184 Cal.App.3d 369, E002333, Joslin v. H.A.S. Ins. Brokerage

Docket Nº:E002333
Citation:184 Cal.App.3d 369, 228 Cal.Rptr. 878
Opinion Judge:[10] Rickles
Party Name:Joslin v. H.A.S. Ins. Brokerage
Attorney:[7] Robert M. Holstein, Jr., and Brian C. Unitt for Plaintiffs and Appellants. [8] Joseph W. Fairfield and Bernard S. Shapiro for Defendant and Respondent.
Case Date:August 11, 1986
Court:California Court of Appeals
 
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Page 369

184 Cal.App.3d 369

228 Cal.Rptr. 878

Imogean JOSLIN, et al., Plaintiffs and Appellants,

v.

H.A.S. INSURANCE BROKERAGE, Defendant and Respondent.

E002333.

California Court of Appeal, Fourth District, Second Division

Aug. 11, 1986.

Page 370

[Copyrighted Material Omitted]

Page 371

Robert M. Holstein, Jr. and Brian C. Unitt, for plaintiffs and appellants.

Joseph W. Fairfield and Bernard S. Shapiro, for defendant and respondent.

OPINION

RICKLES, Associate Justice.

Plaintiffs Imogean Joslin and Roxie E. Dumas (mother and daughter) have appealed from a judgment of dismissal in favor of defendant H.A.S. Insurance Brokerage (hereafter H.A.S.) following the sustaining of H.A.S.'s demurrer without leave to amend. Plaintiffs had substituted H.A.S. in place of a fictitiously named defendant but the court ruled the action against H.A.S. was barred by the statute of limitations because plaintiffs "knew or should have known" the identity of H.A.S. when the complaint was filed.

The issues on appeal are whether the court properly took judicial notice of deposition testimony in ruling on the demurrer, whether constructive as well as actual knowledge of the identity of a fictitiously named defendant will preclude later substitution, and whether the court erred in sustaining the demurrer.

Page 372

FACTS

The original complaint, which was filed in March 1982, alleged that plaintiffs purchased a certain Jeep vehicle in April 1981 from Desert Datsun Incorporated of Cathedral City. As part of the purchase plaintiffs agreed to pay $480 for a 12-month service contract which was imprinted with the name of Manufacturers Insurance Services Corporation (hereafter MISCO).

In August 1981, while the service contract was in effect, the Jeep suffered a mechanical breakdown in New Mexico. Plaintiffs made a timely claim for payment of repair bills and related expenses to MISCO but MISCO wrongfully refused to pay.

The complaint alleged causes of action for breach of contract, fraud, negligent misrepresentation, negligent and intentional infliction of emotional distress, and violation of section 790.03 of the Insurance Code. Named as defendants were Desert Datsun Incorporated and MISCO, various individuals allegedly associated with these companies, and one hundred fictitiously named defendants.

In March 1985, an amendment to the complaint was filed substituting H.A.S. in place of the first fictitiously named defendant. H.A.S. demurred, asserting the action was barred by the statute of limitations because plaintiffs knew the identity of H.A.S. when the original complaint was filed and therefore could not claim the relation-back benefit of the fictitious name statute (Code Civ.Proc., § 474). In support of the demurrer H.A.S. relied on a leaflet which had been attached as an exhibit to the complaint and on portions of a deposition of plaintiff Joslin taken in February 1985. H.A.S.'s attorney submitted a declaration attesting to the accuracy of the selected pages of deposition transcript attached to his declaration. H.A.S. did not make a request for judicial notice.

The leaflet described the advantages of the automobile service agreement and listed the vehicle parts covered. It stated that the agreement was "presented by" H.A.S. and "administered by" MISCO. Addresses and telephone numbers for both H.A.S. and MISCO were given. In the complaint plaintiffs had admitted receiving this leaflet when they purchased the Jeep.

In her deposition testimony, plaintiff Joslin had admitted contacting an employee of H.A.S. after the Jeep broke down in an attempt to obtain payment for repairs. However, as will be discussed more fully later, it is not entirely clear from her testimony whether Joslin knew...

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