Opinion
B228021
10-04-2011
STEVE PARZYCH, Plaintiff and Appellant, v. NANCY MAHONEY, Defendant and Respondent.
Joseph West for Plaintiff and Appellant. Fidone & Motooka, Marjorie E. Motooka for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC101461)
APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph S. Biderman, Judge. Reversed and remanded.
Joseph West for Plaintiff and Appellant.
Fidone & Motooka, Marjorie E. Motooka for Defendant and Respondent.
After a year and a half of litigation, after the trial date had already been rescheduled, and with the new trial date looming, the trial court denied plaintiff's ex parte request to amend the complaint by identifying the true name of a fictitiously named defendant. Although there is no question the plaintiff and his attorney should have discovered the identity of the defendant much earlier, we must reverse. It was not established that the plaintiff knew the defendant's identity before filing suit, and it was not established that any prejudice would result from delay if the amendment were allowed. The denial was therefore in error.
FACTS
Plaintiff Steve Parzych was involved in a two-vehicle accident in Marina del Rey on January 26, 2007. Exactly two years later, the last day of the statute of limitations under Code of Civil Procedure section 335.1, Parzych filed a complaint for motor vehicle negligence and general negligence, alleging that defendant Nancy Mahoney and "Does 1 to 20" owned and operated the car that crashed into his truck, causing him personal injury and property damage.
Nancy Mahoney answered the complaint in February 2009, asserting as an affirmative defense that her liability was limited by Vehicle Code section 17151. She filed a case management statement in April 2009, which stated "Margaret Mahoney was proceeding north on Via Marina when her vehicle collided with Plaintiff's." (Italics added.) Next, she propounded a request for production of documents, to which Parzych responded in June 2009. One of the documents that Parzych produced was the police report for the accident, which stated that Margaret Mahoney was the driver and Nancy was the owner.
Section 17151, subdivision (a) provides in pertinent part: "The liability of an owner . . . is limited to the amount of fifteen thousand dollars ($15,000) for the death of or injury to one person in any one accident . . . and is limited to the amount of five thousand dollars ($5,000) for damage to property of others in any one accident."
For clarity of reference, we refer to Margaret and Nancy Mahoney by their first names in this opinion, with no disrespect intended.
Despite these seemingly obvious clues, Parzych proceeded to the final status conference without naming Margaret as a defendant. According to Parzych's attorney, he finally learned that Margaret was the driver and Nancy was the owner of the vehicle at the final status conference on May 25, 2010, just before the scheduled trial date of June 7, 2010. Parzych still did not seek to name Margaret as a defendant, however. Instead, he filed a notice of settlement, purportedly based on a settlement agreement with Nancy that never came to fruition.
Finally, on August 3, 2010, after the trial had been re-set for September 7, 2010, Parzych filed an ex parte application seeking leave to amend his complaint to designate Margaret in place of a Doe defendant. Nancy opposed the application, arguing that Parzych could not add a new defendant after the statute of limitations had run. At the hearing on the application, the trial court repeatedly asked Parzych's attorney why he did not try to bring Margaret into the case earlier. After taking the matter under submission, the court denied the ex parte application.
Parzych then actually settled with Nancy. The court set an order to show cause regarding dismissal following settlement, and Parzych's attorney appeared at the hearing. Following the hearing, the court issued a minute order stating, in pertinent part: "Counsel for the plaintiff represents to the Court that he is prepared to dismiss defendant Nancy Mahoney, but does not want to dismiss the doe defendants as to preserve the issue of adding a second defendant on appeal. [¶] The Court orders this case dismissed as to all defendants and all causes of action."
This appeal followed.
DISCUSSION
Parzych argues that the trial court erred by denying his request to amend the complaint to name Margaret in the place of a Doe defendant. According to Parzych, Margaret would have the opportunity to attack the complaint after amendment; the court's ruling, which essentially dismissed Margaret from the case before she filed a demurrer or other motion, was improper. We are constrained to agree.
Code of Civil Procedure section 474 provides, in pertinent part, "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; . . ." Parzych used a form personal injury complaint, which contained Doe allegations that met the initial pleading requirements.
A Doe amendment may be accomplished ex parte in most courts, without need of notice or a hearing. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 6:614, p. 6-157.) So long as the action against the newly identified defendant rests on the same theory and same general facts as those pled in the original complaint, the defendant is regarded as a party from the commencement of the suit. (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946 (Munoz).)
The circumstances under which a Doe amendment may be rejected are limited. One potential basis for rejection is if the plaintiff was not truly ignorant of the defendant's identity and relation to the injuries when initiating the action. (Miller v. Thomas (1981) 121 Cal.App.3d 440, 444-445.) The ignorance must be "'real and not feigned.'" (Munoz, supra, 91 Cal.App.3d at p. 947.) A Doe amendment may also be rejected if the plaintiff unreasonably delayed seeking amendment after discovering the defendant's identity. (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066-1067.)
We find that none of these conditions was sufficiently established on Parzych's ex parte application to deny amendment. On appeal, Nancy argues that Parzych could not "add" Margaret as a defendant because the statute of limitations had already run. Parzych was not trying to add a defendant, however. Instead he was trying to identify a Doe defendant. Unlike the case cited by Nancy, Stephens v. Berry (1967) 249 Cal.App.2d 474, 477, the complaint here did not contain ineffective fictitious name allegations. When fictitious name allegations are properly pled, Code of Civil Procedure section 474 effectively extends the statute of limitations for the unknown defendant. (Munoz, supra, 91 Cal.App.3d at p. 946.) The three-year time limit for service (Code Civ. Proc., § 583.210) still applies; i.e., the summons and complaint must be served upon the newly identified defendant within three years after the date the action was commenced. (Munoz, at p. 946.) That three-year limit would presumably not have been an issue here, though. Parzych still would have had a year and a half to serve Margaret if amendment had been allowed.
Nancy contends that she was not a proper party to this appeal since she settled with Parzych and was voluntarily dismissed. To the extent Nancy claims the issues on appeal have little if any legal effect on her, she is correct. But that raises the question of why she filed a respondent's brief. In this appeal, Parzych is not trying to undo his settlement with Nancy, which presumably has been finalized. Nancy was not obligated to file a respondent's brief. This matter could have been decided on the opening brief, the record, and oral argument by the appellant. (See Conservatorship of Pamela J. (2005) 133 Cal.App.4th 807, 815-816.)
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Nor was it established that Parzych knew Margaret's identity prior to filing suit. (See Stephens v. Berry, supra, 249 Cal.App.2d at p. 477 [affidavits, declarations, and exhibits showed that plaintiff was aware of defendant's identity when complaint was filed].) Parzych obviously should have known. The police report clearly stated that Margaret was the driver, and it seems obvious that prior to filing a lawsuit for an auto accident the plaintiff and his lawyer should at least peruse the police report. But a plaintiff does not have a duty to exercise even reasonable diligence to discover a defendant's name prior to filing suit. (Balon v. Drost (1993) 20 Cal.App.4th 483, 488-489.) The concept of constructive or legal knowledge simply does not apply. (Id. at p. 488.) Thus, absent supporting evidence, Parzych and his attorney could not be charged with having read the police report or having learned of Margaret's identity in some other fashion prior to filing the action.
It also does not matter for statute of limitations purposes that Parzych's attorney should have discovered Margaret's identity much earlier in the lawsuit. The applicability of Code of Civil Procedure section 474 only depends on the knowledge of the plaintiff at the time the complaint is filed. (Munoz, supra, 91 Cal.App.3d at p. 947.) Thus, it is immaterial that plaintiff and his attorney apparently did not read the defendant's case management statement, did not read the police report plaintiff produced in discovery, and never conducted any discovery, not even a simple set of form interrogatories.
It is true that a Doe amendment may be rejected for unreasonable delay. (Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 9.) Such a rejection is only proper, however, if prejudice is shown. (A.N. v. County of Los Angeles, supra, 171 Cal.App.4th at pp. 1066-1067.) Margaret was never brought into the case, so she never had the opportunity to establish any prejudice. Nancy opposed Parzych's ex parte application, but did not contend that she would be prejudiced if the amendment were allowed. Thus, the trial court could not properly deny amendment on the basis of delay. Indeed, its order denying the ex parte application contained no mention of prejudice or delay.
This does not mean that Margaret will be unable to contest the amendment. If, following amendment, she is served with the summons and complaint, she will have the opportunity to attack the amended complaint. She could attempt to establish that Parzych's claimed ignorance was feigned (see Stephens v. Berry, supra, 249 Cal.App.2d at p. 477; Scherer v. Mark (1976) 64 Cal.App.3d 834, 840), or try to establish that she was prejudiced by Parzych's delay in seeking amendment. (A.N. v. County of Los Angeles, supra, 171 Cal.App.4th at pp. 1066-1067.) Whether she will be able to make such a showing is not for us to decide here.
DISPOSITION
The dismissal of the Doe defendants is reversed. The trial court is directed to allow the filing of plaintiff's amended complaint naming Margaret Mahoney in place of the previous fictitiously named Doe 1, and the case is remanded for further proceedings. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
DOI TODD, J.
CHAVEZ, J.