Streicher v. Tommy's Electric Co.

• Decision Date: 19 February 1985
• Citation: 211 Cal.Rptr. 22,164 Cal.App.3d 876
• Court: California Court of Appeals Court of Appeals
• Parties: Frank STREICHER, Plaintiff and Appellant, v. TOMMY'S ELECTRIC COMPANY, et al., Defendants and Respondents. AO19082.

Page 22

211 Cal.Rptr. 22

164 Cal.App.3d 876

Frank STREICHER, Plaintiff and Appellant, v. TOMMY'S ELECTRIC COMPANY, et al., Defendants and Respondents.

AO19082.

Court of Appeal, Sixth District, California.

Feb. 19, 1985.

Roger K. Vehrs, Jeff Wall, Fresno, for plaintiff and appellant.

Ralph W. Robinson, Louis H. Castoria, Kay Kingsley, Wilson, Elser Edelman & Dicker, San Francisco, for defendants and respondents.

PANELLI, Presiding Justice.

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

Facts

On October 4, 1979, plaintiff Frank Streicher filed a complaint for personal injuries sustained on July 16, 1979, at a construction site when certain radio-controlled overhead garage doors opened causing him to fall from the scaffolding upon which he was working. The complaint named as defendants Shippers Development Company (general contractor), Salinas Steel Builders, Inc. (subcontractor), Jack's Overhead Door Company, Inc. and John Hendrix (independent contractors and installers of the electronic doors), as well as four fictitious business entities (Black, White, Blue, and Grey Companies), three fictitious individuals comprising Grey Company as a partnership (Does One, Two, and Three), and ninety-seven additional fictitious defendants (Does Four through One Hundred).

The first paragraph of the complaint alleged that the true names and capacities of the fictitious defendants were unknown to plaintiff, but stated that when these were ascertained plaintiff would move to amend the complaint accordingly. Paragraph six alleged a cause of action for negligence, charging that defendants owned, possessed and controlled the construction site, that they had provided an unsafe workplace through their failure, among other things, to "supervise and control the installation and operation of radio-controlled overhead garage doors" on the worksite, and that such negligence resulted in plaintiff's injuries.

On May 18, 1982, two years and ten months after the accident, and after settlement was obtained with the named defendants, Streicher filed a first amended complaint against respondents Tommy's Electric Company and Shima American Corporation and Does Four through One Hundred. It alleged respondents designed, manufactured, marketed and sold the radio-controlled overhead door openers involved in the accident and that these openers had been defectively designed and would malfunction without human intervention. The amended complaint stated causes of action for negligence, breach of express and implied warranty, and strict products liability. ¹

On June 17, 1982, respondents demurred to the first amended complaint on the ground that the claim was barred by the one year statute of limitations (Code Civ.Proc., § 340, subd. (3)). Respondents also moved the court to judicially notice, pursuant to Evidence Code sections 452 and 453, all the pleadings and records in its file on this case including a cross-complaint filed by Jack's Overhead Doors (one of the named defendants) and a complaint in intervention filed by Industrial Indemnity Co. (plaintiff's employer worker's compensation carrier), both filed in February of 1980, which included respondents among the named defendants and alleged causes of action for indemnity based on a products liability theory.

Respondents argued in their moving papers that since plaintiff's amended complaint did not substitute respondents for any of the fictitiously named defendants in his original complaint, the amended complaint was in fact adding new defendants to the action and that this was not permissible after the running of the one-year statute of limitations. Respondents further argued that even if plaintiff's defective substitution of fictitious defendants was cured, the provisions of Code of Civil Procedure section 474, ² allowing the amendment to relate back to the filing of the original complaint, did not apply because in February of 1980 plaintiff had notice of respondents' identity through the filing of the cross-complaint and intervention pleadings, yet he had nevertheless failed to exercise due diligence in amending his complaint before the expiration of the statute of limitations in July 1980.

Streicher opposed respondent's demurrer and moved for leave to amend his complaint in order to properly substitute respondents for specifically named fictitious defendants, arguing his failure to do so constituted a procedural error which could be easily cured. Streicher also argued the benefits afforded by section 474 should apply because he was not aware of any facts constituting the basis for a products liability cause of action against respondents until March 30, 1982 when an electronics expert indicated that the electronic door controllers involved in the accident were defective.

The court sustained respondents' demurrer without leave to amend on the ground the statute of limitations barred the action. The court's minute order also noted that plaintiff's early pleadings were consistent with his belief that "before March 30, 1982 ... [he] had no basis for an action against the two defendants." This appeal followed.

Discussion

On appeal, Streicher contends the trial court erroneously sustained the demurrer and abused its discretion in denying him leave to amend the complaint to cure his failure to specifically substitute respondents for fictitious defendants named in the original complaint. We find these contentions meritorious.

Preliminarily we must determine whether Streicher's first amended complaint, absent his defective substitution of respondents for the fictitiously named defendants relates back to the filing date of the original complaint under section 474, thus defeating the bar of the statute of limitations.

'The purpose of ... section 474 is to enable a plaintiff who is ignorant of the identity of the defendant to file his complaint before his claim is barred by the statute of limitations. There is a strong policy in favor of litigating cases on their merits, and the California courts have been very liberal in permitting the amendment of pleadings to bring in a defendant previously sued by fictitious name." (Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 7, 192 Cal.Rptr. 380, citing Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600, 602, 603, 15 Cal.Rptr. 817, 364 P.2d 681; see also Motor City Sales v. Superior Court (1973) 31 Cal.App.3d 342, 345, 107 Cal.Rptr. 280.) It is also well settled that the amended pleading will relate back to the date of filing of the original complaint provided it seeks recovery on the same general set of facts as alleged in the original complaint. (Austin v. Massachusetts Bonding & Insurance Co., supra, 56 Cal.2d at p. 600, 15 Cal.Rptr. 817, 364 P.2d 681; Barnes v. Wilson (1974) 40 Cal.App.3d 199, 203, 114 Cal.Rptr. 839; Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 937, 136 Cal.Rptr. 269, 559 P.2d 624; Barrows v. American Motors Corp., supra, 144 Cal.App.3d at p. 7, 192 Cal.Rptr. 380.) Moreover, it is clear that where the original complaint contains standard Doe allegations alleging negligence theories, it is proper to amend the complaint to bring in other defendants on warranty and products liability; since the amendment involves the same accident and injury, the amendment relates back to satisfy the statute of limitations. (Barrows v. American Motors Corp., supra, 144 Cal.App.3d at p. 7, 192 Cal.Rptr. 380; Garrett v. Crown Coach Corp. (1968) 259 Cal.App.2d 647, 66 Cal.Rptr. 590.)

However, in order to claim the benefits of section 474, plaintiff's ignorance of defendant's true name must be genuine and not feigned. (Stephens v. Berry (1967) 249 Cal.App.2d 474, 477, 57 Cal.Rptr. 505; Schroeter v. Lowers (1968) 260 Cal.App.2d 695, 700, 67 Cal.Rptr. 270; Scherer v. Mark (1976) 64 Cal.App.3d 834, 840, 135 Cal.Rptr. 90.) We must therefore look to see whether plaintiff knew defendant's true name at the time he filed his original complaint. Plaintiff's requisite ignorance of defendant's name under section 474 has been expansively interpreted by the courts to encompass situations where " 'he knew the identity of the person but was ignorant of facts giving him a cause of action against the person [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. [Citations.]' " (Marasco v. Wadsworth (1978) 21 Cal.3d 82, 88, 145 Cal.Rptr. 843, 578 P.2d 90, quoting with approval Barnes v. Wilson, supra, 40 Cal.App.3d at p. 205, 114 Cal.Rptr. 839.) Moreover, section 474's ignorance requirement "is restricted to the knowledge of the plaintiff at the time of filing of the complaint" (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 947, 154 Cal.Rptr. 472, emphasis added; Mishalow v. Horwald (1964) 231 Cal.App.2d 517, 522-523, 41 Cal.Rptr. 895), "and does not relate to steps that should be taken after the filing of the action." (Ibid.)

Guided by the foregoing principles we turn to the case at bar. Streicher's original complaint contained standard "Doe" allegations against fictitious defendants then unknown, as required by section 474. Although the original complaint alleged a cause of action for negligence against all defendants for failing to provide a safe place to work, it was proper to amend the complaint to bring in the defectively substituted defendants on the additional warranty and products liability theories of recovery since the amendment involved the same accident and injury alleged in the original complaint. (See Smeltzley v. Nicholson Mfg. Co., supra, 18 Cal.3d at p. 937, 136 Cal.Rptr. 269, 559 P.2d 624.) It is undisputed that at the time Streicher's original complaint...