Stanley v. Kawakami
| Decision Date | 30 August 1954 |
| Citation | 127 Cal.App.2d 277,273 P.2d 709 |
| Court | California Court of Appeals |
| Parties | STANLEY v. KAWAKAMI et al. Civ. 15915. |
Stewart Cureton, Santa Cruz, John H. Machado, San Jose, for appellant.
Campbell, Custer, Warburton & Britton and Alfred B. Britton, Jr., San Jose, W. R. Dunn, Burlingame, of counsel, for respondent.
Plaintiff appeals from a judgment on the pleadings entered in favor of respondent Paschote. The action arises out of a collision involving several automobiles which is alleged to have occurred on January 7, 1951. The complaint was filed on March 12, 1951 and respondent was served as Doe One, a fictitious defendant, on April 7, 1951. Respondent filed an answer which consisted of denials and separate affirmative defenses of plaintiff's negligence proximately contributing to his damage, assumption of risk and unavoidable accident.
The case was set for trial on April 17, 1953 and at the outset of the trial respondent moved for judgment on the pleadings on the ground that the complaint did not state a cause of action against him. Appellant countered with a motion to amend his complaint on its face to allege: 'That on or about the 7th day of January, 1951 * * * Joe Paschote was operating an automobile, and * * * did * * * negligently, carelessly and unlawfully drive said automobile, and the same collided with plaintiff's automobile * * *.' The court denied the motion to amend and granted the motion for judgment on the pleadings.
The complaint sought both damages for personal injuries to plaintiff and property damage to his automobile. The complaint alleged as to Doe One and the other fictitious defendants that their 'true names and capacities * * * are unknown to plaintiff, who therefore sues said defendants by such fictitious names, and will ask leave of this court to amend this complaint to show their true names and capacities when they have been ascertained.' There were adequate allegations in the complaint charging negligent conduct of the named defendants Kawakami and Falks, but no further allegation as to the fictitious defendants.
'The rule is established in California that where a defendant is designated by a fictitious name in an original complaint and no attempt is made therein to state any cause of action against such fictitious defendant, if * * * an attempt is made in an amended complaint to state a cause of action against such fictitious defendant, the statute of limitations is computed from the date of the alleged acts to the date of the filing of the amended complaint and not to the date of the filing of the original complaint.' Kolodziejski v. Hover, 124 Cal.App.2d 731, 269 P.2d 163, 164; Sullivan v. Wright, 124 Cal.App.2d 836, 269 P.2d 671; Gates v. Wendling Nathan Co., 27 Cal.App.2d 307, 81 P.2d 173. Under this rule any cause of action for personal injuries against respondent would appear to have been barred by the one year statute long before appellant sought to amend his complaint.
Appellant argues that by filing an answer respondent in some...
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