Milam v. Dickman Const. Co.

• Decision Date: 17 August 1964
• Citation: 40 Cal.Rptr. 130,229 Cal.App.2d 208
• Court: California Court of Appeals Court of Appeals
• Parties: Ruth MILAM, Plaintiff and Appellant, v. DICKMAN CONSTRUCTION COMPANY, a California Corporation, Mountain View Garbage Company, W. B. Dickman and Edith Dickman, Defendants and Respondents. Civ. 21580.

Page 130

40 Cal.Rptr. 130

229 Cal.App.2d 208

Ruth MILAM, Plaintiff and Appellant, v. DICKMAN CONSTRUCTION COMPANY, a California Corporation, Mountain View Garbage Company, W. B. Dickman and Edith Dickman, Defendants and Respondents.

Civ. 21580.

District Court of Appeal, First District, Division 2, California.

Aug. 17, 1964.

Rea, Frasse, Anastasi, Clark & Lewis, by H. L. Isola, San Jose, for appellant.

John R. Lamoreaux, Salinas, for respondents.

AGEE, Justice.

Plaintiff's complaint alleges that she was a tenant of 'Blossom Valley Shopping Center' and that on August 6, 1961 she sustained personal injuries resulting from the use of a garbage container on said premises; that defendant Dickman Construction Company, a corporation, is the owner, lessor and manager of said premises; that defendant Mountain View Garbage Company services the premises and provided said garbage container; that defendant Dickman Construction Company negligently controlled and maintained said premises and that it and defendant Mountain View Garbage Company negligently 'caused an unsafe and unfit garbage container to be provided and maintained for the use of the plaintiff in that said container required the user to balance herself on a small ledge protruding from the side of said container and was without benefit of any guard or safety device.'

Summons and complaint were served on Joe Bold as vice-president of Dickman Construction Company. It filed an unverified answer, generally denying the allegations of the complaint and adding the defenses of contributory negligence and assumption of risk. ^*

On December 14, 1962, after the one-year statute of limitations had run, plaintiff filed a motion to amend her complaint to substitute the names of W. B. Dickman and Edith Dickman for that of defendant Dickman Construction Company. The motion was made under section 473 of the Code of Civil Procedure, which provides that 'The court may, in furtherance of justice, * * * allow a party to amend any pleading or proceeding * * * by correcting a mistake in the name of a party * * *.'

Plaintiff's affidavit in support of this motion alleges that she believed and so informed her attorneys that the owner and lessor of the shopping center was the Dickman Construction Company; that she based this belief upon the fact that the office occupied by the manager of the center and by W. B. Dickman and his associates displayed a sign with the name of 'Dickman Construction Company' on it; that while her lease as a tenant of said shopping center was executed by W. B. Dickman and Edith Dickman, as owners and lessors, she believed that they were only acting on behalf of Dickman Construction Company; that she did not show her lease to her attorneys until after October 11, 1962.

The owner and lessor of the property is stated on the face of the lease to be 'W. B. DICKMAN and EDITH DICKMAN, husband and wife.' If is dated March 2, 1956 and is for a term of ten years.

The affidavit of plaintiff's attorney alleges that on October 11, 1962 he took the deposition of Edward M. McGlade, the manager of said shopping center, and from the information thereby obtained he learned for the first time that the Dickmans were the owners and lessors of the shopping center.

The lower court followed the general rule and denied plaintiff's motion to amend. It expressly based its ruling upon Thompson v. Palmer Corporation, 138 Cal.App.2d 387, 291 P.2d 995, wherein it is stated: 'Whether an amendment of a pleading will be allowed to change the description or characterization from an individual, a partnership or other association, after the statute of limitations has run depends on whether the misdescription or mischaracterization is merely a misnomer or defect in the description or characterization, or whether it is a substitution or entire change of parties. In the former case an amendment will be allowed; in the latter, it will not be allowed.' (138 Cal.App.2d p. 390, 291 P.2d p. 997.) At pages 395-396, of 138 Cal.App.2d, at page 1001 of 291 P.2d, the court quotes with approval from 8 A.L.R.2d 166, section 81, as follows: "[W]here an action is brought against a corporation whereas it should have been brought against a partnership, or vice versa, an amendment substituting the proper party defendant after the statute of limitations has run is generally held to be vulnerable to a plea of the statute. And the same rule applies in the case of the substitution of individuals as defendants for the partnership or corporation, or vice versa.' Citing numerous decisions including Craig v. San Fernando Furniture Co., supra, 89 Cal.App. 167, 264 P. 784.'

Thompson v. Palmer Corporation, supra, was an action for damages for personal injuries, in which the original complaint named as defendants five individuals "doing business as BOB 'N DEL," the Palmer Corporation, and some Does. After the statute of limitations had run, plaintiff amended the complaint to allege the corporate capacity of Bob 'N Del. A judgment of dismissal as to the latter corporation was affirmed on appeal, the court pointing out that if Bob 'N Del had been originally designated as a party defendant and incorrectly described as a partnership, a different question would have been presented. (Cf. Craig v. San Fernando Furniture Co., discussed below.) However, the statement that the five individual defendants were doing business under the name of Bob 'N Del was held to be merely descriptive of these individuals and that Bob 'N Del was never a defendant in any capacity prior to the amendment.

Plaintiff cites and relies upon four cases in which an exception to the general rule was allowed. (Thompson v. Southern Pac. Co., 180 Cal. 730, 183 P. 153; Walsh v. Decoto, 49 Cal.App. 737, 194 P. 298; Craig v. San Fernando Furniture Co., 89 Cal.App. 167, 264 P. 784; Smith v. Pickwick Stages System, 113 Cal.App. 118, 297 P. 940.)

In each of these cases the plaintiff's mistake take as to the name or capacity of a defendant was held to be reasonably excusable under the particular circumstances involved therein. In each the mistake was occasioned by reason of dual entities with strikingly similar business names or by reason of a fictitious name under which a defendant was doing business. No such circumstances are present in the instant action.

In Thompson v. Southern Pacific Co., supra, plaintiff was allowed to change his pleadings from Southern Pacific Railroad Company, a California Corporation, to Southern Pacific Company, which was a Kentucky corporation and the operating company involved in the accident. The court stressed the fact that the authorized agent in California of the Kentucky corporation had been served with process and that the court had jurisdiction of the person of said defendant as well as of the subject matter of the action. The court expressly distinguished Altpeter v. Postal Telegraph-Cable Co., 26 Cal.App. 705, 148 P. 241, on this ground. (In the instant case, neither of the Dickmans had been served with process nor had the court acquired jurisdiction of their persons at the time of the ruling on plaintiff's motion to amend.)

In Walsh v. Decoto, supra, plaintiff named 'Blue Taxicab Corporation' as defendant. Process was served on one Decoto, who told the process server to make a return showing service upon him as president of the Blue Taxicab Corporation. Plaintiff was thereafter allowed to amend her complaint to substitute Decoto, 'doing business under the name and style of Blue Taxicab Company,' in place of the original named defendant. The court emphasized that the mistake had been caused by defendant's use of a fictitious corporate name and that he should not 'be heard to say after service upon him personally and with full notice of the situation, that the action had been begun in the wrong name and should therefore be abated.' (49 Cal.App. p. 742, 194 P. p. 300.)

In Craig v. San Fernando Furniture Co., supra, plaintiff was allowed to change his allegation as to the capacity of San Fernando Furniture Company from that of a corporation to that of a co-partnership of the same name. The court held that this was an instance of misnomer rather than pursuit of the wrong defendant, saying: 'Where a group of people are conducting a business under a common name, the law recognizes...