Lopa v. Superior Court

• Decision Date: 24 March 1975
• Citation: 46 Cal.App.3d 382,120 Cal.Rptr. 445
• Parties: Michael Dean LOPA, Jr., Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Michael LOPA et al., Real Parties in Interest and Plaintiffs. Civ. 44672.
• Court: California Court of Appeals Court of Appeals

Page 445

120 Cal.Rptr. 445

46 Cal.App.3d 382

Michael Dean LOPA, Jr., Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Michael LOPA et al., Real Parties in Interest and Plaintiffs.

Civ. 44672.

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

March 24, 1975.

Rehearing Denied April 16, 1975.

Ruston & Nance and Peter M. Callahan, Fullerton, for petitioner.

No appearance of respondent.

Davis & Davis and M. Stephen Davis and Perkal & Fields, Beverly Hills, for real parties in interest and plaintiffs.

COLE, Associate Justice ^*.

Petitioner Michael Dean Lopa, Jr. (hereafter Lopa, Jr.) seeks by these proceedings to have this court review the orders of respondent court which denied his motions to quash service of summons and to dismiss under Code of Civil Procedure, section 581a. We hold that the motion to quash was properly denied but that the motion to dismiss should have been granted.

The accident out of which this litigation arose occurred on or about March 15, 1970, between two automobiles, one of which was driven by Lopa, Jr., and the other by Paul Charles Hohman. The accident resulted in the death of Lopa, Jr.' § brother, Daniel Lee Lopa, and injury to Roy C. Zeigler, both of whom were guests in the car driven by Lopa, Jr., Michael Lopa and Shirley Lopa, the parents of Lopa, Jr. and Daniel Lopa and the real parties in interest herein, brought suit against Hohman and 'Does I through VIII, inclusive,' on December 7, 1970 (No. NC C 7845--B).

On February 16, 1971, an action was commenced by Paul Charles Hohman, through his father as his guardian ad litem, and his father, Walter Hohman, naming Lopa, Jr. and others as defendants, which action was based on the same accident (No. NC C 7998--B). On June 10, 1971, Lopa, Jr.'s motion to file a cross-complaint against Paul Charles Hohman and Walter Hohman in action No. NC C 7998--B) was granted.

On November 9, 1972, on motion of Paul Charles Hohman and Elizabeth Hohman, as defendants in case No. NC C 7845--B, to consolidate that action with case No. NC C 7998--B for 'pretrial and trial,' the court made its order granting that motion. Thereafter further proceedings in the cases were carried on under consolidated hearings. Such proceedings included discovery, trial setting conference, and mandatory settlement conference. On December 10, 1973, pursuant to a settlement reached between Paul Charles Hohman, as plaintiff, and Lopa, Jr., Browne C. Hamilton, the owner of the vehicle driven by Lopa, Jr., as defendants, in case No. NC C 7998--B, that action was dismissed by Hohman as against Lopa, Jr., and Hamilton. However, Lopa, Jr.'s cross-complaint against Walter Hohman remained to be prosecuted.

Purported service of the summons and complaint in the senior Lopas' suit against the Hohmans (No. NC C 7845--B) was made upon Lopa, Jr. as a Doe defendant on April 2, 1974. On May 17, 1974, Lopa, Jr. filed a notice of motion to quash the service of the summons upon him. On June 5, 1974, the senior Lopas filed a motion to amend complaint, the proposed amended complaint naming Lopa, Jr. as the driver of the car in which Daniel Lopa was riding at the time of the accident (for some unexplained reason the amended complaint itself bears a filing date of May 29, 1974). These motions were heard on June, 7, 1974. Lopa, Jr.'s motion to quash was denied. The minutes of the trial court do not reflect any disposition of the senior Lopas' motion to amend the complaint. However, the notice of ruling with respect to the proceedings of June 7, 1974, states that the motion to amend the complaint was granted. And Lopa, Jr. in his petition for writ of prohibition and writ of mandate states, 'The motion for leave to file the proposed amended complaint was granted on June 7, 1974.'

On June 26, 1974, Lopa, Jr. filed a notice of motion to dismiss for failure to serve the summons within three years of the date of issuance thereof (Code Civ.Proc., § 581a) ¹ and for reconsideration of the motion to quash service of summons and complaint. Both these motions were heard on July 12, 1974, and the court made its order denying the motions. The minute order stated that 'Defendant has 30 days to prepare an appeal.' Inasmuch as neither of these orders was appealable, it would appear that the purpose of the 30-day provision was to permit a review by appropriate writ. ² Thereafter, on August 2, 1974, the petition for writ of prohibition and writ of mandate was filed by Lopa, Jr. On August 20, 1974, this court issued its alternative writ and on October 16, 1974, issued a supplement and amendment to the alternative writ.

Two issues are presented by this proceeding. They are:

1. Was Lopa, Jr. amenable to service as a Doe defendant in case No. NC C 7845--B?

2. Is the action required to be dismissed pursuant to the provisions of section 581a by reason of the senior Lopas' failure to make service upon Lopa, Jr. within three years from the time of the filing of the complaint?

The Motion To Quash Was Properly Denied

The contentions of the parties with respect to the propriety of service upon Lopa, Jr. as one of the eight Does named in action No. NC C 7845--B revolve around the question whether plaintiffs were 'ignorant of the name' of Lopa, Jr. within the meaning of section 474. ³ Lopa, Jr. claims that his identity was at all times known to his parents, as were all the facts bearing upon his alleged liability to them, and thus that the provisions of section 474 were unavailable to them. The senior Lopas have pointed out that under the rule stated in Barnes v. Wilson (1974) 40 Cal.App.3d 199, 114 Cal.Rptr. 839, such knowledge on the part of a plaintiff does not preclude the service upon a known participant against whom recovery is sought on the same general facts and with respect to the same occurrence where the plaintiff is unaware that he has a cause of action until a later appellate decision makes such cause of action apparent. Since, they contend, they were unaware that they had a cause of action against Lopa, Jr. until the California Supreme Court held in Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, ⁴ that the guest statute (Veh.Code, § 17158) was unconstitutional, the amendment was proper. This court held in Johnson v. Goodyear Tire & Rubber Co. (1963) 216 Cal.App.2d 133, 30 Cal.Rptr. 650, that a pleading could be amended under section 474 'where plaintiff knew the true name of the defendant and knew all of the facts giving rise to a cause of action against him, but was unaware at the time of filing that he had such cause of action . . .' (216 Cal.App.2d at p. 137, 30 Cal.Rptr. at p. 653; see, also Austin v. Massachusetts Bonding & Investment Co. (1961) 56 Cal.2d 596, 15 Cal.Rptr. 817, 364 P.2d 681.)

In the instant case the recovery sought in the amended complaint is clearly based on the same general facts as those set forth in the original complaint. It was there alleged that Daniel Lopa was a passenger in a car but the driver of the car was not named. In the amended complaint, Lopa, Jr. is named as the driver of the car and it is alleged that his negligence and the negligence of Paul Charles Hohman proximately caused the death of Daniel Lopa.

The trial court correctly determined that plaintiffs were entitled to amend their complaint to state a cause of action against Lopa, Jr., designated in the original complaint as a fictitiously named defendant, pursuant to section 474, and that, as a result, the amended complaint could be deemed filed as of the date of the filing of the original complaint. The motion to quash was correctly denied.

The Motion To Dismiss Should Have Been Granted

Section 581a provides in pertinent part as follows:

'(a) No action heretofore or hereafter commenced by complaint shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named as a party or not, unless the summons on the complaint is served and return made within three years after the commencement of said action, except where the parties have filed a stipulation in writing that the time may be extended or the party against whom the action is prosecuted has made a general appearance in the action.'

The senior Lopas filed their complaint on December 7, 1970, and service was made on Lopa, Jr. on April 2, 1974, approximately three years and four months after the complaint was filed. It is established that as to a defendant named in the original complaint by a fictitious name the action commences for purposes of section 581a on the date of the filing of the complaint. (Watson v. Superior Court (1972) 24 Cal.App.3d 53, 61, 100 Cal.Rptr. 684; Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 38, 96 Cal.Rptr. 317; Rios v. Torvald Klaveness (1969) 2 Cal.App.3d 1077, 1082, 83 Cal.Rptr. 150.)

While earlier cases held that section 581a was mandatory and jurisdictional (see, E.g., Gonsalves v. Bank of America (1940) 16 Cal.2d 169, 172, 105 P.2d 118) and did not recognize any exceptions not expressly stated in the statute (see, E.g., White v. Superior Court (1899) 126 Cal. 245, 247, 58 P. 450; Cahn v. Jones (1950) 101 Cal.App.2d 345, 348, 225 P.2d 570), later cases have rendered a more liberal interpretation of it. Thus, in Wyoming Pacific Oil Co. v. Preston (1958) 50 Cal.2d 736 at pages 740--741, 329 P.2d 489, at page 492, the Supreme Court held that 'notwithstanding the mandatory language of section 581a, the trial court is vested with discretion in applying the exceptions comparable to the discretion with which it is vested in applying the exceptions to section 583.' The court went on to say (50 Cal.2d at p. 741, 329 P.2d at p. 492):

'As with the exercise of the court's other inherent and statutory powers to dismiss...