Nelson v. A. H. Robins Co.

• Decision Date: 14 December 1983
• Citation: 149 Cal.App.3d 862,197 Cal.Rptr. 179
• Court: California Court of Appeals Court of Appeals
• Parties: Terrie R. NELSON, Plaintiff and Appellant, v. A.H. ROBINS COMPANY, Defendant and Respondent. AO11912. Civ. 50900.

Page 179

197 Cal.Rptr. 179

149 Cal.App.3d 862

Terrie R. NELSON, Plaintiff and Appellant, v. A.H. ROBINS COMPANY, Defendant and Respondent.

AO11912.

Civ. 50900.

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

Dec. 14, 1983.

Anthony J. Klein, John C. Hall, Di Giorgio, Davis, Klein, Wegis, Duggan & Friedman, Bakersfield, for plaintiff and appellant.

Jerome M. Varanini, Betty Wolfe, Memering & DeMers, Honer, Varanini, Hurst & Crowle, Professional Corp., Klein & DeVries, Sacramento, Gudmundson, Siggins & Stone, Sedgwick, Detert, Moran & Arnold, San Francisco, for defendant and respondent.

CALDECOTT, Presiding Justice.

Terrie R. Nelson (hereafter plaintiff or appellant) appeals from a judgment dismissing her action against defendant A.H. Robins Company (Robins) pursuant to CODE OF CIVIL PROCEDURE SECTION 581A¹.

On April 22, 1975, plaintiff filed a personal injury action against the Sonoma County Family Planning Clinic (Family Clinic) as a named defendant and Does I through V. The complaint alleged that on or about April 25, 1974, plaintiff attended the Family Clinic for medical treatment; that on said day a physician employed by the Family Clinic inserted an intrauterine device (IUD) into her womb as a part of the treatment; that the physician failed to use reasonable care and skill in carrying out the treatment; and that as a result of the physician's negligence plaintiff suffered bodily injuries.

On August 30, 1978, plaintiff moved to amend the complaint. After hearing the legal arguments of the parties, the trial court granted the motion on September 26, 1978. The first amended complaint filed on October 18, 1978, substituted three named defendants: A.H. Robins Company, the manufacturer of the device, Hugh J. Davis, M.D., a medical consultant, and Irwin S. Lerner, the inventor, for Does I through III; alleged six causes of action based on negligence, product liability, fraud and conspiracy against the newly named defendants; and realleged the negligence cause of action against the Family Clinic.

Since the amended complaint was served on Robins on October 5, 1979, more than three years after the commencement of the action, on November 2, 1979, Robins moved to dismiss the action under section 581a, subdivision (a). On February 27, 1980, the trial court granted the motion and dismissed the action against Robins by finding that Robins brought itself within the provisions of section 581a, subdivision (a). The appeal is from the judgment of dismissal.

Appellant's principal contention on appeal is that the trial court prejudicially erred in dismissing the action against Robins pursuant to section 581a, subdivision (a). More precisely, appellant argues that the naming of Robins and the two other defendants in the amended complaint was, in fact, an addition of new parties rather than a substitution for fictitious Does and that as a consequence the three year statutory period began to run with the filing of the amended complaint. (Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 96 Cal.Rptr. 317.) In the alternative, appellant maintains that the three year period should be counted from the filing date of the amended rather than the original complaint for the additional reason that the amended complaint was predicated on a different general set of facts barring the effect of the relation-back doctrine. (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 154 Cal.Rptr. 472; Elling Corp. v. Superior Court (1975) 48 Cal.App.3d 89, 123 Cal.Rptr. 734.) As the ensuing discussion shall demonstrate, neither of these contentions are well taken.

The pertinent statute, section 581a, subdivision (a), provides in part that: "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." ²

As has been repeatedly emphasized, with respect to a party named in the original complaint the action commences for the purposes of section 581a, subdivision (a), on the date of the filing of the complaint. The same rule applies also in a case where the defendant was named in the original complaint by fictitious name. However, when a new party is added to the action, the action commences as to him on the date of the order adding him as a party or on the date of filing of the pleading naming him as a new party. (Washington v. Nelson (1979) 100 Cal.App.3d 47, 50, 160 Cal.Rptr. 644; Warren v. Atchison, T. & S.F. Ry. Co., supra, 19 Cal.App.3d 24 at p. 38, 96 Cal.Rptr. 317; J.A. Thompson & Sons, Inc. v. Superior Court (1963) 215 Cal.App.2d 719, 722, 30 Cal.Rptr. 471.)

Since in the case at bench Robins was served with the summons and the copy of the amended complaint on October 5, 1979, well within the three years from the filing of the amended complaint, but beyond the time span allowed by section 581a, subdivision (a), if the commencement of the action was to be counted from the filing of the original complaint, the crucial issue arises whether the naming of the three new defendants (including Robins) in the amended complaint was merely a substitution for Does or adding new parties to the action.

The examination of the record as a whole leaves no doubt that in the case at bench the new defendants were named in the amended complaint in lieu of the fictitious Does and that as a result the commencement of the action related back against them to the time of the filing of the original complaint. To start with, the substitution paragraph of the amended complaint reads as follows: "Plaintiff was ignorant of the true names and capacities of the defendants named in the original complaint as DOES I through III. The true names of DOES I, II and III have been discovered to be A.H. Robins Company, Hugh J. Davis, M.D. and Irwin S. Lerner. These three defendants will be designated hereinafter as A.H. ROBINS COMPANY, HUGH J. DAVIS, M.D. and IRWIN S. LERNER."

Moreover, in her moving papers appellant made repeated efforts to convince the court that despite the fact that the injury had occurred in April 1974, the amendments to the complaint were not barred by the statute of limitations because there was only a substitution of the previously designated Doe defendants which related back to the time of filing the original complaint. Appellant in her memorandum of points and authorities in support of her motion cites section 474 (suing a party by fictitious name) three times. The memorandum further states: "The modern rule, where amendment is sought after the statute of limitations has run, is that the amended complaint will be deemed filed as of the date of the original complaint so long as recovery is sought in each complaint upon the same general set of facts. (Citations.)" "A mere change in legal theory will not subject the amended complaint to the bar of the statute of limitations." Also the affidavit of appellant's counsel in support of the motion states: "Upon ascertaining the involvement of defendants A.H. ROBINS, HUGH J. DAVIS, and IRWIN S. LERNER, plaintiff makes this motion to substitute their true names for their former names of DOES I, II and III. Attached hereto and made a part hereof is the Proposed First Amended Complaint for Damages. Therein, DOE I has been designated as A.H. ROBINS COMPANY, DOE II has been designated HUGH J. DAVIS, M.D., and DOE III has been designated as IRWIN S. LERNER.... [p] Plaintiff has attached hereto a Memorandum of Points and Authorities in support of her motion to specifically bring to the Court's attention Code of Civil Procedure § 474 which is to protect plaintiffs under just such circumstances as are presented herein." Indeed, but for the adoption of this argument, the cause would have been barred by the statute of limitations.

Appellant's alternative argument that even if Robins was substituted for a Doe defendant the dismissal of action was improper because the amended complaint was based upon a different general set of facts barring the relation-back doctrine (Munoz v. Purdy, supra, 91 Cal.App.3d 942 at p. 946, 154 Cal.Rptr. 472; Elling Corp. v. Superior Court, supra, 48 Cal.App.3d 89 at pp. 94-95, 123 Cal.Rptr. 734) must be rejected for three reasons. One, in determining whether a new cause of action rests upon the same general set of facts the primary attention must be focused on whether the new pleading involves the same accident (injury) and the same offending instrumentality (Coronet Manufacturing Co. v. Superior Court (1979) 90 Cal.App.3d 342, 345-347, 153 Cal.Rptr. 366). While in the amended complaint appellant alleged a number of the new legal theories (breach of implied and express warranty, product liability, fraud, conspiracy, etc.) in ultimate analysis she sought recovery for the same injury caused by the same offending instrumentality, i.e., the allegedly harmful IUD. It follows that the new causes of action covered in the amended complaint were predicated upon the same general set of facts as the one utilized in the original complaint. Two, the record is indicative that in her motion to amend the complaint appellant herself took the position that the proposed amended complaint rested on the same general set of facts as the original complaint and that as a consequence the causes of action in the amended pleading were not barred by the statute of limitations. Three, had the amended complaint rested on a different general set of facts from that of the original complaint, the leave...