Barnes v. Wilson

• Decision Date: 26 June 1974
• Citation: 114 Cal.Rptr. 839,40 Cal.App.3d 199
• Parties: Lucille BARNES et al., Plaintiffs and Appellants, v. Wilbur WILSON et al., Defendants and Respondents. Civ. 13526.
• Court: California Court of Appeals Court of Appeals

Page 839

114 Cal.Rptr. 839

40 Cal.App.3d 199

Lucille BARNES et al., Plaintiffs and Appellants, v. Wilbur WILSON et al., Defendants and Respondents.

Civ. 13526.

Court of Appeal, Fourth District, Division 2, California.

June 26,1974.

Hearing Denied Aug. 21, 1974.

[40 Cal.App.3d 201] Hayton & Peach, Arthwell C. Hayton and Marshall Miles, San Bernardino, for plaintiffs and appellants.

Thompson & Colgate, Riverside, and Herbert F. Blanck, Encino, for defendants and respondents, Theodore and Phyllis Noyd.

OPINION

TAMURA, Associate Justice.

This is a wrongful death action by the heirs of a victim of a stabbing which occurred at the Golden Gloves Tavern in Yucaipa. The original complaint named as defendants the owners of the Golden Gloves and Does I to V. After the one year statute of limitations had run, defendants Theodore and Phyllis Noyd, owners of the Copper Door Tavern, were substituted for Does II and III. The Noyds' demurrer to the fourth amended complaint was sustained without leave to amend on the ground the action was barred as to them by the statute of limitations. Plaintiffs appeal from the ensuing judgment of dismissal.

The procedural background leading to the present appeal is as follows:

The first amended complaint alleged that the owners of the Golden Gloves and Doe I, their employee, negligently failed to warn patrons of the unreasonable risk created by the presence of the assailant and negligently failed to provide protection for their patrons. It contained the following allegations with respect to the Doe defendants: 'That the true names or capacities, whether individual, corporate, associate or otherwise of defendants, DOES I through V are unknown to plaintiff who therefore sues said defendants by such fictitious names. Plaintiff is informed and believes and thereon alleges that each of the defendants designated herein as a Doe is negligently responsible in some manner for the events and happenings herein referred to, and negligently caused injuries and damages proximately thereby to plaintiff as herein alleged; and plaintiff will ask leave of the Court to amend this complaint to show their true names and capacities when same have been ascertained.' ¹

Almost a year after the one year statute had run, plaintiffs filed an amendment pursuant to Code of Civil Procedure section 474 substituting defendants Theodore and Phyllis Noyd for Does II and III. ² The Noyds' demurrer to the first amended complaint was sustained without leave to amend and a judgment of dismissal was entered. Plaintiffs appealed from the judgment and pursuant to stipulation of the parties, the judgment was reversed without prejudice to defendants' right to raise the defense of statute of limitations as an affirmative defense. (4 Civil 12093.)

Following issuance of the remittitur the Noyds answered and raised the affirmative defense of the statute of limitations. Thereafter they demurred to the first amended complaint on the ground it failed to state a cause of action. The demurrer was sustained and plaintiffs filed a second amended complaint in which they added allegations that the Noyds were the owners of the Copper Door; the assailant was at the Copper Door on the day of the stabbing and while there became excessively intoxicated, was loud and boisterous, brandished a knife and constituted a danger to himself and to others; notwithstanding the assailant's condition, the Noyds continued to serve him alcoholic beverages; as a proximate result of the Noyds' negligence in continuing to furnish intoxicating beverages to the assailant, plaintiffs sustained damages as alleged in the complaint.

The Noyds' demurrers to the second and third amended complaints on grounds the complaints failed to state a cause of action and the action was barred by the statute of limitations were sustained with leave to amend. Plaintiffs filed a fourth amended complaint to which the Noyds demurred on the same grounds and that demurrer was sustained without leave to amend. Plaintiffs appeal from the ensuing judgment of dismissal.

The sole issue is whether the amendment seeking to allege a cause of action against the Noyds for negligently furnishing alcoholic beverages to the assailant at the Copper Door related back to the date of the filing of the original complaint, thereby avoiding the bar of the statute of limitations. ³

The purpose of the fictitious name statute (Code Civ.Proc., § 474) is to enable plaintiff to commence suit in time to avoid the bar of the statute of limitations where he is ignorant of the identity of the defendant. The statute should be liberally construed to accomplish that purpose. (Austin v. Massachusetts Bonding & Insurance Co., 56 Cal.2d 596, 602--603, 15 Cal.Rptr. 817, 364 P.2d 681; Motor City Sales v. Superior Court, 31 Cal.App.3d 342, 345, 107 Cal.Rptr. 280.)

Under the earlier cases, where a timely filed complaint failed to state a cause of action against a defendant designated by a fictitious name, an amendment to do so after the statutory period would not relate back to the date of the filing of the original complaint. (Williams v. Goodman, 214 Cal.App.2d 856, 861--862, 29 Cal.Rptr. 877; Stanley v. Kawakami, 127 Cal.App.2d 277, 278, 273 P.2d 709; Sullivan v. Wright, 124 Cal.App.2d 836, 838, 269 P.2d 671; Gates v. Wendling Nathan Co., 27 Cal.App.2d 307, 314--315, 81 P.2d 173; 3 Witkin, Cal.Proc. (2d ed.) § 1073, pp. 2649--2650.) The current view, first enunciated in Austin v. Massachusetts Bonding & Insurance Co., supra, 56 Cal.2d 596, 600, 15 Cal.Rptr. 817, 364 P.2d 681, is that the amendment will relate back to the date of filing of the original complaint if it seeks recovery on the same general set of facts as those alleged in the original complaint. The Austin court reasoned that a defendant sued by a fictitious name and later brought into the case by an amendment substituting his true name is considered a party from its commencement; as to a named party where an amendment is sought after the statute has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general facts; a defendant unaware of a suit against him by a fictitious name is in no worse position if, in addition to substituting his true name, the amendment makes other changes in the allegations based on the same general facts; and from the point of view of the plaintiff, he has at least as great a need for liberality in amendment as a plaintiff who knew the defendant's name throughout. Thus, under Austin, the test is no longer whether a new cause of action is stated but whether recovery is sought on the same general facts. (Grudt v. City of Los Angeles, 2 Cal.3d 575, 583, 86 Cal.Rptr. 465, 468 P.2d 825; Wilson v. Bittick, 63 Cal.2d 30, 37--38, 45 Cal.Rptr. 31, 403 P.2d 159; Breceda v. Gamsby, 267 Cal.App.2d 167, 170, 72 Cal.Rptr. 832; Garrett v. Crown Coach Corp., 259 Cal.App.2d 647, 650--651, 66 Cal.Rptr. 590; 3 Witkin, Cal.Proc., Supra, §§ 1080--1082, pp. 2656--2662.)

Where an amendment states a cause of action based on 'the same general set of facts' as alleged in the original complaint is often a close question. However, recent decisions have liberally construed a plaintiff's right to amend his pleadings without incurring the bar of the statute of limitations so that cases may be decided on their merits. In Grudt v. City of Los Angeles, Supra, 2 Cal.3d 575, 584, 86 Cal.Rptr. 465, 468 P.2d 825, the original complaint named two police officers of the City of Los Angeles as defendants in a wrongful death action. After the expiration of the one year statutory period, plaintiff sought to amend by stating a cause of action against the City alleging that the City was liable for negligently retaining the officers after it knew or should have known that they were prone to violence. The Supreme Court reversed the trial court order striking the amendment, stating both the account against the officers and the count against the City 'recite the same acts by (the officers) as the gravamen of the action, and recovery is sought in both counts to compensate plaintiff for the loss of her husband.' (At p. 584, 86 Cal.Rptr. at p. 469, 468 P.2d at p. 829.)

In Garrett v. Crown Coach Corp., Supra, 259 Cal.App.2d 647, 66 Cal.Rptr. 590, cited with approval in Grudt, plaintiff brought an action to recover damages for injuries sustained when his...