Munoz v. Purdy

• Citation: 91 Cal.App.3d 942,154 Cal.Rptr. 472
• Court: California Court of Appeals Court of Appeals
• Decision Date: 16 April 1979
• Parties: Sonia MUNOZ, Plaintiff and Appellant, v. Everett K. PURDY, Defendant and Respondent. Civ. 16980.

Page 472

154 Cal.Rptr. 472

91 Cal.App.3d 942

Sonia MUNOZ, Plaintiff and Appellant, v. Everett K. PURDY, Defendant and Respondent.

Civ. 16980.

Court of Appeal, Fourth District, Division 1, California.

April 16, 1979.

Miller, Boyko & Bell and Terry D. Harper, San Diego, for plaintiff and appellant.

Ault, Midlam & Reynolds and Larry A. Shoffner, San Diego, for defendant and respondent.

WIENER, Associate Justice.

We are asked to decide in this appeal whether the trial court properly interpreted and applied Code of Civil Procedure section 474 ¹ in granting Everett K. Purdy's motion for summary judgment based upon the one-year statute of limitations (§ 340.5). For the reasons which we will discuss, we conclude the trial court used an erroneous standard in holding that the plaintiff was charged with not only her actual knowledge at the time she filed suit, but information that she could have obtained upon the exercise of reasonable diligence which would have enabled her to file suit against Dr. Purdy in a timely fashion. We reverse the judgment of dismissal.

Defendant Everett K. Purdy, M.D. (Purdy), a board-certified orthopedic surgeon, performed foot surgery on the plaintiff Sonia Munoz on February 16, 1973 at the Paradise Valley Hospital. Shortly after her surgery, she was taken to the radiology department of the hospital for a chest x-ray. She was asked to stand for the x-ray and fainted. She then began to suffer severe headaches and on March 1, complained to Purdy of her symptoms. She consulted counsel on or about March 16, 1973, at which time she believed she had been a victim of medical malpractice. Her records at the Paradise Valley Hospital were copied on March 30, 1973, pursuant to written authorization signed by her on March 26, 1973. Her action for medical malpractice was filed on January 7, 1974; Purdy was not specifically named as a defendant. He was substituted for doe I on May 22, 1975. Plaintiff appeals from the judgment of dismissal which was entered after Purdy's motion for summary judgment was granted.

The applicable statute of limitations affecting the plaintiff's action for medical malpractice is contained in section 340.5. She had one year after she discovered, or through the use of reasonable diligence should have discovered, the injury for which she sought damages. As used in section 340.5, the word "injury" means both the physical condition and its negligent cause. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99, 132 Cal.Rptr. 657, 553 P.2d 1129.) The plaintiff believed, on or about March 16, 1973, that she was the victim of medical malpractice. If she had deferred filing her complaint until May 22, 1975, the one-year statute of limitations would have been an effective bar to her complaint against all defendants, including Purdy. Possession of "presumptive" as well as "actual" knowledge will commence the running of the statute of limitations. " '(Where) the plaintiff has notice or information of circumstances to put a reasonable person On inquiry, or Has the opportunity to obtain knowledge from sources open to his investigation . . . the statute commences to run.' " (Id., at p. 101, 132 Cal.Rptr. at p. 663, 553 P.2d at p. 1135.)

Plaintiff contends Purdy may not assert the one-year period under section 340.5 because when her action was timely filed, she was ignorant of his name within the meaning of section 474. A plaintiff ignorant of the identity of a party responsible for damages may name that person in a fictitious capacity, a doe defendant, and the time limit prescribed by the applicable statute of limitations is extended as to the unknown defendant. A plaintiff has three years under section 581a ² after the commencement of the action to discover the identity of the unknown defendant and effect service of the complaint. (Rumberg v. Weber Aircraft Corp. (D.C.1976) 424 F.Supp. 294, 297.) When the complaint is amended to substitute the true name of the defendant for the fictional name, the defendant is regarded as a party from the commencement of the suit, provided the complaint has not been amended to seek relief on a different theory based on a general set of facts other than those set out in the original complaint. (Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600, 15 Cal.Rptr. 817, 364 P.2d 681; Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 583, 86 Cal.Rptr. 465, 468 P.2d 825; Wilson v. Bittick (1965) 63 Cal.2d 30 37-38, 45 Cal.Rptr. 31, 403 P.2d 159; Breceda v. Gamsby (1968) 267 Cal.App.2d 167, 170, 72 Cal.Rptr. 832; Garrett v. Crown Coach Corp. (1968) 259 Cal.App.2d 647, 650-651, 66 Cal.Rptr. 590.) The statute (§ 474) must be liberally construed to enable a plaintiff to avoid the bar of the statute of limitations where he is ignorant of the identity of the defendant. (Barnes v. Wilson (1974) 40 Cal.App.3d 199, 203, 114 Cal.Rptr. 839.)

" '(T)he phrase "when the plaintiff is ignorant of the name of a defendant" in Code of Civil Procedure section 474 has not been interpreted literally. The plaintiff is deemed "ignorant of the name" if he knew the identity of the person but was ignorant of the facts giving him a cause of action against the person(s) (citations), or knew the name and all the facts but was unaware that the law gave him a cause of action against the fictitiously named defendant and discovered that right by reason of decisions rendered after the commencement of the action.' " (Marasco v. Wadsworth (1978) 21 Cal.3d 82, 88, 145 Cal.Rptr. 843, 846, 578 P.2d 90, 93, citing Barnes v. Wilson, supra, 40 Cal.App.3d 199, 205, 114 Cal.Rptr. 839.)

A plaintiff should not be permitted to name a known defendant in a fictitious manner hoping to surprise a defendant by reviving a "claims that have been allowed to slumber until evidence has been lost, memories have faded and witnesses have disappeared." (Elkins v. Derby (1974) 12 Cal.3d 410, 417, 115 Cal.Rptr. 641, 646, 525 P.2d 81, 86, quoting from Order of R. Telegraphers v. Railway E. Agency (1944) 321 U.S. 342, 348-349, 64 S.Ct. 582, 88 L.Ed. 788.) Section 474, however, does not relate to the steps which should be taken after the filing of the action; it is restricted to the knowledge of the plaintiff at the time of filing of the complaint. (Mishalow v. Horwald (1964) 231 Cal.App.2d 517, 521-522, 41 Cal.Rptr. 895.) Presumedly, the statutory scheme involving sections 340.5, 474 and 581a, subd. (a), which places a limit of three years after the filing of the action to identify and serve all defendants including the unknown defendant, has been a satisfactory compromise between the harsh effect on a plaintiff of the statute of limitations and the unfairness to a defendant of attempting to litigate a stale claim.

The lack of knowledge of the true name of a defendant, however, must be "real and not feigned." (Schroeter v. Lowers (1968) 260 Cal.App.2d 695, 700, 67 Cal.Rptr. 270.) A plaintiff must actually be ignorant of the facts giving him a cause of action against a defendant. "Ignorance of the facts is the critical issue, and whether it is due to misfortune or negligence is not relevant." (Breceda v. Gamsby, supra, 267 Cal.App.2d 167, 174-175, 72 Cal.Rptr. 832, 838; see also Hoffman v. Keeton (1901) 132 Cal. 195, 64 P. 264; Irving v. Carpentier (1886) 70 Cal. 23, 11 P. 391.)

Defendant urges that the standard which must be used in analyzing section 474 is not only that the lack of knowledge of defendant's true name be real and not feigned, but that knowledge which might be obtained "by some...