Balon v. Drost

20 Cal. App. 4th 483, 25 Cal. Rptr. 2d 12, 93 Cal. Daily Op. Serv. 8877, 1993 Cal. App. LEXIS 1207

• Court: California Court of Appeal
• Decided: November 1, 1993
• Docket: A060232
• Status: Published

Opinions

Opinion

KLINE, P. J.—

Introduction

Appellant Deanna Balón appeals the trial court’s order granting respondent Shawn G. Hurley’s motion to quash service of summons and complaint. Appellant contends the trial court erred when it found appellant did not comply with Code of Civil Procedure section 474.¹ We agree, and therefore shall reverse.

Statement of the Facts and Case

On December 28, 1990, appellant was involved in a traffic collision with a vehicle driven by Shawn Hurley (hereinafter respondent), but owned by Ethel Drost. Immediately after the accident, appellant and respondent went to a nearby doughnut shop to call the police and exchange information.

Once inside the doughnut shop, respondent called the police and his girlfriend. Soon after, respondent’s girlfriend arrived; she saw respondent give appellant a piece of paper with respondent’s name and other information on it. Appellant, however, felt dazed from the collision, and subsequently forgot about the slip of paper and respondent’s identity.

Appellant filed a claim with the owner’s insurance carrier, the California State Automobile Association (CSAA). Over the next several months, appellant attempted to work out a settlement with CSAA. Appellant never asked CSAA for the name of the vehicle’s driver, and CSAA never offered this information.

On December 6, 1991, appellant retained an attorney. At their initial interview, appellant could not tell her attorney the name of the driver of the vehicle. On December 10, 1991, appellant’s attorney requested a copy of the accident report from the Oakland Police Department. On December 26, 1991, two days before the one-year statute of limitations under section 340, subdivision (3), was set to expire, appellant’s attorney filed a complaint naming Ethel Drost and unknown “Does" as defendants.

Appellant’s attorney did not receive the accident report until after the statute of limitations had run. After reading the accident report, he discovered respondent drove the vehicle in question. On January 9, 1992, the attorney filed an amendment to the complaint under section 474 naming respondent as a Doe defendant and declaring—as the statute requires—that appellant did not know respondent’s identity when she filed the original complaint.

On January 12, 1992, appellant’s attorney served Drost and respondent with a summons and complaint. On February 11, 1992, Drost filed an answer to the complaint. On October 15, 1992, respondent entered a special appearance to bring a motion to quash service of the summons and complaint.

On October 20, 1992, appellant’s attorney contacted appellant seeking a written statement that she did not previously know the identity of the driver involved in the accident. Appellant stated she could not recall respondent’s identity until her attorney told her respondent’s name during their October 20, 1992, communication.

On November 6, 1992, the trial court granted respondent’s motion to quash service of the summons and complaint. On December 22, 1992, the trial court denied appellant’s motion for reconsideration of the order granting respondent’s motion to quash.

On December 30, 1992, appellant filed a timely notice of appeal.

Discussion

Appellant contends the trial court erred in finding she did not comply with section 474 and in granting respondent’s motion to quash service of the summons and complaint. We agree, and reverse for respondent’s reinstatement as a party defendant.

Section 474 provides, in pertinent part, as follows: “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; . . .” The trial court’s decision to grant respondent’s motion to quash rested both upon an interpretation of section 474 and upon appellant’s conduct.² “The trial court’s statement of decision [thus] contains both findings of fact and conclusions of law. We review the trial court’s findings of fact to determine whether they are supported by substantial evidence. [Citation.] To the extent the trial court drew conclusions of law based upon its findings of fact, we review those conclusions of law de novo. [Citation.]” (Westfour Corp. v. California First Bank (1992) 3 Cal.App.4th 1554, 1558 [5 Cal.Rptr.2d 394].)

Under section 474, “[a] plaintiff ignorant of the identity of a party responsible for damages may name that person in a fictitious capacity, a Doe defendant, and that 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. [Citation.] When the complaint is amended to substitute the true name of the defendant for the fictional name, the defendant is regarded as a party from the commencement of the suit.” (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946 [154 Cal.Rptr. 472], fn. omitted.)

“Section 474, however, ... is restricted to the knowledge of the plaintiff at the time of the filing of the complaint.” (Munoz v. Purdy, supra, 91 Cal.App.3d at p. 947; see also Westfour Corp. v. California First Bank, supra, 3 Cal.App.4th at pp. 1559-1560; Sobeck & Associates, Inc. v. B & R Investments No. 24 (1989) 215 Cal.App.3d 861, 867 [264 Cal.Rptr. 156]; Streicher v. Tommy’s Electric Co. (1985) 164 Cal.App.3d 876, 882 [211 Cal.Rptr. 22].) “The lack of knowledge of the true name of the defendant . . . must be ‘real and not feigned.’ [Citation.] . . . ‘Ignorance of the facts is the critical issue, and whether it be due to misinformation or negligence is not relevant. ’ [Citations.]” (Munoz v. Purdy, supra, at p. 947; see also Irving v. Carpentier (1886) 70 Cal. 23 [11 P. 391]; Westfour Corp. v. California First Bank, supra, at pp. 1559-1560.) Under section 474, therefore, a plaintiff has no duty “to exercise reasonable diligence prior to filing the complaint to discover the defendant’s identity.” (Snoke v. Bolen (1991) 235 Cal.App.3d 1427, 1432 [1 Cal.Rptr.2d 492].)

In his brief and during oral argument respondent relied on Schroeter v. Lowers (1968) 260 Cal.App.2d 695 [67 Cal.Rptr. 270] for the proposition that a plaintiff’s ignorance of a defendant’s true name “must not be wilful ignorance, or such as might be removed by some inquiry or resort to information easily accessible.” (Id., at p. 700.) This is not only dicta, since the plaintiff in Schroeter was not ignorant of a defendant’s name, but it incorrectly states the law. In fact, our Supreme Court has expressly concluded that section 474 imposes no duty of inquiry. In Irving v. Carpentier, supra, the court explained, “[w]hether [the plaintiff’s] ignorance is from misfortune or negligence, he is alike ignorant, and this is all the statute requires.” (Irving v. Carpentier, supra, 70 Cal. at p. 26; Hoffman v. Keeton (1901) 132 Cal. 195, 197 [64 P. 264]; Munoz v. Purdy, supra, 91 Cal.App.3d at p. 947.) In light of this controlling Supreme Court authority we decline to follow Schroeter.

In this case the trial court ignored the relevant Supreme Court cases and concluded appellant “had a duty of inquiry,” and that “[s]he did ignore the fact that there was another party that she could have easily identified.” The court apparently was under the erroneous impression that appellant could not employ section 474 if she acted negligently; however, California law clearly states that “. . . constructive or legal knowledge will not deprive [appellant] of the [section 474] remedy.” (Sobeck & Associates, Inc. v. B & R Investments No. 24, supra, 215 Cal.App.3d at p. 867.)³ Clearly, if a plaintiff has no duty to exercise even “reasonable diligence” to discover a

defendant’s name (Snoke v. Bolen, supra, 235 Cal.App.3d at p. 1432), he or she may act unreasonably in failing to ascertain a defendant’s name and still claim the benefit of section 474. We thus cannot agree with our dissenting colleague’s view that section 474 imposes on plaintiffs the obligation to discover “ ‘readily accessible’ information.” (Dis. opn., post, at p. 493.)

The record indicates appellant did not know respondent’s identity when she filed her complaint. Even though appellant may have acted negligently when she forgot respondent’s name and never inquired about it, appellant named Doe defendants in her original complaint, which she filed before the statute of limitations expired. The subsequent amended complaint naming respondent—which appellant filed a mere two weeks after the original complaint—thus “relate[d] back to satisfy the statute of limitations.” (Streicher v. Tommy’s Electric Co., supra, 164 Cal.App.3d at p. 882; see also Munoz v. Purdy, supra, 91 Cal.App.3d at p. 946; Snoke v. Bolen, supra, 235 Cal.App.3d at p. 1431.)⁴

The record, however, also may be read to suggest the trial court found appellant was guilty of more than mere negligence. Specifically, the court stated, “I think [appellant] ignored as opposed to being just uninformed. . . . She did ignore the fact that there was another party that she could easily have identified.” Although we believe the trial court’s statement merely reflects appellant’s negligence, if the court instead meant appellant willfully or intentionally misused section 474, the record does not support such a finding.

Nothing in the record indicates appellant named a “defendant in a fictitious manner hoping to surprise [respondent] by reviving ‘claims that have been allowed to slumber until evidence has been lost, memories have faded and witnesses have disappeared.’ [Citation.]” (Munoz v. Purdy, supra, 91 Cal.App.3d at pp. 946-947.) To the contrary, the record reveals appellant felt she could settle with CSAA directly, but when the statute of limitations date approached, she decided to retain an attorney to file a complaint. When appellant’s attorney inquired about the identity of the driver appellant could not recall respondent’s name, either due to her mental state at the time of the accident or her own forgetfulness.⁵ The fact appellant amended her original complaint after only two weeks further indicates she had no design to use section 474 beyond its intended purpose, for such a short period of time could not have significantly prejudiced respondent or provided an advantage to appellant.

Appellant’s conduct thus demonstrates carelessness, not a willful misuse of section 474. If the trial court believed appellant had acted more than negligently, therefore, the record does not support that finding with substantial evidence. (See Westfour Corp. v. California First Bank, supra, 3 Cal.App.4th at p. 1558.) Accordingly, the trial court erred when it granted respondent’s motion to quash service of the summons and complaint.

The judgment is reversed and remanded for respondent’s reinstatement as a party defendant. Appellant shall recover costs on appeal.

Benson, J., concurred.

1 All further statutory provisions refer to the Code of Civil Procedure.

2 The trial court stated the following:

“. . . I think [appellant] ignored as opposed to being just uninformed. And that’s a difference. Ignorant is often used incorrectly in speech. And it is used that way in the statute I think. [j|] Because I don’t think they meant to say that. But I think that’s what she did in fact do. She did ignore the fact that there was another party that she could easily have identified.” “She’s got to have a real good reason why she didn’t ask [for respondent’s name] . . . .” “She had a duty of inquiry . . . under the cases.”

“. . . I think that the duty of inquiry kicks in here. And I can’t read the statute to say ignorance in the sense that she ignored. Because the case law doesn’t read it that way, and that wouldn’t be correct, [fl] So to that extent, cases like Jolly [Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 (245 Cal.Rptr. 658, 751 P.2d 923)] agree with me that the statute incorrectly uses the term.”

3 The trial court incorrectly relied on “cases like” Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103. Jolly involved the discovery rule applicable to the commencement date of a statute of limitations. In that situation, “. . . the statute of limitations begins to run when the plaintiff suspects or should suspect [wrongdoing].” (Id., at p. 1110, italics added.) A plaintiff’s “duty to reasonably investigate” (id., at p. 1112) regarding the accrual date of a cause of action, however, does not apply to a plaintiff’s ability to include and later identify Doe defendants in a complaint under section 474.

4 Respondent asserts that California courts have not expanded the lack of a reasonable inquiry standard “into an imprimatur for unreasonable conduct.” (Italics in original.) Section 474, however, “enable[s] a plaintiff to avoid the bar on the statute of limitations where [the plaintiff] is ignorant of the identity of the defendant.” “ ‘[W]hether [the ignorance] be due to misinformation or negligence is not relevant.’ [Citation.]” (Munoz v. Purdy, supra, 91 Cal.App.3d at pp. 946, 947, italics added.)

As far as we can discern, if the law permits negligence, then the law provides an “imprimatur for unreasonable conduct.” Moreover, the Legislature apparently viewed this imprimatur for unreasonableness as necessary both to offset the harsh effect of the statute of limitations when a plaintiff does not know a defendant’s identity and to advance the state’s interest in deciding cases on their merits. (See Munoz v. Purdy, supra, 91 Cal.App.3d at pp. 946-947; Sobeck & Associates, Inc. v. B & R Investments No. 24, supra, 215 Cal.App.3d at p. 867.)

5 In fact, respondent apparently believed appellant used section 474 “to relieve [herself] from the consequences of her own forgetfulness.” From our perspective, forgetfulness indicates a degree of carelessness, not willful design.