Fireman's Fund Ins. Co. v. Sparks Const.

• Citation: 114 Cal.App.4th 1135,8 Cal.Rptr.3d 446
• Decision Date: 08 January 2004
• Docket Number: No. E033453.,E033453.
• Court: California Court of Appeals
• Parties: FIREMAN'S FUND INSURANCE COMPANY, Plaintiff and Appellant, v. SPARKS CONSTRUCTION, INC. et al., Defendants and Respondents.

8 Cal.Rptr.3d 446

114 Cal.App.4th 1135

FIREMAN'S FUND INSURANCE COMPANY, Plaintiff and Appellant, v. SPARKS CONSTRUCTION, INC. et al., Defendants and Respondents.

No. E033453.

Court of Appeal, Fourth District, Division 2.

January 8, 2004.

Certified For Partial Publication.^*

Graham & Associates and Bruce N. Graham, Woodland Hills, for Plaintiff and Appellant.

Higgins Harris Sherman & Rohr, John J. Higgins, Palm Desert, and Deborah A. Walker, for Defendants and Respondents.

OPINION

RICHLI, Acting P.J.

The original complaint in this action contained Doe allegations. The first amended complaint did not. After filing the first amended complaint, the plaintiff served two new defendants with the original summons and complaint, along with amendments purporting to name them as Does. These defendants filed answers, and all parties proceeded to litigate apace.

Almost a year later, the plaintiff sought leave to file a second amended complaint, in which these new defendants were explicitly named. This belatedly alerted the new defendants to the existence of the first amended complaint. The trial court denied leave to amend; indeed, it granted the new defendants judgment on the pleadings. It reasoned that the first amended complaint had effectively dismissed all Doe defendants; hence, the Doe amendments were ineffective, the second amended complaint did not relate back, and the statute of limitations had run.

In essence, the trial court ruled that, even though the new defendants had participated in the action for over a year, filing not only answers but also cross-complaints and even a motion for summary judgment, they had never really been parties at all. Moreover, it was too late to make them parties. The plaintiff's procedural gaffes precluded it from any recovery against them.

By and large, we agree with the trial court's reasoning-as far as it went. We will hold, however, that the new defendants waived any objection to their joinder by filing answers and thereby making a general appearance. Their waiver was effective even though they had no reason to suspect, at the time, that they had not been properly joined. Thus, the action was commenced against them, for purposes of the statute of limitations, not later than when they filed their answers. We cannot say, as a matter of law, that the applicable statutes of limitations had run by that date. Hence, we will reverse.

I FACTUAL AND PROCEDURAL BACKGROUND

A. The Original Complaint.

Plaintiff Fireman's Fund Insurance Company (Fireman's) filed this action on May 26, 2000. Its attorney was Philip A. Fant. The original complaint named as defendants Kohler Co. (Kohler) and Does 1 through 10. It asserted two causes of action, for negligence and for strict products liability.

According to the original complaint, Albert and Ardean Cook owned a home in La Quinta. As a result of a defective ballcock, their toilet leaked, causing severe property damage. The leak was discovered on or about June 15, 1999. Fireman's, as the Cooks' insurer, paid them $428,804.48. In return, Fireman's became subrogated to the Cooks' claims arising out of the leak.

B. The First Amended Complaint.

On March 30, 2001, Fireman's filed its first amended complaint, which named as defendants Kohler, Fluidmaster, Inc. (Fluidmaster), and Preferred Air Conditioning (Preferred). The first amended complaint had no Doe allegations.

On October 2, 2001, Fireman's substituted Bruce N. Graham as its attorney in place of Fant.

On November 30, 2001, Fireman's filed amendments to the first amended complaint, purporting to name Sparks Construction, Inc. (Sparks) as Doe 1 and T.D. Desert Development, LP (T.D.) as Doe 2.

On December 19, 2001, and February 26, 2002, respectively, Fireman's served the following documents on T.D. and Sparks: (1) a summons issued on the original complaint, listing as defendants Kohler and Does 1 through 10; (2) the original complaint; and (3) the amendments purporting to name Sparks and T.D. as Does.

T.D. and Sparks filed answers on January 7, 2002, and March 27, 2002, respectively. These were captioned as answers to the "complaint." Each answer consisted of a general denial and numerous affirmative defenses, including failure to state a claim and the statute of limitations, but not including lack of personal jurisdiction. Sparks and T.D. did not, at that time, move to quash. They also filed cross-complaints for indemnity against the other defendants.

On September 24, 2002, Sparks and T.D. filed a motion for summary judgment, on the ground that they "never touched the subject toilet." The original complaint was attached as an exhibit to the motion; the motion discussed it as if it were the operative pleading. The trial court denied the motion.

On November 8, 2002, Fireman's entered into a settlement with Preferred. As part of the settlement, Preferred assigned to Fireman's any rights to indemnity that it had against its codefendants.

C. The Second Amended Complaint.

On January 3, 2003, Fireman's filed a motion for leave to file a second amended complaint. The original complaint, first amended complaint, and proposed second amended complaint were all attached as exhibits. The proposed second amended complaint named as defendants Kohler, Fluidmaster, Sparks, T.D., and "DOES 3 through 100." However, it contained no Doe allegations. It alleged that Fireman's had paid the Cooks a total of $430,457.48 (instead of $428,804.48). It also alleged that the leak was discovered on or about September 15, 1999 (instead of June 15, 1999). It added three new causes of action — for equitable indemnity, contribution, and declaratory relief — based on the rights which Preferred had assigned to Fireman's.

Sparks and T.D. responded by filing a combined motion to quash and motion for judgment on the pleadings.

In opposition to the motion, Fireman's filed declarations by its attorneys, Fant and Graham. Fant stated that, when he drafted the first amended complaint, he intended to include Doe allegations; his failure to do so "was an oversight and not done deliberately." Graham stated that, when he drafted the Doe amendments, he did not realize that the first amended complaint lacked any Doe allegations.

On February 7, 2003, the trial court granted the motion for judgment on the pleadings without leave to amend, denied Fireman's motion for leave to amend, and dismissed Fireman's action as against Sparks and T.D. It ruled: "... Sparks ... and T.D .... were improperly served.... [P]laintiff's original complaint ... was super[s]eded by a first amended complaint.... The first amended complaint contained no charging allegations against any Doe defendant ... thus dismissing those parties.... When Sparks ... and T.D .... were served with Doe amendments, there were no Doe defendants ... in the operative pleading. Plaintiff's counsel could not file a Doe amendment to a complaint which has no Doe defendants.... Furthermore, the Court finds that the statute of limitations has run thus barring plaintiff's ability to bring in these parties based on the date of loss set forth in plaintiff's complaint as June, 1999."

II^**

III DISCUSSION

A. The Effect of the First Amended Complaint.

The trial court ruled that, by filing the first amended complaint, Fireman's effectively dismissed all Doe defendants.

It has long been the rule that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them. (Lamoreux v. San Diego & Arizona Eastern Ry. Co. (1957) 48 Cal.2d 617, 627-628, 311 P.2d 1; Browner v. Davis (1860) 15 Cal. 9, 11-12, 1860 WL 1029; Kuperman v. Great Republic Life Ins. Co. (1987) 195 Cal.App.3d 943, 947, 241 Cal.Rptr. 187.)

Fireman's argues that the only way it could dismiss a defendant was by filing a request for dismissal. This flies in the face of the cases just cited. Fireman's relies on Code of Civil Procedure section 581, subdivision (b)(1), which provides that an action may be dismissed "[w]ith or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial...." This provision, however, is neither exclusive nor mandatory. (Richards v. Bradley (1900) 129 Cal. 670, 672, 62 P. 316; Holland v. Morgan & Peacock Properties Co. (1959) 168 Cal.App.2d 212, 213, 335 P.2d 773; see also Code Civ. Proc., § 581, subd. (m).) Even assuming it is exclusive, the first amended complaint itself would constitute the necessary request for dismissal.

Accordingly, we agree with the trial court that Fireman's first amended complaint effectively dismissed all Doe defendants.

Fireman's also argues that any resulting dismissal necessarily was without prejudice. We agree (Kuperman v. Great Republic Life Ins., supra, 195 Cal.App.3d at p. 947, 241 Cal.Rptr. 187), but the point is irrelevant. The trial court implicitly recognized that the dismissal was without prejudice. It ruled, however, that Fireman's could not file a new or amended complaint against Sparks and T.D. because the statute of limitations had run.

B. The Doe Amendments.

Next, the trial court ruled that the amendments purportedly naming Sparks and T.D. as Does were ineffective because the first amended complaint contained no Doe allegations.

Code of Civil Procedure section 474 allows a plaintiff to name fictitious defendants, or "Does." The complaint must state a cause of action against each Doe defendant. (Pacific Coast Refrigeration, Inc. v. Badger (1975) 52 Cal.App.3d 233, 249-250, 124 Cal.Rptr. 786; Milam v. Dickman Const. Co. (1964) 229 Cal.App.2d 208, 213-214, 40 Cal.Rptr. 130.) It must allege that the plaintiff is ignorant of the Doe defendant's name. (Code Civ. Proc., § 474; Stephens v. Berry (1967) 249 Cal.App.2d 474, 477, 57 Cal.Rptr. 505; but cf. Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 353-355, 220 Cal.Rptr. 602.) Moreover, the plaintiff must actually...