otherwise plaintiff would have had no reason to amend the original complaint. In two cases, Garrett and Barnes, proof of the facts alleged in the amended complaint would not have established a right to relief against the original defendants. Nicholson's argument thus fails to offer any basis for distinguishing the present case from Austin and subsequent precedents.’ (Smeltzley, supra, 18 Cal.3d 932, at p. 940, 136 Cal.Rptr. 269, at p. 274, 559 P.2d 624, at p. 629.) (Emphasis in original.)

The majority's opinion not only fails completely to distinguish the instant case from Smeltzley and the cases cited with approval in the Smeltzley opinion, but in effect repudiates the crucial principle involved in the determination of a relation back of an amendment to avoid the bar of the statute of limitations: ‘[T]he test is whether the two complaints relate to the same general set of facts. And as we have explained, plaintiff's amended complaint, by seeking recovery for the same accident and injuries as the original complaint, complies with that test.’ (Smeltzley, supra, 18 Cal.3d 932, at p. 940, 136 Cal.Rptr. 269, at p. 274, 559 P.2d 624, at p. 629.) (Emphasis added.)

In the instant case, the amended complaint deals with the same accident—a three-car collision and the same injuries—as was presented in the original complaint, which is the situation presented in Smeltzley: ‘As we shall explain, since plaintiff's amended complaint seeks recovery for the same accident and injuries as the original complaint, it falls within the purview of the foregoing rule, and thus relates back to the date of filing of the original complaint. The trial court therefore erred in holding that plaintiff's cause of action against Nicholson was barred by the statute of limitations.’ (Smeltzley, supra, 18 Cal.3d 932, at p. 934, 136 Cal.Rptr. 269, at p. 270, 559 P.2d 624, at p. 625.)

The majority makes a second erroneous distinction between the instant case and Smeltzley by quoting from Garrett, one of the cases cited with approval in Smeltzley. The cited portion refers to the fact that the Garrett record did not challenge plaintiff's allegation that he was ignorant of the true name of Doe One. The majority converts this quotation into a holding that if plaintiff knows the name and identity of the person sought to be substituted in place of a Doe defendant, such as Rose Ann Wadsworth, the driver of the decedent's car in the instant case, the rule of relation back is inapplicable. The Smeltzley court did not cite or rely upon Garrett with respect to any issue of whether a plaintiff is aware of the name or identity of a person sought to be substituted for a Doe defendant. The Grudt decision of the California Supreme Court is decisive authority against the majority's view, because in Grudt, the plaintiff sued the City of Los Angeles on one theory and was permitted to amend the complaint to sue the same known defendant on an entirely different legal theory requiring proof of different facts. That it is an irrelevant consideration that plaintiff in the instant case knew the identity of Rose Ann Wadsworth, decedent's driver, is demonstrated by the holding in Barnes, cited with approval in Smeltzley and discussed subsequently in this opinion.

After setting forth the alleged distinctions between the instant case and Smeltzley which leads the majority to reject application of Smeltzley to the facts of the case at bench, the majority then reiterates its previously unpublished opinion. I shall do likewise and reiterate my previously unpublished dissent to the previously unpublished opinion of the majority:

I do not disagree with the legal principle relied upon by the majority—that where an original complaint fails to state, or fails to attempt to state, any cause of action against fictitiously named defendants and the statute of limitations has run, a thereafter-filed amendment cannot relate back to the original complaint to toll the running of the statute of limitations. It is my opinion that this principle is not applicable to the situation presented in the case at bench.

Contrary to the view of the majority, I do not consider that Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 15 Cal.Rptr. 817, 364 P.2d 681, is readily distinguishable from the instant case. Austin sets forth legal principles which lend substance to plaintiff's position that Rose Ann Wadsworth, though known to plaintiff at the time of filing of plaintiff's original complaint, could later be substituted for an original ‘Doe’ defendant in an amended complaint, with the result that the amendment would relate back to the original complaint for purposes of the statute of limitations. Thus, Austin points out that the legal principles regarding the substitution of ‘a true name’ for a ‘Doe’ defendant are derived from the policy of allowing amendments to a complaint where a party is designated a defendant by his true name. ‘The modern rule with respect to actions involving parties designated by their true names in the original complaint is that, where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts.’ (Austin, supra, 56 Cal.2d 596, at p. 600, 15 Cal.Rptr. 817, at p. 819, 364 P.2d 681, at p. 683.) (Emphasis added.)

In Austin, the character of the legal obligation alleged in the amended complaint against the defendant Massachusetts Bonding, substituted for a ‘Doe’ defendant in the original complaint, was different from that set forth in the original complaint, but the substitution of a true name defendant and the addition of a new theory of liability were held to relate back to the original complaint for purposes of the statute of limitations because both pleadings were considered to be based on the same general set of facts.

The Austin result is predicated on a policy principle. ‘The policy in favor of litigating cases on their merits is equally applicable whether a defendant is sued by a fictitious name or by his true name, . . .’ (Austin, supra, 56 Cal.2d 596, at p. 603, 15 Cal.Rptr. 817, at p. 820, 364 P.2d 681, at p. 684.) This same policy that favors litigating cases on their merits is equally applicable when a known person is sued by a fictitious name and plaintiff's knowledge of the legal liability of the known person does not surface until after the original complaint is filed.

I have no quarrel with the principle stated in Williams v. Goodman (1963) 214 Cal.App.2d 856, 861, 29 Cal.Rptr. 877, 881 and relied upon by the majority: ‘It is established that where a defendant is designated by a fictitious name in an original complaint and no attempt is made therein to state any cause of action against such defendant, the statute of limitations is not tolled as to such defendant.’ (Emphasis in original.) In Williams, however, the only allegations against fictitiously named defendants were to the effect that the true names of the Doe defendants were unknown to the plaintiff and that the true names would be shown by amendment to the complaint when so ascertained. This is not the situation presented in the case at bench.

The instant case is not unlike that of Barnes v. Wilson (1974) 40 Cal.App.3d 199, 114 Cal.Rptr. 839. In Barnes, a wrongful death action, the original complaint alleged that the named defendant owners of the Golden Glove Tavern negligently failed to warn patrons of, and provide protection to patrons against, the unreasonable risk created by the presence of the assailant who killed the plaintiffs' decedent by a stabbing. The complaint alleged, with respect to Doe defendants, ‘that each of the defendants designated herein as a Doe is negligently responsible in some manner for the events and happenings herein referred to, and negligently caused injuries and damages proximately thereby to plaintiff as herein alleged; . . .’ (Barnes, supra, 40 Cal.App.3d 199, at p. 201, 114 Cal.Rptr. 839, at p. 841.) In Barnes, after the statute of limitations had run and after Vesely v. Sager (1971) 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151, had created liability against a vendor of alcoholic beverages for furnishing such beverages to a customer who injured third persons as a result of being intoxicated, plaintiffs amended their complaint and substituted the Noyds for Doe defendants, alleging that the Noyds were the owners of another tavern, the Copper Door, which had served liquor to the assailant before he came to the Golden Glove Tavern. Barnes held that the amendment substituting the Noyds for Doe defendants came within the principle enunciated in Austin that an amendment will relate back to the date of filing of the original complaint if recovery is sought on the ‘same general set of facts' as those alleged in the original complaint. Thus, the Barnes court held that the Barnes plaintiffs, by their amendments to the complaint, were seeking ‘to hold the Noyds responsible for the same occurrence and damage alleged in the original complaint.’ (Barnes, supra, 40 Cal.App.3d 199, at p. 205, 114 Cal.Rptr. 839, at p. 843.) (Emphasis added.)

In the case at bench, a wrongful death action, the original complaint stated, or attempted to state, a cause of action against the Doe defendants with as much specificity as that held sufficient in Barnes. Paragraph I of the original complaint alleged that defendants Does I through XX were being sued by such fictitious names. Paragraph II alleged that defendant Penegar was driving a 1965 Chevrolet. In Paragraph III, it was alleged that defendants Does I to X were the registered owners of said vehicle being driven by defendant Penegar. Paragraph VI alleged that plaintiff's decedent was riding as a passenger in an automobile (not described) being driven by Wadsworth on a specified date at a specified location. Paragraph VI then concluded with the allegation that ‘[a]t said time and place the defendants and each of them so negligently and carelessly, drove, operated, maintained, controlled and entrusted their vehicle as to collide with the rear of the vehicle in which plaintiff was riding and forcing it to collide with the vehicle ahead of it, proximately causing the death of the decedent, Maude E. Russell.’ (Emphasis added.)

It is significant that, in the original complaint in the case at bench, only Does I through X are alleged to be the owners of said vehicle—the Chevrolet being driven by defendant Penegar, but, in Paragraph VI, no reference is made to said vehicle or to the Chevrolet or to any vehicle being driven by defendant Penegar. The allegation in Paragraph VI that ‘the defendants'—of necessity including Does XI through XX—negligently caused a three-vehicle collision, is just as specific in attempting to state a cause of action against all Doe defendants, as is the allegation held sufficient in Barnes, to permit an amendment to substitute Wadsworth as a defendant by her true name for a Doe defendant and to allege a new theory of liability against Wadsworth.

The new theory of liability, sought to be asserted against Wadsworth in the case at bench, resulted from the fact that the California Supreme Court decided Brown v. Merlo (1973) 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, after the filing of plaintiff's original complaint. Brown created a new liability against a vehicle's driver in favor of a passenger, declaring the former guest statute unconstitutional. The fact that plaintiff knew that Wadsworth was the driver of the vehicle in which plaintiff's decedent was a passenger is not a relevant consideration.

As stated in Barnes, ‘[t]he phrase ‘when the plaintiff is ignorant of the name of a defendant’ in Code of Civil Procedure section 474 has not been interpreted literally. The plaintiff is deemed ‘ignorant of the name’ if he knew the identity of the person but was ignorant of facts giving him a cause of action against the person [citations], or knew the name and all the facts but was unaware that the law gave him a cause of action against the fictitiously named defendant and discovered that right by reason of decisions rendered after commencement of the action. [Citations.]' (Barnes, supra, 40 Cal.App.3d 199, at p. 205, 114 Cal.Rptr. 839, at p. 844; see also Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 86 Cal.Rptr. 465, 468 P.2d 825; Garrett v. Crown Coach Corp. (1968) 259 Cal.App.2d 647, 66 Cal.Rptr. 590.)

To hold that the flimsy allegation that ‘each of the defendants designated herein as a Doe is negligently responsible in some manner for the events and happenings herein referred to, and negligently caused injuries and damages proximately thereby to plaintiff as herein alleged’ (Barnes, supra, 40 Cal.App.3d 199 at p. 201, 114 Cal.Rptr. 839, at p. 841), is the only way a plaintiff can attempt to state an unknown cause of action against a Doe defendant is to exalt form over substance, and is contrary to the policy announced in Austin of favoring liberality in the amendment of pleadings to promote a policy in favor of litigating cases on their merits.

I would reverse the judgment from which plaintiff has appealed.

DUNN, Associate Justice.

KINGSLEY, Acting P. J., concurs.