Marasco v. Wadsworth

• Decision Date: 26 April 1978
• Citation: 578 P.2d 90,21 Cal.3d 82,145 Cal.Rptr. 843
• Court: California Supreme Court
• Parties: , 578 P.2d 90 Ruth MARASCO, Plaintiff and Appellant, v. Rose Ann WADSWORTH, Defendant and Respondent. L.A. 30735.

Page 843

145 Cal.Rptr. 843

21 Cal.3d 82, 578 P.2d 90

Ruth MARASCO, Plaintiff and Appellant, v. Rose Ann WADSWORTH, Defendant and Respondent.

L.A. 30735.

Supreme Court of California,In Bank.

April 26, 1978.

Olney, Levy, Kaplan & Tenner, Jack Tenner, James R. Tucker and Arthur D. Warren, Los Angeles, for plaintiff and appellant.

Spray, Gould & Bowers, Daniel O. Howard and Michael R. Brown, Los Angeles, for defendant and respondent.

MANUEL, Justice.

Plaintiff appeals from a judgment entered after defendant's demurrer to an amended complaint was sustained without leave to amend on the ground that the statute of limitations barred the action. We reverse.

On December 4, 1972, plaintiff Marasco filed suit against Frank Penegar and Does I through XX for wrongful death caused by an automobile accident. The complaint alleged that on December 14, 1971, Penegar was the driver of a car whose registered owners were Does I through X, and that Russell, plaintiff's decedent, was a passenger in an automobile driven by substituted defendant Rose Ann Wadsworth. The complaint further alleged that ". . . defendants and each of them so negligently and carelessly drove, operated, maintained, controlled and entrusted their vehicle as to collide with the rear of the vehicle in which plaintiff was riding(,) . . . forcing it to collide with the vehicle ahead of it . . . (and) . . . as a direct and proximate result of the hereinabove described conduct, plaintiff's decedent Maude E. Russell received injuries resulting in her death. . . ."

More than one year after the accident, on August 28, 1973, following our decision holding unconstitutional Vehicle Code section 17158, the guest statute (Brown v. Merlo (1973) 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212), plaintiff amended her complaint and served Wadsworth as a codefendant in place of Doe XI. A demurrer was sustained to this second amended complaint, and after plaintiff's further amendments, ¹ Wadsworth demurred generally, asserting that any cause of action against her was barred by the statute of limitations (Code Civ.Proc., § 340, subd. 3). This appeal is taken from the judgment subsequently entered upon the sustaining of the demurrer without leave to amend.

The question before us is whether the amendment substituting Wadsworth as a named defendant relates back to the filing date of the original complaint, thereby defeating the bar of the statute of limitations. Defendant argues that the amendment naming her as defendant cannot relate back to the original complaint where the statute of limitations otherwise has run, where the original complaint failed to state a cause of action against her as a fictitiously named defendant, and where the only ground for bringing her in as a new defendant is a change in decisional law. Our examination of the record reveals that the amended complaint does relate back to avoid the bar of the statute of limitations and that defendant Wadsworth was properly substituted.

In Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 136 Cal.Rptr. 269, 559 P.2d 624 we held that an amendment substituting a named individual previously sued by a fictitious name relates back to the filing of the original complaint where the recovery is for the same accident and injury, regardless of whether it sets out a different legal theory or states a different cause of action. In that case, the statute of limitations did not bar an amended complaint asserting a cause of action against a machine fabricator for defective manufacture and design where in the original complaint, plaintiff, an injured millworker, had pled an injury arising out a place of employment that was "unsafe, dangerous, and defective." (18 Cal.3d 932, 934, 136 Cal.Rptr. 269, 559 P.2d 624.) The language of Smeltzley that ". . . where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts," is dispositive. (Smeltzley, supra, at p. 936, 136 Cal.Rptr. at p. 271, 559 P.2d at p. 626, quoting Austin v. Massachusetts Bonding and Insurance Co. (1961) 56 Cal.2d 596, 600, 15 Cal.Rptr. 817, 364 P.2d 681; italics in original.)

Here plaintiff named Wadsworth, driver of the vehicle in which plaintiff's decedent was killed, as a defendant five months after our decision in Brown v. Merlo (1973) 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 gave her a right of action against Wadsworth. The amended complaint substituting her in place of Doe XI involves the identical accident the three-car collision, and the identical injuries Maude E. Russell's death, as were presented in the initial complaint. Accordingly, the amended complaint naming Wadsworth as a defendant is not barred by the statute of limitations.

Defendant's contention that the initial allegations did not state a cause of action against her so that she can be substituted as a named defendant, presents a situation like that in Barnes v. Wilson (1974) 40 Cal.App.3d 199, 114 Cal.Rptr. 839. That case was a wrongful death action where plaintiffs substituted named defendants for Does after Vesely v. Sager (1971) 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151, recognized a cause of action against such defendants as dramshop owners that was not available at the time of the original pleadings. The initial complaint contained an omnibus allegation that "each of the defendants designated . . . as a Doe is negligently responsible . . . for the events and happenings herein referred to, and negligently caused injuries and damages proximately thereby to plaintiffs as herein alleged." (Barnes, supra, 40 Cal.App.3d p. 201, 114 Cal.Rptr. p. 841.) The court held that the amendment substituting the dramshop owners for Does came within the principle of Austin, and that the amendment did relate back because "recovery (was) sought on the same general set of facts, (as plaintiffs were seeking to hold the owners) 'responsible for the same occurrence and damage alleged in the original complaint.' " (Smeltzley, supra, p. 938, 136 Cal.Rptr. p. 273, 559 P.2d p. 226.)

In the instant case, plaintiff's original complaint alleges in paragraph I, that defendants Does I-XX were being sued by such fictitious names; in paragraph III, that defendants Does I-X were the registered owners of the vehicle driven by defendant Penegar; and in paragraphs VI and VII, that decedent Maude E. Russell was a passenger in the car driven by Wadsworth, and ". . . (a)t said time and place the defendants and each of them so negligently and carelessly, drove . . . (so) as to collide with the rear of the vehicle in which plaintiff was riding . . . (such that) . . . as a direct and proximate result . . . plaintiff's decedent . . . received injuries resulting in her death. . . ."

We note that the original complaint did not single out and specifically charge the driver of the vehicle in which the decedent was riding with negligence, while the third amended complaint charges that driver, defendant Wadsworth, as well as the other defendants with causing the collision and the consequent death. The substitution and change in the statement of theory was permissible. We held in Austin that suing Massachusetts Bonding by its fictitious name in the original complaint would not be held to defeat a substitution as well as a change of theory which would have been acceptable if defendant had been sued originally by its true name (Austin, supra, 56 Cal.2d p. 602, 15 Cal.Rptr. 817, 364 P.2d 681). Like the plaintiff in Barnes v. Wilson, supra, 40 Cal.App.3d 199, 114 Cal.Rptr. 839, plaintiff here is seeking to hold Wadsworth legally responsible for the same accident and injuries referred to in the original complaint. Moreover, similar to the amendment in Barn...