Johnson v. Goodyear Tire & Rubber Co.

• Decision Date: 14 May 1963
• Citation: 30 Cal.Rptr. 650,216 Cal.App.2d 133
• Court: California Court of Appeals Court of Appeals
• Parties: Tilden W. JOHNSON, Plaintiff and Appellant, v. GOODYEAR TIRE & RUBBER COMPANY and Ford Motor Company, Defendants and Respondents. Civ. 27049.

Page 650

30 Cal.Rptr. 650

216 Cal.App.2d 133

Tilden W. JOHNSON, Plaintiff and Appellant, v. GOODYEAR TIRE & RUBBER COMPANY and Ford Motor Company, Defendants and Respondents.

Civ. 27049.

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

May 14, 1963.

Rehearings Denied May 29 and June 3, 1963.

Hearing Denied July 10, 1963.

Tilden W. Johnson, plaintiff and appellant, in pro. per.

Moss, Lyon & Dunn, Charles B. Smith, and Henry F. Walker, Los Angeles, for defendant and respondent Ford Motor Co. Crider, Tilson & Ruppe, and Robert E. McGurl, Los Angeles, for defendant and respondent, Goodyear Tire & Rubber Co.

KINGSLEY, Justice.

In 1955, plaintiff purchased a new Ford automobile from Culver Motors, a dealer in Ford automobiles. In 1956, while driving in Colorado, plaintiff was involved in an auto accident whereby his car was badly wrecked and in which he received personal injuries. In 1957, plaintiff instituted suit against the Ford Motor Company (hereinafter referred to as Ford), and Goodyear Tire & Rubber Company (hereinafter referred to as Goodyear) in a federal court. This action was predicated on the theory of negligence in the testing and manufacture of a tubeless tire and of a wheel rim to hold such a tire. While this action was still pending in the federal court, plaintiff, in 1959, instituted suit in the Superior Court of the County of Los Angeles against Culver Motors, and Does one to ten. This suit is based on the same happening or event as plaintiff's suit in the federal court against Ford and Goodyear. However, in the state suit, plaintiff substantially changed the theory of his case by alleging a cause of action for breach of warranty. Sometime in 1962, plaintiff for the first time discovered that he may have a cause of action against Ford and Goodyear also based upon breach of warranty. ¹ Consequently, plaintiff had summons served upon Ford and Goodyear as Does I and II. Immediately after being served with summons, Goodyear moved to have such service quashed. On May 10, 1962, Goodyear's motion was granted upon the ground that, since plaintiff knew the ture and correct name of Goodyear at the time of filing this action, Goodyear could not be designated by a fictitious name. On May 28, 1962, plaintiff filed a motion to have this order vacated. On July 20, 1962, Ford, too, was granted its motion to have service of summons quashed, upon the same ground it was granted to Goodyear. On the same day, plaintiff's motion of May 28 was denied. On August 6, 1962, plaintiff's motion of July 30 was denied. Finally, on August 15, 1962, plaintiff filed notice of appeal from all the orders of the superior court.

I

Goodyear's contention that plaintiff has not perfected his appeal as to it within the 60 day period after its motion to quash service of summons was granted on May 10, as required by Rule 2 of the California Rules of Court, is erroneous. Goodyear has failed to note Rule 3(b) of the California Rules of Court, which provides: 'When a valid notice of intention to move to vacate a judgment or to vacate a judgment and enter another and different judgment is served and filed by any party on any ground within 60 days after entry of judgment, * * * (1) if the motion is denied or not decided by the superior court within 120 days after entry of the judgment, the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after entry of the order denying the motion to vacate or 150 days after entry of the judgment, whichever shall be less; * * *.'

Plaintiff has clearly perfected his appeal as to Goodyear within the time limits set by rule 3(b). His motion to vacate the order quashing service of summons as to Goodyear was filed on May 28--within the 60 day period required by rule 3(b). This motion to vacate was denied on July 30, 1963, well within the 120 day period allowed and plaintiff filed his appeal on August 15. Therefore, plaintiff was well within the period for filing an appeal whether measured by the 30 day period after his motion to vacate the May 10 order was denied on July 30, or by the 150 day period from the order of May 10.

II

Goodyear contends that an appeal from an order denying a motion to vacate a previous order is nugatory, and that an appeal may be taken only from the original order. (Litvinuk v. Litvinuk (1945) 27 Cal.2d 38, 162 P.2d 8; Simmons v. Santa Barbara Ice, etc., Co. (1958) 162 Cal.App.2d 23, 327 P.2d 141.) While a correct statement of the general law, this doctrine has no application to the facts presented here. The order of July 20, 1963, denying plaintiff's motion to vacate the order quashing service of summons on Goodyear, is important only as setting the time when the 30 day extension period for filing an appeal from the original order of May 10 is to commence. Plaintiff is appealing from all the orders and it specifically appears in the record that he is appealing from the order of May 10, which is the original order granting Goodyear's motion to have service upon it quashed.

III

Where the plaintiff is ignorant of the true names of certain defendants, he may designate them by a fictitious name in the complaint and later request leave to amend to insert their true names when ascertained. Statutory authority for this procedure is found in Code of Civil Procedure, section 474.

Ford and Goodyear contend that, when a plaintiff has knowledge of the defendants' identity and their involvement in the facts, he cannot omit to name such defendants and thereafter claim the right to designate them as fictitiously named defendants under Code of Civil Procedure, section 474. Reliance on this position is placed upon the following cases: Rosencrantz v. Rogers (1871) 40 Cal. 489; Herschfelt v. Knowles-Raymond, etc., Co. (1955) 130 Cal.App.2d 347, 279 P.2d 104; Mercantile Trust Co., etc. v. Stockton, etc., Co. (1919) 44 Cal.App. 558, 186 P. 1049. In addition, Ford and Goodyear claim that plaintiff's ignorance of the name of defendant 'must be real and not feigned' and that 'the fictitious defendant must have been a necessary or proper party in the mind of the plaintiff at the time his complaint was filed.' (Herschfelt v. Knowles-Raymond, supra.)

On the other hand, where the name of a defendant is known to plaintiff, but is omitted from the complaint because plaintiff did not know of facts giving him a cause of action against such defendant, the defendant may be served and made a party under one of the fictitious names designated in the complaint. (Larson v. Barnett (1950) 101 Cal.App.2d 282, 225 P.2d 297.)

In support of this position are Chadbourn, Grossman and Van Alstyne in their authoritative work, California Pleading, Civil Actions, wherein at section 505 they state: 'The better view, and the one most consistent with the purpose of the fictitious name statute, it is submitted, would permit the plaintiff to proceed under the statute where the failure to name the defendant in the complaint was due to ignorance of either his true name, or of the facts linking such defendant with the cause of action sued on. In either event the plaintiff would appear to be 'ignorant of the name of a defendant' within the spirit and letter of section 474, although for different reasons.'

However, the case now before us differs materially from the factual situation upon which the decision in Larson v. Barnett (1951) supra, 101 Cal.App.2d 282, 225 P.2d 297 was based. In Larson the plaintiff knew the name of the defendant, but was ignorant of the facts...