Opinion
A152339
10-10-2018
KIMBERLY PEMBERTON, Plaintiff and Appellant, v. COMPASS ORTHOPEDIC TECHNOLOGIES & PRODUCTS, INC., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. C1501327)
Kimberly Pemberton filed an amendment to her complaint for strict liability to substitute a named defendant for "DOE 1." That party, Compass Orthopedic Technologies & Products, Inc. (Compass) moved to strike Pemberton's amendment and to quash service of the complaint on the ground that Pemberton was not genuinely ignorant of Compass, and thus could not avail herself of Code of Civil Procedure Section 474, which allows a plaintiff who is ignorant of a defendant to designate the defendant by a fictitious name. The trial court agreed with Compass and granted the motions. We now reverse.
Section 474 provides, "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 . . . ." All statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Pemberton originally filed a Complaint for Products Liability, naming defendant CoolSystems, Inc. (CoolSystems) and fictitiously named defendants "DOES 1-50," as to whom she "does not know the true names and capacities." Pemberton alleged that on or about September 6, 2013, following an outpatient surgical procedure to remove a bunion on her left foot, her physician prescribed a post-operative therapeutic treatment known as the "Game Ready Control Unit," a type of cold therapy unit (CTU). Pemberton alleged the CTU was "manufactured and sold by Defendant." Pemberton alleged that at a post-operative visit with her physician, within a few days of using the CTU, she complained of some discoloration of her foot and her physician advised her to discontinue use of the CTU. Although she followed the physician's instructions, her foot worsened. She developed gangrene and, on October 7, 2013, underwent a partial amputation of her foot, all allegedly as a result of her use of the prescribed CTU.
The complaint alleged a single cause of action for "Strict Products Liability," with three "Count[s]:" "Strict Liability of the CTU Manufacturer and Does 1-50 who manufactured, assembled and/or sold the CTU"; "Negligence of the CTU Manufacturer and Does 1-50 who owed a duty to Plaintiffs"; and "Breach of Warranty by the CTU Manufacturer and Does 1-50" who breached implied and express warranties.
On November 12, 2015, CoolSystems filed a First Amended Cross-Complaint naming Compass.
From what we can tell from the Register of Actions, Compass moved to quash service of summons of the First Amended Cross-Complaint, but eventually took the motion off calendar and answered on April 5, 2016.
On December 4, 2015, Pemberton filed an Amendment to Complaint naming DOE 1 as "Compass Orthopedics," stating, in language derived from section 474, that she had been "ignorant of the true name and basis for liability of a defendant" designated as DOE 1, and had "discovered the true name of said defendant," and was hereby amending the complaint to insert the true name in the place of DOE 1 throughout the complaint.
Compass identifies itself in its briefs and in the record excerpts as Compass Orthopedic Technologies & Products, Inc. "erroneously sued herein as 'Compass Orthopedics,' " a fact of no moment to this appeal.
Pemberton served the amended complaint on Compass on March 30, 2017.
In May 2017 Compass filed a Motion to Strike Plaintiff's Amendment to Complaint and a Motion to Quash Service of Summons. Pemberton filed a single opposition to both motions, since the motions were identical in content. The bulk of Compass's argument was that Pemberton failed to meet the requirements of section 474 by filing an amendment without leave of court and that the claims were time barred Under the heading "Conclusion," Compass argued that the amendment was not made in good faith because Pemberton and her husband, Blake Merry, stated at their depositions that they knew the person who delivered the CTU was employed by Compass, they heard him instruct on the proper use of the unit, and he left them with various documents with the Compass name. Excerpts from Pemberton's and Merry's depositions were attached to the supporting declaration of Compass's Bradley S. Thomas, but Compass's brief itself did not refer to depositions by specific page, let alone line, number.
The trial court later described these motions as making "identical arguments" and considered them together and in one order. CoolSystems, who opposed Compass's motions in the trial court, noted in its opposition that save for the different titles, the motions were identical, as were the supporting declarations and exhibits.
Pemberton opposed the motions, arguing that no leave of court was necessary to substitute the true name of the Doe defendant, that the statute of limitations was beside the point because the amendment naming Compass relates back, and that she relied on the Doe amendment process in good faith because she was unaware of defendant Compass's liability. Pemberton claimed that the deposition excerpts were of testimony taken long after the lawsuit was filed and did not establish that she knew she had a cause of action against Compass at the time she filed her complaint in July 2015. She claimed she was genuinely ignorant that Compass was responsible for her injuries, citing a passage from her deposition where she testified that she had discussed with her children that she believed the cause of her injury was the CTU system, but by the time of the deposition, had a "shared belief that it was not just the CTU system, "but also Compass."
Compass's reply brief attached more pages from Merry's deposition transcript and many more pages from Pemberton's. Again without citation to deposition page number, it summed up the testimony as follows: "plaintiff knew the cold therapy machine that allegedly damaged her foot was supplied by Compass Orthopedics, that the gentleman who delivered the unit to her and explained the general operating instructions was employed by Compass Orthopedics, and that when she returned to her treating physician approximately four days following her initial use of the equipment, she heard her doctor engage in a telephone conversation with a Compass Orthopedics' employee. The doctor told the employee to 'never instruct her patients to use the cold therapy machine on the coldest setting.' " Compass argued that the Doe amendment is "simply not valid because plaintiff did know [Compass's] identity and involvement with her injury when the complaint was filed and did not add [Compass] as a named defendant until after the applicable statute of limitations expired."
The court issued a lengthy tentative ruling denying the motion. First, the trial judge concluded that failure to file a formal noticed motion to amend the complaint was not a requirement of section 474. Second, the trial court closely examined the excerpts from Pemberton's deposition, and concluded that prior to her filing the lawsuit she knew all of the following: "that Compass had instructed her on the use of the machine," that "Compass had delivered the machine to her," that "her doctor was 'angry' with Compass for instructing her to use the machine on its coldest setting," and that she "originally was of the belief that the product had caused her injuries, but later came to the belief that Compass shared the blame for causing her injuries."
The trial court then tentatively concluded that on the date the complaint was filed, Pemberton knew "she was injured by the cold therapy machine," that "Compass delivered that machine to her," that "Compass instructed her in its use," that "her doctor was 'angry' about the manner in which Compass had instructed her in its use." The court wrote: "That might have given rise to a 'suspicion' that Compass had engaged in wrongdoing, but McClatchey [sic] says that is not enough. The Court notes that there is no evidence before the Court that suggests Ms. Pemberton was aware of facts that demonstrated that Compass's instructions to her—or her use of the machine on its coldest setting—is what caused her injury. A reasonable person may very well have believed that the machine was defective irrespective of the manner in which it was used." (Emphasis added.)
McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, discussed below.
Compass requested oral argument. The appellate record includes the parties' agreed statement in lieu of reporter's transcript of that hearing (agreed statement), which reflects that at the outset of the hearing the trial judge told the parties that Compass' motion was a "really close call," and that she was "going with her tentative ruling" denying the motions. No additional evidence was taken at the hearing. The court then heard oral argument from the parties, which is briefly summarized in the agreed statement. Compass led off with the argument that Pemberton's knowledge of Compass's culpability was "of no import" because "under California's strict products liability law, a cause of action exists against a distributor within the chain of distribution," and "it was Compass' very existence in the chain of distribution, and her knowledge of them that gave rise to a potential cause of action." Pemberton's response was that she had met with a Compass representative only briefly before surgery, was not given any paperwork with Compass's name on it to take home, and she did not know of Compass's role as a distributor at the time the complaint was filed, only learning in the course of pursuing the case "of Compass and their potential responsibility for the injuries she suffered."
Based on our review of the record, this argument does not appear to have been raised in Compass's moving papers or squarely raised in its reply brief in support of their motions below. In one sentence, Compass states, "Clearly, since plaintiff's complaint alleges that the cold therapy machine delivered to her was dangerously defective, plaintiff actually knew facts at that time giving rise to a cause of action against Compass as the supplier of that product to her."
At the end of the oral argument, the court took the matter under submission. On June 30, 2017, the trial court issued a brief order setting aside the very detailed tentative ruling, and granting the motions to quash service and strike the amendment. The court's stated rationale was as follows: "The deposition testimony of plaintiff established that at the time the complaint was filed, she was not ignorant of Defendant Compass, that its representative had delivered the 'injury causing machine to her' and instructed her on its use. Thereafter, after she developed the problem with her foot and went to her doctor, her doctor was angry, had a conversation with a 'Compass' person and told that person to never instruct her patients to use the machine on the coldest setting, which plaintiff at that time believed was the cause of her injury. [¶] The foregoing represents plaintiff's knowledge at the time the complaint was filed on 7/23/15. She was not only aware of the identify [sic] of Compass and the fact it supplied the injury causing equipment, but also was aware it had caused her injury. Her 'Doe' amendment naming Compass in place of Doe 1 was not filed until 12/4/15."
We informed the parties on September 28, 2018, that on the court's own motion we augmented the record to include the declaration of Compass's attorney, Bradley S. Thomas, in Support of Motion to Strike Plaintiff's Amendment to Complaint and Exhibits A and B attached thereto, filed on May 10, 2017. Although Compass states in its respondent's brief that Pemberton has not provided a complete evidentiary record on appeal, we are not aware that the evidentiary record is incomplete in a material way, in light of the fact that the two motions filed by Compass at issue in this appeal are (other than title) identical, and are supported by identical declarations and evidence. Compass could have designated additional documents in the clerk's transcript, but it did not. (Cal. Rules of Court, rule 8.122(a)(2).) Further, Pemberton made an unopposed motion to augment the record before Compass's respondent's brief was filed, which we granted.
DISCUSSION
Applicable Legal Principles
In McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371-372 (McClatchy), our colleagues in Division 5 recently explained the law governing the use of section 474 and the substitution of the true name of a fictitious defendant. "Section 474 allows a plaintiff who is ignorant of a defendant's identity to designate the defendant in a complaint by a fictitious name (typically as a 'Doe'), and to amend the pleading to state the defendant's true name when the plaintiff subsequently discovers it. When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint. (Woo v. Superior Court (1999) 75 Cal.App.4th 169.) Section 474 provides a method for adding defendants after the statute of limitations has expired, but this procedure is available only when the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant.
" 'Ignorance of the facts giving rise to a cause of action is the "ignorance" required by section 474, and the pivotal question is, " ' did plaintiff know facts?' not 'did plaintiff know or believe that [he] had a cause of action based on those facts?' " ' (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 594 (General Motors); [citations].) 'Although it is true that a plaintiff's ignorance of the defendants name must be genuine (in good faith) and not feigned [citations] and that a plaintiff need not be aware of each and every detail concerning a person's involvement before the plaintiff loses his ignorance [citations], it is equally true that the plaintiff does not relinquish [his] rights under section 474 simply because [he] has a suspicion of wrongdoing arising from one or more facts [he] does know.' " (McClatchy, supra, 247 Cal.App.4th at pp. 371-372, fn. omitted).)
Section 474 is "liberally construed" to accomplish its purpose of enabling a plaintiff to commence suit in time to avoid the bar of the statute of limitations when she is ignorant of the identity of a defendant. (General Motors, supra, 48 Cal.App.4th at p. 593.) "In keeping with this liberal interpretation of section 474, it is now well established that even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant's actual identity (that is, his name), the plaintiff is 'ignorant' within the meaning of the statute if he lacks knowledge of that person's connection with the case or with his injuries. [Citations.]" (Id. at pp. 593-954; see Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 [reversing order denying Doe amendment naming an anesthesiologist in a medical malpractice case; "[i]n order for Dr. Tucker to successfully argue that the Doe amendment was untimely, he had to prove that even if Fuller knew his identity, Fuller also knew facts giving rise to a cause of action against Dr. Tucker"].)
The relevant time period is the date the lawsuit was filed, and the question to ask is what plaintiff actually knew on that day. "[W]here, as here, a lawsuit is initiated within the applicable period of limitations against someone (that is, almost anyone at all) and the plaintiff has complied with section 474 by alleging the existence of unknown additional defendants, the relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed." (General Motors, supra, 48 Cal.App.4th at p. 588, italics omitted.) There is no duty under section 474 for a plaintiff to "go in search of facts she does not actually have at the time she files her original pleading." (Id. at p. 596.)
Where, as here, the trial court's decision to grant the motion to quash was based on its interpretation of the statute and on Pemberton's conduct, we review its findings of fact for substantial evidence, and review its conclusions of law, to the extent they are based on findings of fact, de novo. (Balon v. Drost (1993) 20 Cal.App.4th 483, 487 [trial court erred in finding plaintiff-appellant did not comply with section 474 and in granting motion to quash; defendant reinstated].) Substantial evidence "is 'evidence of "ponderable legal significance, . . . reasonable in nature, credible, and of solid value." ' (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873, italics omitted.) In determining its existence, we look at the entire record on appeal rather than simply considering the evidence cited by a party. (Ibid.) 'The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record. [Citation.] While substantial evidence may consist of inferences, such inferences must be "a product of logic and reason" and "must rest on the evidence" [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].' (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)" (Estate of Young (2008) 160 Cal.App.4th 62, 76.)
Analysis
Pemberton contends that the trial court's finding that she was not "ignorant" within the meaning of section 474 of Compass's connection to her injuries when she filed her lawsuit is not supported by substantial evidence. We agree.
Even assuming that Pemberton knew the name "Compass" when she filed her lawsuit, there is no substantial evidence that she knew that Compass was also a cause of her injury. The pivotal evidence in the record about Compass being a cause of her injury concerns the conversation Pemberton overheard when she was at her doctor's office for a postoperative visit, excerpts which Compass attached in its reply brief. We restate part of it here:
"Q: Did Dr. Kroboth examine your foot and ankle?
"A: Yes.
"Q: Did she take—remove the bandage?
"A: Yes.
"Q: What do you recall her saying or telling you when she removed the bandage, if anything?
"A: I recall her being concerned about my foot. And, I recall her—someone in her office staff, she told them to get Compass on the telephone. And I recall her conversation with that Compass person—I have no knowledge of who that might have been—to never instruct her patients to use the cold therapy machine on the coldest setting.
"Q: Do you recall what tone of voice she used?
"A: She was angry.
"Q: Your recollection is that she was in some fashion having this conversation in a raised voice?
"A: Yes.
"Q: Obviously, you're only able to hear one side of the conversation?
"A: Yes
"Q: You don't know with whom it was?
"A: I do not.
"Q: And other than Dr. Kroboth—you hearing Dr. Kroboth say, 'Don't ever tell one of my patients to use it on the coldest setting,' do you recall anything else she said?
"A: That was a short conversation. No. That's the only thing that stuck in my—in my mind. No, not in that conversation."
"Q: What did Dr. Kroboth say to you that led you to believe that she was concerned about something she saw?
"A: Dr. Kroboth said that my foot looked to have been damaged by cold therapy. And obviously it was swollen; it was discolored, especially my big toe. (Italics added.)
In our view, for purposes of section 474 this shows that Pemberton might have had a suspicion of Compass's wrongdoing based on what she overheard. But what she overheard was limited: it was one side of a phone conversation purportedly between her doctor and an unknown person from Compass taking place in a hallway outside the treatment room. Pemberton did not know what the other person said, who the other person was, or whether or how the other person was connected to her use of the CTU. When Pemberton's doctor returned to the treatment room, the doctor said nothing further about the conversation. The doctor's angry tone, overheard by Pemberton, is not enough to establish Pemberton understood the causal connection. As the trial judge properly concluded in her written tentative ruling denying Compass's motion, "there is no evidence before the Court that suggests Ms. Pemberton was aware of facts that demonstrated that Compass's instructions to her—or her use of the machine on its coldest setting—is what caused her injury. A reasonable person may very well have believed that the machine was defective irrespective of the manner in which it was used."
That factual finding (though tentative) accurately described the state of the evidence before the trial court, and it was an equally accurate assessment after oral argument. In our view, the trial court got it right the first time in its tentative ruling. The inference that it drew from this evidence to reach the opposite conclusion two days later—that Pemberton was aware that Compass had caused her injury—is speculation or conjecture. It is not a basis for a finding that Pemberton relinquished her rights to use section 474 when she filed her complaint.
On appeal, Compass argues that Pemberton knew or should have known that she had a cause of action for strict products liability against it by virtue of the law governing strict product liability, since "[e]very supplier in the stream of commerce or chain of distribution, be it manufacturer or retailer, is potential liable" to an injured consumer, which makes every person or entity who places a defective product into the "stream of commerce" strictly liable to an injured consumer, citing cases including Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57. Compass argues that since Pemberton knew that Compass had supplied her with the product and her complaint both alleges that she was injured as a result of a defective product (the CTU), and names the manufacturer of the product (CoolSystems), "she knew Compass was in the stream of commerce and that she had a cause of action against it for strict products liability."
This argument is not persuasive. Compass cites no law to support this restrictive application of section 474 to strict product liability cases. Whether Pemberton was "ignorant" under section 474 is a factual inquiry, not the application of the principles of California product liability law. Further, as a panel of this division wrote in Balon v. Drost, supra, 20 Cal.App.4th at page 488, "California law clearly states that '. . . constructive or legal knowledge will not deprive [appellant] of the [section 474] remedy.' [Citation.]" Moreover, the "fact that the plaintiff had the means to obtain knowledge is irrelevant." (General Motors, supra, 48 Cal.App.4th at p. 594.) There is no "discovery rule" for section 474, and the test is whether plaintiff was " 'actually ignorant of a certain fact, not when [plaintiff] might by the use of reasonable diligence have discovered it.' " (Fuller v. Tucker, supra, 84 Cal.App.4th at p. 1170.)
Finally, allowing the case to proceed against Compass is consistent with the purpose of section 474, which is to permit a plaintiff who does not know the facts connecting a person or entity to her injuries at the time she files her lawsuit to avoid the bar of the statute of limitations. (General Motors, supra, 48 Cal.App.4th at pp. 593-594.) As the General Motors court described this policy, "the Supreme Court and the Courts of Appeal of the 20th Century are uniform in their view that section 474 is to be liberally construed." (Id. at p. 593.) Compass has pointed us to no authority suggesting that courts in the 21st Century have any different view.
We also note that there appears to be no prejudice to Compass from being named in Pemberton's amendment to complaint. Compass had been participating fully in the litigation since April 2016 when it answered CoolSystems First Amended Cross-Complaint. This was well before it was served with Pemberton's amendment on March 30, 2017. --------
In light of our disposition, we do not address Pemberton's argument that Compass's motions were procedurally improper.
DISPOSITION
The order granting Compass's motion to strike amendment to complaint and motion to quash is reversed. Pemberton shall be entitled to her costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.