Ingram v. Superior Court

98 Cal. App. 3d 483, 159 Cal. Rptr. 557, 1979 Cal. App. LEXIS 2290

• Court: California Court of Appeal
• Decided: November 6, 1979
• Docket: Civ. 17318
• Status: Published

Opinions

Opinion

EVANS, J.

Petitioner, Scott E. Ingram, seeks a writ of mandate directing the Superior Court of Sutter County to vacate its order striking petitioner’s amendment to his complaint and its order of substitution, or in the alternative, to vacate its order denying petitioner’s motion to amend his complaint. Petitioner contends that Russell Marvin Parks (who was killed in the same accident in which petitioner was injured) is identified as an intended defendant in the complaint, although not in the caption; accordingly, he argues neither of the requested amendments sets forth a new cause of action, and the statute of limitations is therefore not a bar to amendment. Petitioner asserts that amendments to complaints should be liberally allowed and that for this reason the court abused its discretion in striking the first amendment and in refusing the second amendment.

On February 27, 1975, petitioner filed a complaint for damages due to negligence, naming as defendants Robert Lyndell Richardson, Mary Lois Slinkard, and Does I through X and alleging the following facts. Petitioner was born September 18, 1956, and was a minor at the time of the accident. Defendants Slinkard and Doe I were the owners of a 1954 Ford pickup truck and with Doe II had consented to its use by Russell Marvin Parks. Defendants Richardson and Does III and IV were the owners of a 1964 Ford Fair lane and had consented to its operation by Richardson. On or about October 6, 1972, petitioner was a passenger in the pickup, while Richardson was driving the Fairlane easterly on Franklin Road. Richardson and Parks each operated the respective vehicles so negligently that they collided. As a result petitioner was injured and sought damages.

Slinkard answered the complaint on November 11, 1975; she admitted ownership and permissive use of the 1954 pickup. She further admitted that Richardson was operating a 1964 Fairlane automobile at that time. She denied all other allegations, including that Parks was negligent or careless. As affirmative defenses Slinkard alleged assumption of the risk, contributory negligence, and that defendants other than she were responsible for the injuries.

On November 12, 1975, Richardson answered the complaint. He admitted that Parks had negligently caused the collision, and denied all other allegations. As an affirmative defense Richardson alleged contributory negligence on petitioner’s part.

On November 20, 1975, petitioner served his at-issue memorandum and certificate of readiness, and therein stated that all essential parties had been served or had appeared and the case was at issue as to all such parties. To counsel’s knowledge no other party would be served with process, and no pleading was to be served or remained unanswered.

Trial was set for July 20, 1976, with pretrial and settlement conference set for July 7, 1976. On July 1, 1976, counsel for petitioner filed a pretrial statement in which he described the proceedings as an action for personal injury by petitioner against “defendants, Robert Lyndell Richardson and Mary Lois Slinkard.” He asserted the issues to be the negligence of Richardson, the negligence of Parks, Slinkard’s liability, the injury suffered, and contributory negligence.

On July 7, 1976, the scheduled conference was held, and thereafter the court prepared a memorandum of the conference in which it was noted that the action was for personal injuries sustained in a collision between a vehicle owned and operated by Richardson and one in which petitioner was riding owned by Slinkard and operated with her permission by Parks, who died in the accident. The court inquired and was informed that all fictitious defendants could be dismissed. The parties agreed that all necessary parties were before the court, the issues were joined, and no amendments to the pleadings were required.

Upon inquiry, the court was advised that a settlement offer of $22,500 had been refused. Petitioner’s counsel stated that Slinkard was insured for $50,000 and Richardson $25,000, and that petitioner’s case was worth the full value of both policies. Slinkard’s counsel offered $15,000; in private he advised the court that Slinkard’s derivative liability was limited to $15,000 for injuries caused by a permissive user; and since Parks, the driver, or his estate, had not been sued, there was no coverage as to him. By agreement the court advised all parties of this matter. Upon being so informed, petitioner’s counsel withdrew his permission to dismiss the fictitious defendants and noted that he would move for appointment of a special administrator and seek to join the special administrator as a defendant. The case was taken off calendar.

On March 17, 1977, petitioner presented a written ex parte motion for permission to amend his complaint to set forth in the title as named defendant (not as a substitute for a fictitious defendant) “The Estate of Russell Marvin Parks.” Petitioner- argued that in the body of the complaint, although not in the caption, Parks was described a defendant. The amendment was argued to be merely an amendment as to form and not one adding a new party or stating a new cause of action. The motion was granted ex parte on March 24, 1977.

Petitioner’s counsel then filed a probate petition in Sutter County Superior Court to have Kay Wilcoxen appointed administratrix of the estate of Parks, and the petition was granted on May 13, 1977. Petitioner then filed a written ex parte motion to substitute Kay Wilcoxen in the place of the estate of Parks as a defendant, and the motion was granted and an order of substitution issued the same day, June 14, 1977.

By motion dated June 24, 1977, defendant Slinkard moved to strike the amendment and order of substitution. The motion was on the grounds that the amendment and order of substitution were made without notice in violation of Code of Civil Procedure section 473, that the amendment brings in a new party, that the amendment asserts a new cause of action, and that the statute of limitations prevents amendment. In his declaration in support of the motion, counsel stated that back on November 8, 1976, in an earlier probate proceeding, Slinkard herself had been appointed administratrix of the estate of Parks and letters of administration had been issued to her by the same court. He also stated that Parks was not a named defendant in the complaint.

Petitioner opposed the motion to strike, and in a declaration his counsel alleged that when he filed the complaint he intended that Parks be a defendant and believed Parks was a defendant at the time of the pretrial and settlement conference. Counsel for petitioner presented a formal motion to again amend the complaint to substitute for defendant Kay Wilcoxen “‘Mary Lois Slinkard as Adminstrator of the estate of Russell Marvin Parks.’”

The motions to strike and to amend were ultimately argued and submitted, and petitioner’s counsel submitted a further declaration stating that at the time he filed the complaint he “believed Russell Marvin Parks to be a Defendant in said lawsuit, and all actions taken thereafter by your declarant were done with the belief that Russell Marvin Parks was a Defendant in said action.” On September 16, 1977, the court granted the motion to strike the amendments and order of substitution.

On November 10, 1977, petitioner filed the present petition. We issued an order to show cause.

I

Slinkard contends that a writ of mandate is an inappropriate remedy since petitioner has an adequate remedy at law. She alleges that the order of the trial court striking the amendments to the complaint and substitution of parties, and the denial of permission to amend are appealable orders.

Although an order denying leave to amend a complaint is not an appealable order (Randall v. Beber (1950) 101 Cal.App.2d 179, 180-183 [225 P.2d 291]), nor are orders denying substitution of parties (ibid.) and granting a motion to strike parts of a pleading (Shank v. Los Gatos Associates (1961) 193 Cal.App.2d 824, 825 [14 Cal.Rptr. 726]), when such orders have the effect of eliminating issues between a plaintiff and defendant so that nothing is left to be determined, the order is a final judgment and is appealable. (Wilson v. Sharp (1954) 42 Cal.2d 675, 677 [268 P.2d 1062].) Here the court’s action had the effect of eliminating the estate of Parks from the case, and hence was appealable.

But although appeal was available, petitioner contends that it is not an adequate remedy. To force petitioner to wait for an appeal would delay the decision as to the estate’s liability and could result in a second trial. By issuing the order to show cause we necessarily determined that there is no adequate remedy in the ordinary course of the law, and that an extraordinary writ is appropriate. (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 492 [96 Cal.Rptr. 553, 487 P.2d 1193]; San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 945 [92 Cal.Rptr. 309, 479 P.2d 669]; Maddern v. Superior Court (1972) 22 Cal.App.3d 998, 1002 [99 Cal.Rptr. 832].) Since no purpose but delay would be served by reviewing our decision in issuing the order to show cause, we do not reconsider that decision now. (Weber v. Superior Court (1960) 53 Cal.2d 403, 406 [2 Cal.Rptr. 9, 348 P.2d 572].)

II

Petitioner contends that the complaint identifies Parks as a defendant and that the requested amendments are merely to correct defects in form. He cites his counsel’s declarations in support of this position, but in distinguishing form from substance we must look at what the complaint says, not what counsel subjectively believes.

The complaint charges that Parks’ negligence caused petitioner’s injuries. But it does not designate Parks or his estate as a defendant, entirely omitting them from the caption where defendants are listed. The form of such complaint is particularly relevant when viewed with counsel’s later actions. Counsel made no attempt to open an estate or secure service upon a representative of Parks. He filed his at-issue memorandum after Slinkard and Richardson had answered, and stated that all essential parties had been served or had appeared, and that no other party was to be served. In his pretrial statement he identified the defendants as Richardson and Slinkard only; and identified the issues as “The negligence of the defendant, Robert Lyndell Richardson. [11] The negligence of Russell Marvin Parks and the liability of Mary Lois Slinkard.” He did not seek relief against Parks or Parks’ estate. Despite his declaration, it is impossible to believe that he considered a dead person to be a defendant; and his actions belie any claim, if such claim is made, that he considered the “Estate of Parks” a defendant. Hence we reject petitioner’s argument that Parks was a named and intended defendant throughout.

Ill

Concededly, at the time the amended complaint was lodged with the court, the one-year statute of limitations had run (Code Civ. Proc., § 340); consequently, our principal concern is whether a deceased person, charged with negligence in a complaint but not named as a defendant, may be added as a defendant after the statute of limitations has run. It should be emphasized that the petitioner did not attempt to substitute the estate of Parks for one of the Does, nor does it appear under the circumstances that he would have been entitled to do so; this distinguishes the case from the precedential effect of Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932 [136 Cal.Rptr. 269, 559 P.2d 624, 85 A.L.R.3d 121].

Decisional authority has evolved a liberal rule in permitting plaintiffs to amend pleadings and to substitute named defendants for charged fictitious defendants without incurring the bar of the statute of limitations; this is so in order that cases may be fairly decided on their merits. (See ibid.; Barnes v. Wilson (1974) 40 Cal.App.3d 199, 204 [114 Cal.Rptr. 839].) Petitioner seems to argue on such authority that his error was one of clerical omission in failing to include Parks or his estate and that the proposed amendment adding the estate as a defendant was merely corrective of an honest mistake of omission in form. We do not perceive the circumstances that way.

Amendment to correct a simple mistake in the naming of a party must be sharply distinguished from the question of whether the correctly named party is actually being joined in that action for the first time under the guise of correcting a mistake in form. The mistake or ignorance causing the omission must be real, not feigned. (Wallis v. Southern Pac. Transportation Co. (1976) 61 Cal.App.3d 782 [132 Cal.Rptr. 631].)

While we recognize the Supreme Court’s liberal attitude toward allowing amendments of pleadings to avoid the harsh result imposed by a statute of limitations, that attitude is not unfettered by reasonable requirements. Some discipline in pleading is still essential to the efficient processing of litigation. In the case of a change in pleading theory, present authority permits amendment following expiration of the statute of limitations, and the amended complaint will be deemed filed as of the date of the original pleading provided recovery is sought in both pleadings on the same general set of facts. (Smeltzley v. Nicholson Mfg. Co., supra, 18 Cal.3d 932; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600 [15 Cal.Rptr. 817, 364 P.2d 681].) Similarly, in the case of substitution of a named defendant for a fictitiously named and charged defendant, great liberality is allowed. However, a party may only avail himself of the use of naming Doe defendants as parties when the true facts and identities are genuinely unknown to the plaintiff. (See Johnson v. Goodyear Tire & Rubber Co. (1963) 216 Cal.App.2d 133 [30 Cal.Rptr. 650].) None of the described circumstances are here present so that the amendment should be allowed. As disclosed by the record, the sole and only factor unknown to petitioner prior to the time the amendment was offered was the limitation on Slinkard’s insurance policy for liability arising out of permissive use; and this involves not a question of fact but one of law. The effect of the proposed amendment thus would be to name a new party without justifiable cause after the statute has run. The straightforward rule is that amendment after the statute of limitations has run will not be permitted when the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding. (Stephens v. Berry (1967) 249 Cal. App.2d 474, 478 [57 Cal.Rptr. 505].) That rule is here applicable.

As above noted, we refuse to conclude as alleged by petitioner that he had at all times intended Parks and his estate to be a defendant charged with liability for the injuries. Rather, it unequivocally appears that for whatever reason, petitioner did not intend to direct the action against Parks or his estate. He demonstrates this beyond any question when he asserts in his pretrial statement that the issues are “The negligence of the defendant, Robert Lyndell Richardson. [1Í] The negligence of Russell Marvin Parks and the liability of Mary Lois Slinkard.” (Italics added.) The complaint itself discloses a clear intention contrary to that proffered by petitioner’s counsel. It seeks to establish liability against Slinkard only (along with Richardson) and not against Parks’ estate, and seeks to achieve such liability by Parks’ negligence as a permissive user. The amendment was sought only after discovery that Slinkard’s insurance responsibility for injury arising out of permissive use was limited to the $15,000 provided by law. (Veh. Code, § 17151.) The amendment was not calculated to correct a clearly defined or obvious error of omission, as would be the case of a misnomer of a defendant.

The authorities relied upon by petitioner all correctly state the law of pleading amendment and relation back. However, they are in each instance factually inapposite and not applicable. (See Barnes v. Wilson, supra, 40 Cal.App.3d 199; Thompson v. Palmer Corporation (1956) 138 Cal.App.2d 387 [291 P.2d 995].)

The order to show cause previously issued is discharged, and the petition for writ of mandate denied.

Paras, Acting P. J., concurred.