Bd. of Trustees v. Superior Court, H030451.

• Decision Date: 18 April 2007
• Docket Number: No. H030451.,H030451.
• Citation: 57 Cal.Rptr.3d 755,149 Cal.App.4th 1154
• Parties: The BOARD OF TRUSTEES OF the LELAND STANFORD JUNIOR UNIVERSITY, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent; Brian J. Umana, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

57 Cal.Rptr.3d 755

149 Cal.App.4th 1154

The BOARD OF TRUSTEES OF the LELAND STANFORD JUNIOR UNIVERSITY, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent Brian J. Umana, Real Party in Interest.

No. H030451.

Court of Appeal, Sixth District.

April 18, 2007.

Robert von Raesfeld, John K. Haggerty, Law Offices of Robert von Raesfeld, Attorney for Defendant and Petitioner.

No Appearance, Attorneys for Respondent.

John M. Ingle, Law Offices of John M. Ingle, Nicole Noelle Hancock, Shea & Shea, San Jose, Attorneys for Plaintiff and Real Party in Interest.

BAMATTRE-MANOUKIAN, Acting P.J.

I. INTRODUCTION

Real party in interest Brian J. Umana fell from his dormitory loft bed on February 15, 2003, when he was a sophomore living on campus at petitioner Stanford University (Stanford). Exactly two years after the date of his fall, he filed a personal injury complaint in propria persona alleging that he had sustained a serious head injury in the fall due to Stanford's negligence. When Brian's deposition was taken by Stanford's attorney, Brian admitted that he had not actually signed the complaint and that his father, John Umana, had signed the complaint in Brian's name at Brian's request.¹

Stanford subsequently filed a motion for summary judgment, contending that Brian's action was barred by the two-year statute of limitations (Code Civ. Proc., § 335.1)² because a valid complaint signed by either the plaintiff or the plaintiffs California-licensed attorney, as required by section 446, had not been filed during the limitations period. Brian immediately filed a motion for leave to file a first amended complaint that was signed by his attorney.

The trial court granted the motion for leave to file a first amended complaint and denied Stanford's motion for summary judgment. The court found that the evidence showed that Brian had exercised control over the content and filing of the original complaint, and therefore the signature defect could be cured by the filing of a properly signed first amended complaint that related back to the filing of the original complaint.

For reasons that we will explain, we conclude that the trial court did not err and therefore we will deny Stanford's petition for writ of mandate, which seeks extraordinary relief from both the order granting the motion for leave to file an amended complaint and the order denying the motion for summary judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Original Complaint

On February 15, 2005, Brian filed a personal injury complaint in propria persona against Stanford and Vaden Health Center. Brian was a sophomore at Stanford on February 15, 2003, when he allegedly sustained brain and head injuries as the result of a fall from his dormitory bed. According to Brian, at the time of the fall he was sleeping in a "lofted bed" that had been raised seven to nine feet off the floor with "lofting materials" provided by Stanford. The unsafe and defective lofting structure was built by his roommates with the university-provided materials and was not properly inspected by Stanford. Brian further claimed that Vaden Health Center, the student health center on campus, did not provide him with adequate medical care after the accident.

The complaint was signed "Brian J. Umana, Plaintiff pro se." However, when his deposition was taken by Stanford's attorney on March 9, 2006, Brian testified that the signature on the complaint was "mine signed in the hand of my father by my written request."

B. The Motion for Summary Judgment

On April 11, 2006, Stanford filed a motion for summary judgment on the ground that Brian's action was barred by the section 335.1 two-year statute of limitations applicable to personal injury actions. Stanford argued that the complaint filed on February 15, 2003, was void because it was undisputed that neither Brian nor his attorney of record had signed the complaint, as required by section 446, subdivision (a) and section 128.7, subdivision (a). In pertinent part, subdivision (a) of section 446 provides, "Every pleading shall be subscribed by the party or his or her attorney." Section 128.7, subdivision (a) provides in pertinent part, "Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party."

Stanford also relied on the decision in Dixey v. Pollock (1857) 8 Cal. 570, 1857 WL 878 (Dixey) for the proposition that a complaint not signed by the party or a California-licensed attorney is void. In Dixey, the California Supreme Court determined that a complaint signed by the plaintiffs "attorney in fact," rather than his "attorney at law," "was not subscribed, either by the plaintiff or his attorney, and the suit must be considered as having been instituted by an entire stranger [to the plaintiff], and wholly without authority, and, therefore, void." (Dixey, supra, 8 Cal. at pp. 573-574.)

Based on these authorities, Stanford contended that Brian's action was time-barred because a valid complaint had not been filed prior to the expiration of the section 335.1 limitations period on February 15, 2005.

C. The Motion for Leave to File a First Amended Complaint

On April 12, 2006, the day after Stanford filed its summary judgment motion, Brian brought an ex parte motion to file a first amended complaint. The proposed first amended complaint attached to the motion included several substantive changes and was signed by Brian's attorney of record. The trial court ordered Brian to file a noticed motion for leave to file a first amended complaint and set a hearing date of May 16, 2006.

Thereafter, on April 14, 2006, Brian filed a motion for leave to file a first amended complaint. He argued that he should be allowed to amend the complaint to cure the signature defect pursuant to section 128.7, subdivision (a), which provides in pertinent part that "[a]n unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party." Brian also argued that granting leave to file the first amended complaint would not prejudice Stanford and would be in the furtherance of justice.³

D. Opposition to the Motion for Leave to File a First Amended Complaint

In its opposition to the motion for leave to file a first amended complaint, Stanford asked the trial court to consider Stanford's summary judgment motion first, because the motion for leave to file a first amended complaint would be rendered moot if the summary judgment motion was granted. Stanford also accused Brian of attempting to circumvent summary judgment procedure by seeking leave to file a first amended complaint. Regarding the merits, Stanford argued, among other things, that there was no evidence to show that Brian was "at any time unable to draft pleadings as a pro se litigant in a civil action."

E. The Order Granting Leave to File a First Amended Complaint

On May 31, 2006, the trial court issued a written order granting the motion for leave to file a first amended complaint. During the hearing on the motion, held on May 16, 2006, the trial court stated that its decision to grant the motion was largely based on the policy of "the liberality of allowing people to amend their complaints even during the course of the trial."

F. Opposition to the Motion for Summary Judgment

Brian opposed Stanford's summary judgment motion on the ground that the motion was moot in light of the filing of the properly signed first amended complaint on May 26, 2006, which superseded the original complaint. Brian further contended that the signature defect in the original complaint could be cured by amendment because the California Supreme Court indicated in Dixey, supra, 8 Cal. at page 573, that a signature defect in a pleading is a "`mere irregularity'" that does not invalidate the complaint. Additionally, Brian asserted his lawsuit had been instituted by a proper party, and not a stranger to the suit, because he had been involved in both the creation and filing of the original complaint as stated in the declarations filed by himself and his father. Finally, Brian maintained that under the relation back doctrine his action was deemed to be filed on the day the original complaint was filed and was not barred by the section 335.1 two-year limitations period.

G. The Order Denying the Summary Judgment Motion

The trial court denied the summary judgment motion in a written order filed on July 6, 2006. Relying on the decisions in Dixey, supra, 8 Cal. 570 and Canadian Bank of Commerce v. Leale (1910) 14 Cal. App. 307, 111 P. 759, the trial court found that "[Brian] presented competent evidence showing that he exercised control over the content of the complaint and the filing of the complaint. In these circumstances, the omission of [Brian]'s signature from the complaint is but an irregularity that has now been cured by [Brian's] filing of a first amended complaint through his attorney. The filing of the amended complaint relates back to the filing of the original complaint and is within the applicable limitations period."

H. Writ Proceedings

On July 26, 2006, Stanford filed a petition for writ of mandate in which it sought extraordinary relief from both the order granting Brian's motion for leave to file a first amended complaint and the order denying Stanford's summary judgment motion. We requested further briefing and issued an order to show cause why the relief sought in the petition should not be granted. For the reasons explained below, we conclude that the petition for writ of mandate should be denied.

III. DISCUSSION

A. The Parties' Contentions

In its writ petition, Stanford emphasizes its argument that section 446 and the Dixey decision must be construed to establish a rule that a complaint not signed by the hand of the plaintiff or his or...