Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2007-00060849- CU-PA-NC, Jacqueline M. Stern, Judge.
NARES, J.
In this automobile accident case, plaintiff Maria Christine Lomas appeals a summary judgment entered in favor of Karl Dragosz, whom Lomas named as a defendant in the place of a previously named fictitious Doe defendant─after the applicable two-year statute of limitations period (Code Civ. Proc., § 335.1) expired─by means of a February 2008 amendment to her timely original complaint under section 474. In her original complaint, Lomas named Karl's father, Walter, who was the registered owner of the car Karl was driving at the time of the accident, as the sole named defendant.
In her amended pleading, Lomas named as defendants both Karl Dragosz and his father, Walter Dragosz. In the interest of clarity, we shall refer to Karl Dragosz and Walter Dragosz by their first names only. We intend no disrespect.
All further statutory references are to the Code of Civil Procedure. Section 335.1 provides: "Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another."
Citing this court's decision in Woo v. Superior Court (1999) 75 Cal.App.4th 169 (Woo), the trial court found that Lomas's claim against Karl was time-barred because the undisputed material facts established that she knew Karl's identity on the day of the August 2005 accident, she was not genuinely ignorant of Karl's identity for purposes of section 474 when she filed her original complaint because information about Karl's identity was readily available to her at that time, and her Doe amendment naming Karl as a defendant thus did not relate back to the date of filing of her original complaint.
Lomas contends the grant of summary judgment in favor of Karl must be reversed because (1) Karl failed to make a prima facie showing that Lomas knew at the time she filed her complaint that Karl was the driver of the car that hit her and that she was feigning ignorance of his identity in order to comply with the requirements of section 474; and (2) the court imposed a duty that does not exist under the law when it imposed on her a duty under Woo, supra, 75 Cal.App.4th 169, to search readily available information to confirm Karl's true identity when she knew his last name was Dragosz but mistakenly believed his first name was Walter. We conclude these contentions are unavailing. Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
On August 31, 2005, Karl was involved in an automobile accident with Lomas while driving a Nissan Altima that was registered to his father, Walter. As he was exiting the parking lot of a shopping center with the intention of making a left turn onto Valley Parkway in Escondido, California, Karl drove the Nissan into the rear of Lomas's Honda Civic. Escondido Police Department officers arrived at the scene of the collision and facilitated the exchange of information by providing to Lomas and Karl a traffic accident information card. Karl filled out the card, listing his name as the driver of the driver of the Nissan, Walter's name as the registered owner, the name of the automobile insurance carrier (Mercury Insurance), and the policy number.
At the scene of the accident, Karl gave to Lomas the traffic accident information card that he had filled out. Lomas used the information on the card to report the accident both to her own insurance carrier and to Karl's insurer, Mercury Insurance. In giving her recorded statement to Mercury Insurance, Lomas read the information on card, including Karl's name. When she reported the accident to her own insurance carrier, Lomas read Karl's name from the card. Lomas submitted a claim to Mercury Insurance, which settled her claim for property damage to her car. She also pursued a personal injury claim.
PROCEDURAL BACKGROUND
A. Lomas's Original Complaint
In preparing Lomas's personal injury complaint in this matter, her attorney named only Walter and Does 1-25 as defendants. When she reviewed the complaint, she recognized the last name Dragosz, but did not remember that the driver was Karl, not Walter.
On August 24, 2007, Lomas filed her original complaint, which alleged a cause of action for personal injury arising from negligence, within the time allowed under the two-year limitations period set forth in section 335.1.
B. Lomas's Doe Amendment Naming Karl As A Defendant
On or about February 8, 2008, about two years and five months after the occurrence of the August 31, 2005 accident, Lomas filed with leave of court a Doe amendment that amended her complaint to add Karl as a named defendant. On the amendment application form, Lomas indicated she was amending her complaint under section 474 because she was ignorant of Karl's true name at the time she filed the complaint, and she had designated him in the complaint by the fictitious name of Doe 1. Lomas thereafter served Karl with both the complaint and the amendment to the complaint naming him in the place of Doe 1.
C. Karl's Summary Judgment Motion
Karl filed a motion for summary judgment or summary adjudication in which he argued that Lomas's action against him was barred because she did not name him in the complaint until after the two-year limitations period set forth in section 335.1 had expired, and her section 474 Doe amendment was not valid because she feigned ignorance of Karl's true name at the time she filed her complaint in order to satisfy the requirements of section 474.
In her written opposition to the motion, Lomas did not dispute that she had learned at the scene of the accident that Karl was the driver of the car that hit her and that she had received the traffic accident information card he had filled out, in which he had named himself as the driver of the car that collided with hers. Rather, she claimed she was ignorant of Karl's first name when she named Walter in her original complaint because she mistakenly believed it was Walter. She also claimed she did not possess at that time any readily available information from which she could have ascertained his true name. In her January 2009 declaration in opposition to Karl's motion (hereafter referred to as Lomas's January 2009 declaration), Lomas stated in paragraph No. 11 that when she reviewed the complaint prepared by her attorney, she had forgotten that the name of the driver who struck her was Karl, and she believed the driver's name was Walter. She stated in paragraph No. 12 of her declaration that when she received the complaint, the traffic accident information card was "not readily available to [her], as [she] did not know where it was," and she did not have any other information from which she could identify the actual name of the driver.
In his written reply, Karl asked the court to take judicial notice of a previous declaration that Lomas executed in November 2008 and filed with the court in this case on December 1, 2008, in which she stated under penalty of perjury that in the course of responding to discovery questions she received from her attorney in November 2007, she reviewed all of her "old papers" and found the traffic accident information card, which listed Karl as the driver, and Walter as the owner, of the car that struck her.
D. Order and Judgment
The court granted Karl's request for judicial notice of Lomas's November 2008 declaration. Following oral argument, the court granted Karl's motion for summary judgment, finding that Lomas's claim against Karl was barred by the two-year statute of limitations (§ 335.1) because Lomas's own declarations established that she knew Karl's name on the day of the accident, and the information regarding his identity as the driver of the car that hit her was readily available to her within the meaning of Woo, supra, 75 Cal.App.4th 169, as shown by her admission that the information regarding the driver's identity was in her possession among her "old papers," and she gave that information to Mercury Insurance in a recorded statement.
The court thereafter entered judgment in Karl's favor. Lomas's appeal from the judgment followed.
STANDARD OF REVIEW
On an appeal from a grant of summary judgment, we independently examine the record, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained, to determine whether a triable issue of material fact exists. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) In performing our de novo review, we view the evidence in a light favorable to the losing party (here, Lomas), liberally construing her evidentiary submission while strictly scrutinizing the prevailing party's (here, Karl's) own showing, and resolving any evidentiary doubts or ambiguities in favor of the losing party. (Saelzler, supra, at pp. 768-769.)
"[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted, (Aguilar).) "A defendant [moving for summary judgment] bears the burden of persuasion that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense thereto.' " (Ibid.; § 437c, subds. (o), (p)(2).) In such a case, the moving defendant bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.)
If the moving defendant meets his burden of production, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Ibid., fn. omitted.)
DISCUSSION
Lomas contends the grant of summary judgment in favor of Karl must be reversed because (1) Karl failed to make a prima facie showing that she knew at the time she filed her complaint that he was the driver of the car that hit her and that she was feigning ignorance of his identity in order to comply with the requirements of section 474; and (2) the court imposed a duty that does not exist under the law when it imposed on her a duty under Woo, supra, 75 Cal.App.4th 169, to search readily available information to confirm Karl's true identity when she knew his last name was Dragosz but mistakenly believed his first name was Walter. We reject these contentions.
In granting summary judgment in favor of Karl, the court found that Lomas's negligence action against Karl was barred by the applicable two-year statute of limitations (§ 335.1). On de novo review, we also conclude Lomas's action against him is time-barred under that section. It is undisputed that the automobile accident in question occurred on August 31, 2005, when the car Karl was driving collided with Lomas's car; that Lomas filed her original complaint on August 24, 2007, within the two-year limitations period, against Karl's father Walter, who was the registered owner of the car Karl was driving, and Does Nos. 1-25; and that she did not name Karl as a defendant in that pleading. The record also shows that Lomas filed the Doe amendment to her complaint, with leave of court under section 474, naming Karl as a defendant on or about February 8, 2008, about two years and five months after the occurrence of the August 2005 accident.
The record shows, and Lomas does not dispute, that she named Karl as a defendant under section 474 after the two-year limitations period expired, but she contends on appeal, as she did in her written opposition to Karl's summary judgment motion, that her action against him is not time-barred because she was genuinely ignorant of his true name at the time she filed her original complaint, and thus her Doe amendment naming him as a defendant is deemed filed under the section 474 relation-back doctrine as of the date she filed her timely original complaint. This contention is unavailing.
Section 474 provides in part: "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly."
In Woo, supra, 75 Cal.App.4th at page 176, this court explained the section 474 relation-back doctrine: "The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. [Citations.] A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. [Citations.] If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed."
Woo also explained that among the requirements for application of the section 474 relation-back doctrine are (1) the "procedural" requirement that "the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint," and (2) the "nonprocedural" requirement that the plaintiff "must have been genuinely ignorant of [the new defendant's] identity at the time she filed her original complaint." (Woo, supra, 75 Cal.App.4th at pp. 176-177.) "The omission of the defendant's identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. [Citation.] Furthermore, if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay. [Citation.] However, if the plaintiff is actually ignorant of the defendant's identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiff's negligence." (Woo, supra, at p. 177.)
Here, we reject Lomas's contention that Karl failed to make a prima facie showing that she knew at the time she filed her complaint that Karl was the driver of the car that hit her and that she was feigning ignorance of his identity in order to comply with the requirements of section 474. Citing Lomas's own deposition testimony, Karl showed that Lomas learned his and Walter's identities at the scene of the accident when Karl and Lomas exchanged pertinent insurance and identification information, and she reported the accident to Mercury Insurance, his automobile insurance carrier. Specifically, Karl showed that during her deposition, Lomas testified that in giving her recorded statement to Mercury Insurance she read the information on the traffic accident information card, including Karl's name.
Because Karl presented admissible evidence showing that Lomas learned his identity at the scene of the accident, and she identified him as the driver who hit her when she gave her statement to the insurance carrier, we conclude Karl met his initial burden of producing evidence showing that she knew at the time she filed her complaint that Karl was the driver of the car that hit her and that she was not genuinely ignorant of his identity when she sought leave of court under section 474 to name him as a defendant in her complaint after the limitations period expired. The burden of production thus shifted to Lomas to make a prima facie showing that she was genuinely ignorant of Karl's identity at the time she filed her complaint. (See Aguilar, supra, 25 Cal.4th at p. 850.)
Lomas attempted to meet her burden of production by submitting her January 2009 declaration in which she stated in paragraph No. 11 that she believed the driver's name was Walter when she reviewed the complaint prepared by her attorney, and she had forgotten that the name of the driver who struck her was Karl. She also stated in paragraph No. 12 of her declaration that when she received the complaint, the traffic accident information card was "not readily available to [her], as [she] did not know where it was," and she did not have any other information from which she could identify the actual name of the driver.
We conclude, as did the trial court, that Lomas's January 2009 declaration was insufficient to create a triable issue of material fact as to whether she was genuinely ignorant of Karl's identity within the meaning of section 474 at the time she filed her complaint. In Woo, this court rejected the equation of a claimed memory lapse with the actual ignorance requirement of section 474 and held that, "when the plaintiff had actual knowledge of the defendant's identity prior to filing a complaint, but has forgotten the defendant's identity at the time of filing the complaint, the plaintiff must review readily available information that discloses the defendant's identity to invoke the section 474 relation-back doctrine; otherwise, the plaintiff is not in good faith using section 474." (Woo, supra, 75 Cal.App.4th at p. 180, italics added.) Woo explained that, "if the plaintiff knows the defendant's identity and then forgets it at the time the complaint is filed, to use the section 474 relation-back doctrine to avoid the bar of the statute of limitations the plaintiff must have at least reviewed readily available information likely to refresh his or her memory. If the defendant cannot be identified from readily available information, then section 474 is available; if the defendant can be identified from the readily available information, then section 474 is unavailable. This rule retains meaning to the actual ignorance requirement of section 474." (Woo, supra, at p. 180.)
Because the record here shows that Lomas's own previously filed declaration, of which the court properly took judicial notice during the summary judgment proceeding, established that the traffic accident information card containing Karl's identity as the driver who hit her was in her possession at the time of filing of her complaint, and Lomas did not review this readily available information that was likely to refresh her memory about Karl's identity, we conclude that she failed to meet her burden to make a prima facie showing of the existence of a triable issue of material fact as to whether she was genuinely ignorant of Karl's identity within the meaning of section 474 at the time she filed her complaint.
We reject Lomas's contention that the trial court imposed a duty that does not exist under the law when it imposed on her a duty under Woo to search readily available information to confirm Karl's true identity when she knew his last name was Dragosz but mistakenly believed his first name was Walter. The plaintiff's duty under section 474 to review readily available information is a duty that exists under statutory law as interpreted by decisional law. (§ 474; Woo, supra, 75 Cal.App.4th at p. 180.)
Lomas's reliance on Balon v. Drost (1993) 20 Cal.App.4th 483 (Balon), is unavailing. In Balon, the plaintiff was involved in a traffic collision with another vehicle driven by Hurley and owned by Drost. (Id. at p. 485.) Immediately after the accident the plaintiff and driver Hurley exchanged personal identification information; Hurley wrote his name and some other information on a piece of paper, which the plaintiff placed in her purse. (Id. at pp. 485-486.) The plaintiff contacted an attorney shortly before the statute of limitations was to expire, but was unable to identify driver Hurley. She had forgotten both Hurley's name and the paper on which Hurley's identification was recorded. (Id. at p. 486.) Before the statute of limitations expired, the plaintiff's attorney filed suit against the vehicle owner Drost and included a cause of action against fictitiously named Doe defendants. (Ibid.) Within two weeks after the limitations period expired, the plaintiff's attorney obtained Hurley's identity from the police accident report and filed an amended complaint under section 474, adding Hurley as a defendant previously named as a fictitious defendant. (Ibid.) The trial court determined that under these circumstances the plaintiff had ignored rather than been uninformed of the existence of Hurley, who could easily have been identified, and therefore was not entitled to amend her complaint under section 474 to name Hurley as a defendant after the statute of limitations had expired. (Ibid.)
In a divided opinion, the appellate court in Balon equated forgetting a defendant's known identity with actual good faith and nonfeigned ignorance of the defendant's identity, denied the existence of a duty to make any effort to obtain easily accessible information to refresh one's memory, and reversed the trial court. (Balon, supra, 20 Cal.App.4th at pp. 489-490.) Citing Irving v. Carpentier (1886) 70 Cal. 23, the majority opinion considered forgetfulness with no effort to refresh memory to be negligent ignorance and held that negligent ignorance of a defendant's identity does not preclude adding a defendant under section 474 after the statute of limitations expired. (Balon, supra, at pp. 488-489.)
Lomas's reliance on Balon is unavailing because in Woo, supra, 75 Cal.App.4th at pages 179-180, this court declined to follow Balon, concluding that "Balon establishes an undesirable rule for the 'I knew but forgot' assertion under section 474" and finding persuasive the dissenting opinion of Justice Phelan, who rejected in that case the equation of a claimed memory lapse with the actual ignorance requirement of section 474. (See Balon, supra, 20 Cal.App.4th at pp. 492, 493 (dis. opn. of Phelan, J.).) The Woo panel reasoned that "[t]he Balon rule permits plaintiffs to assert they forgot the defendant's identity even though it is uncontested they knew the identity at an earlier time, and relieves them of any obligation to refresh their memory with readily available information. The result is to excise from section 474 the importance of actual ignorance of the name of the defendant, because by mere assertion of memory loss a plaintiff would always be considered ignorant of the name of the defendant." (Woo, supra, 75 Cal.App.4th at p. 180.) We agree with the holding and reasoning in Woo. We also agree with Justice Phelan's observation in his dissenting opinion in Balon, supra, 20 Cal.App.4th at page 494, that the California Supreme Court in Irving v. Carpentier, supra, 70 Cal. 23, upon which the Balon majority relied, "impliedly recognized that where resort to 'readily accessible' information is available to ascertain a true name, a tardy 'Doe' amendment should not be allowed." Referring to section 474, the Irving court stated, "Sometimes there is no means readily accessible of ascertaining the true names. The statute above referred to was enacted to afford a remedy in such cases." (Irving v. Carpentier, supra, 70 Cal. at p. 26, italics added.)
We conclude that Karl met his burden of persuasion in showing that the cause of action Lomas alleged against him in her amended complaint was barred by the statute of limitations.
DISPOSITION
The judgment is affirmed. Karl shall recover his costs on appeal.
We Concur: McConnell, P. J., Irion, J.