Dieckmann v. Superior Court

• Decision Date: 06 December 1985
• Citation: 220 Cal.Rptr. 602,175 Cal.App.3d 345
• Court: California Court of Appeals Court of Appeals
• Parties: William Henry DIECKMANN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, INTERNATIONAL HARVESTER CORPORATION, Real Party in Interest. B011450.

Page 602

220 Cal.Rptr. 602

175 Cal.App.3d 345

William Henry DIECKMANN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent INTERNATIONAL HARVESTER CORPORATION, Real Party in Interest.

B011450.

Court of Appeal, Second District, Division 4, California.

Dec. 6, 1985.

Review Denied Feb. 19, 1986.

John W. Parker, Santa Ana, for petitioner.

No appearance for respondent.

Harrington, Foxx, Dubrow, Canter & Keene, David H. Canter, Dale B. Goldfarb, Brian L. Goller, and Mark W. Flory, Los Angeles, for real party in interest.

WOODS, Presiding Justice.

By petition for writ of mandate, a plaintiff in a civil action seeks to vacate the granting of a defendant's motion for judgment on the pleadings. The motion was granted due to the absence, in the original complaint, of an allegation that the true names of the fictitiously named defendants were unknown to plaintiff.

The question of first impression raised is whether the failure to comply with the requirement of section 474 of the Code of Civil Procedure, ¹ that a plaintiff "must" state in the complaint that the names of fictitiously named defendants are unknown to him, may be cured by amendment after a defendant's true name is substituted in place of one of the fictitiously named defendants. A secondary question presented is whether a defendant waives such a technical pleading defect by failing to raise promptly an objection to the patent omission and by waiting until the period for joining parties pursuant to section 581a has passed.

Analysis of applicable rules of statutory construction and considerations of public policy require the conclusion that sections 473 and 474 permit amendment of the complaint to add the allegation of ignorance required by section 474. The court abused its discretion in granting judgment on the pleadings without allowing plaintiff an opportunity to amend, upon a proper showing, pursuant to section 473.

FACTS

The critical facts are simple and not in dispute. In January 1980, plaintiff filed a verified, single-count complaint for personal injury against Bobby G. Beatty and Shelton Poultry, Inc., as the driver and owner, respectively, of a "delivery truck." The complaint also listed 15 fictitiously named defendants. The first paragraph of the complaint inartfully alleged "The true names and capacities of the DOE defendants, whether individual, corporate or otherwise, except for SHELTON POULTRY, INC. are sued as fictitious persons." Each defendant caused injury and damage to plaintiff as alleged. The third paragraph of the complaint alleged that plaintiff's December 4, 1979, injury resulted because defendants "... did so negligently wantonly and recklessly, [sic] maintain, manufacture, equip, repair, entrust, operate, and control their said vehicle as to cause it to drop a driveshaft which struck, hit, bounced and rolled on the pavement which in turn collided, smashed against and into the vehicle which plaintiff was operating...."

As of April 1980, the named defendants had filed answers to the complaint.

On or about January 29, 1982, plaintiff filed a motion for leave to amend the complaint to substitute real party in interest (hereafter Harvester) for fictitiously named defendant and to add a "second cause of action [against Harvester] for strict liability and tort." The motion was supported by the declaration of plaintiff's counsel stating that at the January 20, 1982, mandatory settlement conference defendant Shelton Poultry for the first time indicated that its defense would be based upon the claim that "the driveshaft of the truck in question shattered." This claim, counsel averred, was never mentioned in depositions or answers to written interrogatories, and plaintiff had no prior notice of this theory of liability against the manufacturer.

The court granted plaintiff's motion, and the unverified first amended complaint was filed and served upon defendant Harvester. It substituted Harvester as a defendant in place of fictitiously named defendant Doe VI. A second count alleging strict products liability against Harvester and the remaining fictitiously named defendants was added. It alleged that the driveshaft of the subject delivery truck injured plaintiff because it was negligently "installed, assembled, designed or manufactured" by Harvester.

Harvester filed its answer to the first amended complaint in May 1982, acknowledging that it had been sued as Doe VI. The answer included a general denial and an affirmative defense that "The plaintiff's cause of action is barred by the provisions of Section 340, Subparagraph 3 of the ... Code of Civil Procedure." Harvester filed a cross-complaint for indemnity against the other defendants. It did not demur to the first amended complaint or object to jurisdiction or challenge the absence of an allegation of plaintiff's initial ignorance of its identity. Harvester thereafter actively litigated on the merits.

In September 1983, Harvester amended its cross-complaint to substitute the true name of a fictitiously named cross-defendant.

On the first day of trial, February 1, 1985, (trailing since December 31, 1984) Harvester submitted a written motion for judgment on the pleadings. The motion was based solely on the premise that a new cause of action for strict liability had been added by the first amended complaint, and that the new cause did not relate back to the original complaint so as to avoid the otherwise applicable one-year statute of limitations for personal injury.

During in limine argument on the motion, respondent court interjected sua sponte that the plaintiff's failure to allege in the original complaint that he was ignorant of the true names and capacities of the fictitiously named defendants could require the granting of the motion.

Respondent granted Harvester's motion, without leave to amend, on the basis of the technical pleading deficiency. Respondent commented that the law is uncertain on this question, but that it felt some penalty must be imposed for the technical defect.

Plaintiff filed the petition for mandate with this court on March 1, 1985, and we issued a temporary stay and the alternative writ.

For the reasons set forth herein, we conclude that petitioner should have been allowed to amend his complaint under section 473, to add the allegation of plaintiff's initial ignorance of the true name ² of defendant Harvester.

DISCUSSION

I. The Statutes

It should be pointed out at the outset that our analysis proceeds in conformity with the strong policy considerations that statutes are to be construed strictly to avoid forfeitures upon technical defects in pleading that do not prejudice opposing parties (Hernandez v. Temple (1983) 142 Cal.App.3d 286, 290-291, 190 Cal.Rptr. 853; Enfantino v. Superior Court (1984) 162 Cal.App.3d 1110, 1113, 208 Cal.Rptr. 829; Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, 235, 211 Cal.Rptr. 416, 695 P.2d 713) and that liberal interpretation and amendment of pleadings is strongly favored in this state to allow resolution of actions on the merits in furtherance of substantial justice between the parties. ( §§ 452, 475; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600-602, 15 Cal.Rptr. 817, 364 P.2d 681; Desny v. Wilder (1956) 46 Cal.2d 715, 751, 299 P.2d 257; Blakey v. Superior Court (1984) 153 Cal.App.3d 101, 107, 200 Cal.Rptr. 52; Anderson v. Brouwer (1979) 99 Cal.App.3d 176, 182, 160 Cal.Rptr. 65; Munoz v. Purdy, supra, 91 Cal.App.3d 942, 946, 154 Cal.Rptr. 472; Landis v. Superior Court (1965) 232 Cal.App.2d 548, 554, 42 Cal.Rptr. 893.)

A

With these precepts in mind, we turn to the statute requiring construction.

Section 474 provides, in pertinent part:

"When a 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; ...."

The statutory use of the term "must" presents two possible meanings. First, it could mean that unless the original complaint alleges in the first instance the plaintiff's ignorance of defendants' true names, plaintiff is forever barred from adding such allegation, irrespective of his actual initial ignorance, and is forever barred from benefiting from the effect of section 474 to toll statutes of limitations. Second, section 474 might be construed analogously to section 425.10 (and its predecessor, section 426) as setting forth the requisite pleading allegations necessary to state a triable cause of action and not precluding amendment to cure omissions under section 473 in furtherance of justice.

The paramount rule of statutory construction is that courts should ascertain and effectuate the intent of the Legislature. (Tripp v. Swoap (1976) 17 Cal.3d 671, 679, 131 Cal.Rptr. 789, 552 P.2d 749; Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672; People v. Carroll (1970) 1 Cal.3d 581, 584, 83 Cal.Rptr. 176, 463 P.2d 400.) The language of a statute should not be literally or strictly construed if such construction will conflict with or frustrate the ascertained legislative purpose and if the language will reasonably permit a construction that effectuates that purpose. (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 502 P.2d 1049; Select Base Materials, Inc. v. Board of Equal., supra, 51 Cal.2d 640, 645, 335 P.2d 672.) Statutes requiring forfeitures for technical defects are to be strictly construed to avoid forfeiture. (Hernandez v. Temple, supra, 142 Cal.App.3d 286, 290-291, 190 Cal.Rptr. 853; Enfantino v. Superior Court, supra, 162 Cal.App.3d 1110, 1113, 208 Cal.Rptr. 829; Elston v. City of Turlock, supra, 38 Cal.3d 227, 233, 235, 211 Cal.Rptr. 416, 695 P.2d 713.) Terms such as "shall" and "must" are generally presumed to have intended mandatory meaning but may be construed...