Opinion
F040607
7-30-2003
BARBARA ANN CARTER et al., Plaintiffs and Appellants, v. STANLEY S. KOH et al., Defendants and Respondents.
Robert B. Amidon, A Law Corporation, and Robert B. Amidon for Plaintiffs and Appellants. McCurdy & Leibl, LLP, and Michael Miretsky for Defendants and Respondents.
In July 1999, during a dental procedure, appellant Barbara Carter suffered a transected choked nerve, which caused paresthesia and loss of sensation in her tongue and in parts of her face. On October 23, 2000, Carter and her husband, Jimmy, filed an action against Tommy S. Specht, DDS, Jerry J. Woolf, DDS, Woolf Southwest Dental Center, and Does 1 through 50, alleging professional negligence, breach of oral promises, violation of Business and Professions Code, section 17200 (unlawful business practices), and loss of consortium (Kern County Superior Court case No. 242731 JES).
We refer to Barbara Carter as "Carter" and to both appellants collectively as "appellants."
By the time the motion to quash was heard, judgment had been entered against the named defendants, Woolf and Specht, and Woolf Southwest Dental Center, after a section 998 offer had been made and accepted.
On November 28, 2001, appellants sought leave, pursuant to Code of Civil Procedure section 474, to amend the complaint to substitute respondents Stanley S. Koh, DDS, and Stanley S. Koh, DDS, Inc., as Does 1 and 2, respectively. Carter had been referred to Koh after her injury by either Specht or Woolf. Koh saw Carter once and told her that recovery from the nerve damage was a "waiting game." Koh did not follow up with Carter or ask her to return. The court granted leave to amend on December 4, 2001, and respondents were served with the amendment soon afterwards.
All further references are to the Code of Civil Procedure.
The claim alleged against Koh was that he negligently failed to diagnose Carters injury as a lingual nerve damage and failed to refer Carter for exploratory and repair surgery.
Based on the same facts as those alleged in the complaint in case No. 242731 JES, appellants filed an entirely new complaint, as Kern County Superior Court case No. 246491 SPC, naming respondents as defendants and alleging misrepresentation, violation of Business and Professions Code section 17200 and loss of consortium. Appellant represents, with no record support, that this second action was dismissed "upon threat of CCP § 128.7 sanctions by counsel for Dr. Koh and his medical corporation." Appellant has asked that we take judicial notice of the superior courts file in case No. 246491 SPC. We decline to do so. Although we may take judicial notice of the records of a California court (Evid. Code, § 452, subd. (d)), it is appellants responsibility to provide us with certified copies of the pertinent documents. (People v. Preslie (1977) 70 Cal. App. 3d 486, 495, 138 Cal. Rptr. 828; Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 744.) Appellants have not done so, and the documents are not otherwise a part of the appellate record. Moreover, even if the documents were proper subjects of judicial notice, appellants have made no showing that any are relevant to the issues appellants raise here. (Evid. Code, § 350; Mozzetti v. City of Brisbane (1977) 67 Cal. App. 3d 565, 578, 136 Cal. Rptr. 751.)
Respondents moved to quash the service of the amendment; they argued they were improperly served as Doe defendants. The trial court granted respondents motion, and found that appellants had "actual knowledge of both the existence and identity of these Doe defendants as well as the specific facts giving rise to a basis for liability on the part [of] these Doe defendants at the time the original complaint was filed." In addition, the court ordered the action dismissed on the ground the statute of limitations had run as to respondents "not later than October 23, 2001."
No motion to dismiss had been filed, although respondents did argue the statute of limitations and laches in their moving papers.
Appellants appeal from the March 8 order dismissing the action and from the April 30 order denying their application for reconsideration/new trial.
DISCUSSION
I.
The motion to quash by respondents was a proper means of challenging the Doe substitutions and the court did not err in granting the motion.
A.
Because respondents were sought to be served as unnamed fictitious defendants, not as named defendants, appellants were required to comply with section 474. (See Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177 [courts may require strict compliance with § 474].) Improper service of a defendant under the statute may be attacked by a motion to quash. (Optical Surplus, Inc. v. Superior Court (1991) 228 Cal. App. 3d 776, 783, 279 Cal. Rptr. 194 [trial court is required, as a matter of law, to grant motion to quash service of summons when party is wrongly served as doe defendant]; Kline v. Beauchamp (1938) 29 Cal. App. 2d 340, 342, 84 P.2d 194 [one "who is not named either by his true or a fictitious name or as an unknown defendant is not a proper party to an action, and service of summons upon such person upon proper motion should be quashed"]; Fuss v. City of Los Angeles (1958) 162 Cal. App. 2d 643, 646, 328 P.2d 831 [same].)
Appellants argue in part that respondents motion to quash was not a challenge to personal jurisdiction but instead was a "disputed statute of limitations argument." While the moving papers filed by respondents did include contentions concerning the relation back doctrine and the running of the statute of limitations, the papers relevant to the motion make clear it was brought on the ground that the Doe amendments were improper because "plaintiffs were aware of the moving parties identity as well as the nature and extent of their alleged injury at the time of the filing of their Complaint."
B.
The trial courts ruling was correct because appellants were not ignorant of either respondents identity when the original complaint was filed. When a plaintiff is ignorant of a defendants identity, the plaintiff may state that fact in the complaint and name such defendant by a fictitious name, and then, when the true name of the person is determined, he or she may be brought into the action for a fictitiously named defendant by an amendment to the complaint. (§ 474.) This procedure is available, however, only if the plaintiff is actually ignorant of the facts establishing a cause of action against the person sought to be substituted for a fictitiously named defendant. (Optical Surplus, Inc. v. Superior Court, supra, 228 Cal. App. 3d at p. 783 [under § 474, it is necessary that the plaintiff actually be ignorant of the name or identity of the fictitiously named defendant at the time the complaint is filed]; Munoz v. Purdy (1979) 91 Cal. App. 3d 942, 947-949, 154 Cal. Rptr. 472.)
The knowledge of a potential defendants identity that precludes substitution of the person for a fictitiously named defendant does not comprehend knowledge of all the details of the persons involvement in the alleged cause of action, nor does it comprehend that the plaintiff has conclusive evidence of the persons liability — the standard advocated by appellants in their brief. (See Dover v. Sadowinski (1983) 147 Cal. App. 3d 113, 116-118, 194 Cal. Rptr. 866 [no actual ignorance where doctor was known to patient as a treating physician and where attorney states plaintiff knew doctor was involved but did not know "how deeply as a negligent individual, he was involved"]; Snoke v. Bolen (1991) 235 Cal. App. 3d 1427, 1432 [dentist could not be substituted in as doe defendant when plaintiff knew dentist had performed dental work in area of injury].) "The pivotal question in this regard is did plaintiff know facts? not did plaintiff know or believe that [he] had a cause of action based on those facts? [Citation.]" (Scherer v. Mark (1976) 64 Cal. App. 3d 834, 841, 135 Cal. Rptr. 90, original italics.)
Appellants say they did not "know" respondents were negligent until appellants experts rendered opinions to that effect. Appellants maintain that, as laypersons, they could not be charged with knowledge that they had a cause of action against respondents until it was declared by an expert. This position, we note, is directly contradicted by appellants complaint, which alleges that Woolf and Specht were negligent in part because they failed to recognize and treat the injury as a transected nerve and failed to refer Carter for surgical repair in a timely fashion. This is exactly the same factual basis for the amended complaint against respondents. It thus appears that appellants had knowledge that the specified professional behavior was negligent before they filed the original complaint.
Here, the record shows that appellants knew respondents names, the nature of their involvement with Carters dental problem, and all the facts upon which the causes of action alleged against respondents rest. They knew respondents had seen Carter by referral from the treating dentists concerning the very injury in issue. Carter knew respondents had not made a timely referral for surgery and had taken the same "wait and see" approach to the problem as had Specht and Woolf. Thus, respondent was not properly substituted as a fictitiously named defendant and service of the section 474 amendment was invalid. (See 2 Witkin, Cal. Procedure (4th ed. 1996), Jurisdiction, § 122, p. 663 [the state may proscribe by statute the manner in which process must be given and failure to comply may be considered jurisdictional].)
II.
The trial court erred by dismissing appellants entire action.
A motion to quash service challenges only the lack of jurisdiction over the person and, when ruling on such a motion, the trial court is not permitted to determine the merits of the complaint. (See Kroopf v. Guffey (1986) 183 Cal. App. 3d 1351, 1360, 228 Cal. Rptr. 807 [lack of jurisdiction is the only issue when reviewing motion to quash]; Nelson v. Horvath (1970) 4 Cal. App. 3d 1, 4-5, 84 Cal. Rptr. 101 [in deciding a motion to quash service the court may not make any determination of the merits of the complaint]; Regents of University of New Mexico v. Superior Court (1975) 52 Cal. App. 3d 964, 970, fn. 7, 125 Cal. Rptr. 413 [special appearances are not proper occasions for testing the legal or factual merits of a complaint].) The court did not violate this principle here.
An analogous situation is one where personal jurisdiction is challenged for lack of forum-related contacts and a dismissal is entered upon resolution of this jurisdictional issue in the defendants favor. In such circumstances, whether personal jurisdiction exists depends on an evaluation of the defendants contacts with the forum state to the extent those contacts connect to the substantive causes of action alleged in the complaint. A finding that personal jurisdiction over the defendant is lacking of necessity negates the validity in the forum state of the causes of action alleged by the plaintiff. (See Malone v. Equitas Reinsurance Ltd. (2000) 84 Cal.App.4th 1430, 1441 [in personam jurisdiction depends on the validity of substantive claim against foreign defendant, citing Regents of University of New Mexico v. Superior Court, supra, 52 Cal. App. 3d 964]; see also Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523 [although motion to quash for lack of personal jurisdiction does not implicate merits of complaints alter ego allegations, determination of issue of personal jurisdiction requires evidence of the nature of alleged alter egos contacts with forum state].)
Likewise, in this case, the resolution of respondents jurisdictional challenge required an inquiry into the extent of the facts known to appellants when their original complaint was filed as those facts connected to the substantive causes of action alleged in the amended complaint against respondents. Hence, the determination that respondents were improperly substituted as fictitiously named defendants necessarily negated the validity of appellants causes of action against respondents as fictitious defendants.
However, the fact that appellants had no valid causes of action against respondents as initially fictitious defendants did not terminate the litigation. (See GMS Properties, Inc. v. Superior Court (1963) 219 Cal. App. 2d 407, 411, 33 Cal. Rptr. 163 [the successful argument of the motion to quash does not end the litigation, plaintiff may amend complaint to gain service].) Though appellants are precluded from naming and serving respondents as fictitious defendants and thereby having the benefit of the relation back doctrine (Miller v. Thomas (1981) 121 Cal. App. 3d 440, 445, 175 Cal. Rptr. 327 [relation back principle applies only where plaintiff genuinely ignorant of defendants true name]), appellants are not precluded from further amending the complaint, if they can successfully do so, to join respondents as named defendants in their own right for causes of actions for which the statute of limitations has not run or to identify, name and serve legitimate fictitiously named defendants other than respondents. (See Hennesseys Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal. App. 3d 1351, 1359, 251 Cal. Rptr. 859 [party may name alter ego defendant in amendment as new party, not as doe defendant, where evidence of alter egos identity and role is uncovered during discovery; however action commences as to alter ego on date of amended complaint and plaintiff is not entitled to relation back doctrine].) By dismissing the action in "its entirety," the trial court erroneously resolved the merits of the complaint against all possible defendants, including any remaining potential doe defendants. (Greener v. Workers Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 863 P.2d 784 [challenge to subject matter jurisdiction of court is properly brought by demurrer, motion to strike, judgment on the pleadings, motion for summary judgment, or in the answer; it is not appropriate by motion to quash service of summons]; Berendsen v. McIver (1954) 126 Cal. App. 2d 347, 351, 272 P.2d 76 [bar of the statute of limitations to an action should be raised by demurrer or in an answer].)
We recognize that, by sustaining the trial courts ruling on respondents motion to quash, appellants opportunity to prosecute a viable lawsuit will be considerably limited, given the apparent absence of any other likely defendants and the unavailability of the relation back doctrine with respect to any claims against respondents. Nonetheless, we cannot say on this record, and in the context of the issues presented, that the opportunity is nonexistent. (See Kneeland v. Ethicon Suture Laboratories (1953) 118 Cal. App. 2d 211, 229, 257 P.2d 727 [issues not presented in special appearance to quash service of summons cannot be decided against plaintiff to bar action].)
The issues raised by appellants with respect to the trial courts order denying appellants motion for new trial and for reconsideration are moot.
DISPOSITION
The judgment (order) is reversed. The trial court on remand shall vacate its prior order granting respondents motion to quash and dismissing the case in its entirety and enter an order granting respondents motion to quash only. Costs on appeal are awarded to respondents.
WE CONCUR: Buckley, J., Gomes, J.