Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. SC085242
APPEAL from a judgment of the Los Angeles County Superior Court, Richard Neidorf, Judge. Affirmed.
Law Offices of Nigel Burns, Nigel Burns for Plaintiffs and Appellants.
Law Office of Priscilla Slocum, Priscilla Slocum; Early, Maslach & Van Dueck and James Randall, for Defendant and Respondent.
MOSK, J.
INTRODUCTION
Plaintiffs and appellants Dean Stewart and Jeanie Young (plaintiffs) sustained injuries when a vehicle owned and operated by Mercedes Gamero (Mercedes) rear-ended a vehicle driven by Daniel Montoya (Montoya), causing Montoya’s vehicle to collide with plaintiffs’ vehicle. Prior to filing suit, plaintiffs’ attorney corresponded with Mercedes’s insurer, sometimes referring to Mercedes as the insured but other times referring to Francisco Gamero (Francisco) as the insured. Plaintiffs filed suit just prior to the expiration of the statute of limitations, naming Francisco as the defendant, not Mercedes. Well after the statute of limitations had expired, plaintiffs filed and the trial court approved a form amendment to “correct” the name of the defendant (name-correction amendment) by substituting Mercedes’s name for Francisco’s pursuant to Code of Civil Procedure 473. After allowing Mercedes to have her summary judgment motion heard less than 30 days prior to trial and reconsidering its order approving the name-correction amendment, the trial court granted Mercedes’s motion for summary judgment on the grounds that plaintiffs’ claims against Mercedes were time-barred.
According to plaintiffs, Francisco is Mercedes’s father who, at the time the action was filed and served, lived at the same address as Mercedes.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
On appeal, plaintiffs contend that the trial court had no power to reconsider its prior order denying Mercedes’s request to have her summary judgment motion heard less than 30 days prior to trial or its prior order allowing the name-correction amendment. Plaintiffs also contend that the amendment substituting Mercedes for Francisco was proper under section 473, so that the amended complaint against Mercedes related back to the filing date of the original complaint against Francisco and was timely.
We hold that the trial court had inherent power to reconsider its prior orders, and that it properly exercised that power in this instance. We further hold that the grant of summary judgment was proper because the purported amendment under section 473 did not relate back to the filing date of the original complaint. We therefore affirm the judgment.
The facts are taken from the evidence submitted in support of Mercedes’s motion for summary judgment.
The automobile accident that gave rise to plaintiffs’ lawsuit occurred on April 20, 2003 (accident). The collision report by the California Highway Patrol identifies Mercedes as the owner and driver of the vehicle that caused the accident. The report indicates that Mercedes’s vehicle collided with the rear of Montoya’s vehicle, causing Montoya’s vehicle to collide with plaintiffs’ vehicle.
On July 13, 2004, plaintiffs’ counsel wrote Mercedes’s insurance company, Farmer’s Insurance Group (Farmers), concerning the accident and identified “Mercedes B. Gamero” as Farmers’s insured. On July 20, 2004, plaintiffs’ counsel transmitted a copy of the collision report to Farmers by facsimile transmission. On March 23, 2005, plaintiffs’ counsel wrote a demand letter to Farmers. Although the letter initially identified Francisco as Farmers’s insured, the body of the letter explained that Farmers’s insured, “Mercedes Gamero,” had rear-ended another vehicle involved in the accident at 40 miles per hour.
PROCEDURAL BACKGROUND
A. Original Complaint
Plaintiffs filed their complaint against Francisco and “Does 1 to 25” on April 18, 2005—two days prior to the running of the two-year statute of limitations. The complaint identified Francisco as a defendant “who operated a motor vehicle . . .,” and alleged that “ . . . Defendants . . . wrongfully and carelessly operated their motor vehicle . . . .” The complaint did not mention Mercedes.
The statute of limitations for personal injury actions is two years (§ 335.1) and, as noted, plaintiffs were injured on April 20, 2003.
B. Name-Correction Amendment
In an August 26, 2005, letter, Francisco’s counsel informed plaintiffs’ counsel that Francisco was not the driver or the registered owner of the vehicle that caused the accident, and demanded that Francisco be dismissed from the lawsuit. On August 31, 2005, plaintiffs’ counsel served by mail the name-correction amendment purporting to amend the complaint to reflect the “true” name of the defendant by substituting Mercedes’s name for Francisco’s. No attempt was made to notify Mercedes of the name-correction amendment at the time it was filed. Plaintiffs’ counsel did not use the “Fictitious Name” portion of the form—which did not require a court order—but rather used the “Incorrect Name” portion—which required a court order. The file stamp on the name-correction amendment reflects that it was approved and entered by the trial court on September 2, 2005. On September 26, 2005, plaintiffs filed an amended complaint that was identical to the original, except that Mercedes’s name was substituted for Francisco’s. The amended complaint was not served on Mercedes until later.
C. Motion to Strike
On September 28, 2005, Francisco filed a motion to strike plaintiffs’ amendment to the complaint on the grounds that the amendment was false and sham because Francisco and Mercedes were separate persons, such that Mercedes could not be substituted for Francisco as a party to the action under the guise of a name correction. Plaintiffs opposed the motion to strike arguing that Francisco had no standing to make the motion because he had been replaced by court order with Mercedes, and that the motion was untimely under section 1008 because it was made more than ten days after the trial court entered its September 2, 2005, order naming Mercedes as the true defendant to the action. At the October 31, 2005, hearing on Francisco’s motion to strike, the trial court’s tentative ruling was to deny the motion because Francisco lacked standing. After hearing argument, however, the trial court denied the motion because Francisco had been served with the name-correction amendment, and did not object to it. Plaintiffs filed a partial dismissal with prejudice as to Francisco on October 31, 2005.
As noted, the proof of service for the amendment stated that it was served by mail on August 31, 2005, and the conformed file stamp shows that the trial court ordered the amendment on September 2, 2005.
D. Summary Judgment Motion
On November 8, 2005, Mercedes (represented by the same attorneys who represented Francisco) filed an answer to the first amended complaint. On December 19, 2005, Mercedes filed a motion for summary judgment on the grounds that there was no triable issue of fact concerning the untimely filing of the amended complaint against Mercedes and that the amended complaint was therefore time-barred. Plaintiffs opposed the motion arguing that their amended complaint related back to the filing date of the original complaint because the court-ordered amendment substituting Mercedes’s name for Francisco’s was merely the correction of a misnomer, and not the addition of a new and different party defendant. In addition to their opposition papers, plaintiffs filed an objection to the motion on the grounds that it was scheduled to be heard within 30 days prior to the trial date, in violation of section 437c, subdivision (a).
E. Ex Parte Application
On March 10, 2006, Mercedes applied ex parte for an order continuing the trial or, in the alternative, shortening the 30-day period prior to trial by which summary judgment motions must be heard pursuant to section 437(c), subdivision (a). Plaintiffs opposed the application arguing that Mercedes had failed to demonstrate good cause for continuing the trial date or shortening the 30-day deadline prior to trial for the hearing on her summary judgment motion. The trial court considered and denied the application. That same day, however, in a conference call with the parties, the trial court informed them that it was having “second thoughts” about the denial of the application. When plaintiffs’ counsel made repeated protests about the impropriety of the telephone conference, the trial court indicated that it would entertain a motion by Mercedes on March 15, 2006, to continue the trial―prior to the hearing on the summary judgment motion―so that the summary judgment motion could then be heard that day.
F. Reconsideration and Summary Judgment
On March 15, 2006, the trial court first heard arguments concerning whether it could continue the trial or shorten time so that the summary judgment motion could be heard less than 30 days before trial. After hearing oral argument on the issue, the trial court ruled that “on the court’s own motion I’m going to shorten time and this [summary judgment] motion is going to be heard closer [than] 30 days before trial.”
The trial court then indicated that it was inclined to reconsider the order allowing the name-correction amendment. According to the trial court, after it denied Francisco’s motion to strike, it realized that it had signed the form order allowing the name-correction amendment without providing Francisco adequate time within which to object to the amendment.
After overruling plaintiffs’ objections to certain of Mercedes’s evidence, the trial court provided its tentative view that the summary judgment motion should be granted because the amendment naming Mercedes as the defendant was untimely and did not relate back to the filing of the original complaint. After hearing extensive argument from plaintiffs’ counsel, the trial court ruled that its “tentative stands,” and directed Mercedes’s counsel to prepare a written order.
On March 23, 2006, the trial court entered a written order granting summary judgment. The trial court found that plaintiffs’ “effort to add [Mercedes] to this action by filing an amendment seeking a ‘name change’ was incorrect. [Mercedes] was and at all times is a separate individual and was known to plaintiffs prior to the expiration of the statute of limitations.” According to the trial court, the addition of “[Mercedes] to this lawsuit was not a mere technical ‘name change’ in an attempt to correct the mischaracterization or description of a defendant but was in fact an attempt to add a completely new defendant to this action.” Therefore, the trial court ruled that the “amendment to ‘correct the name’ signed by this Court on September 2, 2005, did not relate back to the lawsuit on file in this action.” The trial court concluded that “[Mercedes’s] motion for summary judgment is granted, and . . . judgment shall be entered in favor of the Defendant and against the Plaintiffs, with costs as prayed for in a timely filed Memorandum of Costs.”
On May 19, 2006, plaintiffs filed a notice of appeal from a “Judgment after an order granting a summary judgment motion,” listing the date of the judgment as March 23, 2006, i.e., the date of the written order granting defendant’s summary judgment motion. The judgment, however, was not entered until December 7, 2006.
DISCUSSION
A. Standards of Review
Plaintiffs contend that section 1008 prevented the trial court from reconsidering certain of its prior orders. That contention raises an issue of statutory construction that we review de novo. (See Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)
Plaintiffs also contend that the trial court erred in granting summary judgment. “We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal.Rptr.2d 356].) We make ‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.’ (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal.Rptr.2d 35].) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493].)” (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216-1217.)
B. Reconsideration
Plaintiffs assert that the trial court lacked the power to reconsider its September 2, 2005, order allowing the name-correction amendment and its March 10, 2006, order denying Mercedes’s ex parte application to continue the trial or shorten time. According to plaintiffs, section 1008 requires a showing of new facts or law, and Mercedes did not make either showing in the trial court. In the alternative, plaintiffs contend that, to the extent the trial court was exercising its inherent authority to reconsider the orders in issue, it failed to provide plaintiffs with adequate notice of its intent to do so. Finally, plaintiffs argue that even assuming the trial court had discretion to reconsider its orders, it abused that discretion. None of plaintiffs’ arguments concerning reconsideration has merit.
Plaintiffs’ contention that section 1008 prevented the trial court from reconsidering its prior orders is controlled by the Supreme Court’s holding in Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois). In that case, the trial court denied the defendant’s original motion for summary judgment. (Id. at p. 1098.) More than a year later, certain of the defendants again moved for summary judgment on the same grounds. (Ibid.) The trial court granted the second motion and the Court of Appeal affirmed the ensuing judgment. (Ibid.)
On review by the Supreme Court, the plaintiffs in Le Francois, supra, 35 Cal.4th 1094 argued that section 437c, subdivision (f)(2) and section 1008 prohibited the trial court from hearing the second summary judgment motion. The Supreme Court disagreed, holding that “sections 437c, subdivision (f)(2), and 1008 prohibit a party from making renewed motions not based on new facts or law, but do not limit a court’s ability to reconsider its previous interim orders on its own motion, as long as it gives the parties notice that it may do so and a reasonable opportunity to litigate the question.” (Id. at pp. 1096-1097.) According to the court in Le Francois, although “a party may not file a written motion to reconsider . . . if it does not satisfy the requirements of section . . . 1008,” a trial court may nevertheless reconsider its interim orders on its own motion if the “court believes one of its prior orders was erroneous . . . .” (Id. at p. 1108.)
Here, the record reflects the trial court’s belief that both the September 2, 2005, order allowing the name-correction amendment and the March 10, 2006, order denying Mercedes’s ex parte application were erroneous. It therefore had the inherent power to correct those erroneous rulings on its own motion, as long as plaintiffs had adequate notice of its intent to do so and a reasonable opportunity to litigate the issues being reconsidered.
Given the procedural posture of this case, plaintiffs’ contention based on inadequate notice is unpersuasive. As to reconsideration of the September 2, 2005, order allowing the name-correction amendment, the validity of that amendment under section 473 was clearly put in issue by Mercedes’s summary judgment motion. Mercedes argued that the purported amendment under section 473 was improper because it did not merely correct a misnomer, but instead sought to add a new party to the action after the statute of limitations had run. Plaintiffs thus had notice that the trial court was being called upon to determine the issue, and they briefed the issue in their opposition papers (which did not raise any procedural objection based on section 1008 to the trial court determining that issue on the merits). Moreover, at the March 15, 2006, hearing, the trial court offered to continue the hearing to allow plaintiffs to present further evidence and argument, but plaintiffs declined that offer. And plaintiffs do not point to any additional evidence or arguments on appeal that they were prevented from presenting to the trial court based on the alleged lack of notice. Under these circumstances, the trial court had the inherent authority to reconsider the propriety of the name-correction amendment in connection with its ruling on plaintiffs’ motion for summary judgment.
Plaintiffs’ notice argument in connection with the March 10, 2006, order denying Mercedes’s ex parte application is similarly flawed. The issue concerning the 30-day deadline prior to trial for hearing summary judgment motions was first raised by plaintiffs in an objection they filed concurrently with their opposition to the summary judgment motion. Mercedes responded to plaintiffs’ objection with her ex parte application to continue the trial or to shorten the 30-day period. Although the trial court initially denied that application, it had “second thoughts” about the denial that same day, and conferred by telephone with the parties on the issue. When plaintiffs’ counsel argued that the trial court could not reconsider the denial of the ex parte application in a telephone conference, the trial court put the matter over to the March 15, 2006, hearing date. Thus, the record shows that plaintiffs were well aware of the trial court’s intention to reconsider at the March 15 hearing the denial of the ex parte application. And, as with the name-correction amendment, plaintiffs cannot point to any arguments or evidence that they were prevented from presenting to the trial court on the 30-day deadline issue. It therefore appears plaintiffs had a full and fair opportunity to address the issue of whether the summary judgment motion should have been heard less than 30 days prior to trial. The trial court’s reconsideration of that order was an appropriate exercise of its inherent authority to correct prior, erroneous rulings.
Plaintiffs also argue that the trial court abused its discretion in reconsidering both orders. According to plaintiffs, the trial court’s comments about wanting to avoid upsetting potential jurors show that the court reconsidered its prior orders for an improper reason. Plaintiffs further contend that the trial court disliked their counsel, and suggest that the trial court reconsidered its orders on that basis.
The trial court’s comments about upsetting potential jurors were not intended as a rationale, much less the sole rationale, for reconsidering its orders. The rationale for changing both orders was clearly stated on the record. As to the name-correction amendment, the trial court acknowledged that it had been entered based on inadequate notice and was legally erroneous because section 473 did not authorize the substitution of a different party under the guise of a name change.
As to the order denying Mercedes’s ex parte request for an order shortening the 30-day deadline, the trial court stated that, upon further reflection, it had realized that the application should have been granted because the summary judgment motion was well taken and would obviate the need for a trial. Therefore, according to the trial court, denial of the ex parte application would have prevented a hearing on a meritorious and dispositive motion, and caused the parties to incur the needless expense incident to trial. Based on that sound reasoning, it was not an abuse of discretion to hear the summary judgment motion less than 30 days prior to trial.
Finally, the record does not support plaintiffs’ contention that the trial court disliked their counsel and ruled accordingly. At one point during the lengthy oral argument, the trial court did remark that plaintiffs’ counsel was acting “pestilent and like a child . . . and its not helping you.” The trial court also observed that “You’re so nervous and agitated that its not helping you. . . . [P]eople in your condition don’t think straight. . . . [S]o calm down and give me a reason why hearing this motion [for summary judgment] closer than 30 days before trial is going to interfere with the preparation of your case.” Contrary to plaintiffs’ assertion, the trial court’s admonition to plaintiffs’ counsel during argument to compose himself does not show that the trial court was biased against plaintiffs’ counsel and allowed such bias to influence its rulings. As the trial court confirmed, plaintiffs’ counsel’s demeanor during argument “didn’t affect [its] ruling at all.”
C. Summary Judgment
Plaintiffs contend that the trial court made a mistake of fact and law when it rejected plaintiffs’ amendment under section 473. According to plaintiff, the amendment was proper under section 473 because it merely corrected a “misnomer” in the original complaint, but did not change the nature of the action—a negligence claim against the owner/operator of a motor vehicle—or the relief sought. We disagree.
“Code of Civil Procedure section 473, subdivision (a)(1), allows the trial court to permit a party ‘to amend any pleading . . . by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect . . . .’ [¶] As a general rule, ‘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.’ (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176 [89 Cal.Rptr.2d 20], italics added.) But where an amendment does not add a ‘new’ defendant, but simply corrects a misnomer by which an ‘old’ defendant was sued, case law recognizes an exception to the general rule of no relation back. (E.g., Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468, 1470–1471 [6 Cal.Rptr.2d 563]; Kerr-McGee Chemical Corp. v. Superior Court (1984) 160 Cal.App.3d 594, 599 [206 Cal. Rptr. 654] & fn. 3; Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 491 [159 Cal. Rptr. 557]; Stephens v. Berry (1967) 249 Cal.App.2d 474, 479 [57 Cal. Rptr. 505].)” (Hawkins v. Pacific Coast Bldg. Products, Inc. (2004) 124 Cal.App.4th 1497, 1503.)
“Section 473 does not authorize a court to add for the first time a party not named in the complaint. (Kerr-McGee Chemical Corp. v. Superior Court, supra, 160 Cal.App.3d at pp. 598-599; Stephens v. Berry (1967) 249 Cal.App.2d 474, 478 [57 Cal. Rptr. 505].) In Kerr-McGee Chemical Corp., the Court of Appeal held: ‘“‘Amendment to correct an honest mistake in the naming of a party . . . must be sharply distinguished from the question whether the correctly named party is actually being joined in the litigation for the first time under the guise of a claim of misnomer.’”’ (Kerr-McGee Chemical Corp. v. Superior Court, supra, 160 Cal.App.3d at p. 599, quoting 1 Chadbourn et al., California Pleading (1961) § 686.) Section 473 is ‘a procedural statute to authorize correction of obvious and minor mistakes, such as in spelling of a defendant's name.’ (160 Cal.App.3d at p. 599, fn. 3.) In Kerr-McGee Chemical Corp., the Court of Appeal further held: ‘[I]t is important to maintain the distinction between correcting an honest error in the name of a correctly named party and joining a new party in the litigation for the first time under the guise of a claim of misnomer. [Citations.]’” (Meller & Snyder v. R&T Properties, Inc. (1998) 62 Cal.App.4th 1303, 1313, fn. 5.)
In Stephens v. Berry (1967) 249 Cal.App.2d 474 (Stephens), the plaintiff, Stephens, was involved in a three-car accident. Reynolds, driving a DeSoto, was stopped at an intersection waiting for traffic to clear. (Id. at p. 475.) Stephens stopped his Ford station wagon behind Reynolds’s DeSoto and Berry, driving a Ford Falcon, struck Stephens from behind, pushing Stephens’s Ford station wagon into Reynolds’s DeSoto. (Ibid.) Reynolds concluded that there was no serious damage to his car and left the scene. (Stephens, supra, 249 Cal.App.2d at p. 475.) Stephens and Berry spoke briefly at the scene and subsequently exchanged names, vehicle license numbers, and driver’s license numbers. (Ibid.) Berry also gave Stephens the name of his insurer and his policy number. (Ibid.) In addition, Stephens’s attorney obtained a copy of the police report that accurately described the cars involved in the accident and gave the full name and address of each driver, such that both Stephens and his attorney were aware that Berry was the driver of the Ford Falcon that collided with Stephens’s vehicle. (Id. at pp. 475-476.)
When Stephens’s attorney filed the complaint, however, he named Reynolds as the defendant, but not Berry. (Stephens, supra, 249 Cal.App.2d at p. 476.) After the statute of limitations had run, Stephens attempted to add Berry as a doe defendant under section 474 and also moved to amend the complaint to insert Berry’s name for Reynolds’s name under section 473. (Ibid.) Berry’s motion to strike the doe amendment and Stephens’s motion to amend were heard at the same time. (Ibid.) The trial court granted Berry’s motion to strike and denied Stephens’s motion to amend. (Ibid.)
Section 474 provides: “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; provided, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: ‘To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).’ The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. The foregoing requirements for entry of a default or default judgment shall be applicable only as to fictitious names designated pursuant to this section and not in the event the plaintiff has sued the defendant by an erroneous name and shall not be applicable to entry of a default or default judgment based upon service, in the manner otherwise provided by law, of an amended pleading, process or notice designating defendant by his true name.”
In affirming the trial court’s judgment, the court in Stephens, supra, 249 Cal.App.2d 474 first concluded that Stephens’s attempt under section 474 to name Berry as a doe defendant failed because Stephens was aware of Berry’s identity. (Id. at p. 477 [“Thus, [Stephens] could not sue Berry by a fictitious name because [Stephens] knew [Berry’s] real name”].) The court also rejected Stephens’s attempt to substitute Berry for Reynolds under section 473. “The general rule is that amendment after the statute of limitations has run is not permitted when the result is to drop one party to the action and add another who up to the time of the amendment was not a party to the proceedings. The general rule is the one applicable to our facts. (Mayberry v. Coca Cola Bottling Co. [(1966)] 244 Cal.App.2d 350, 353; Milam v. Dickman Constr. Co. [(1964)] 229 Cal.App.2d 208, 210 [40 Cal.Rptr. 130]; Thompson v. Palmer Corp. [(1956)] 138 Cal.App.2d 387 [291 P.2d 995]; see also 8 A.L.R.2d 166.) Here, Reynolds has been a party to the action from the beginning. . . . But it was not until long after the statute of limitations had run that [Stephens] sought to amend [the] complaint so as to substitute Berry as a defendant in place of Reynolds. It may be that [Stephens] always intended to sue Berry and not Reynolds, but that is not what [he] did. [Stephens] sued Reynolds and asked to substitute Berry only after the statute had run against [the] claim. The case is not one of misnomer, but rather one of failure to name the right party as a defendant, and the general rule, supported by the authorities cited, must govern.” (Id. at pp. 478-479, italics added.)
As in Stephens, supra, 249 Cal.App.2d 474, it may be that plaintiffs in this case always intended to sue Mercedes, but that is not what they did. They named and served Francisco and then attempted to substitute Mercedes—after the statute had expired on their claims against her—under the guise of an amendment to correct a mistake in a party’s name. There was no misnomer here, but rather a failure to name the correct party as a defendant. The general “no relation back” rule therefore governs, and plaintiffs’ claims against Mercedes are time-barred.
DISPOSITION
The judgment of the trial court is affirmed. Mercedes is awarded costs on appeal.
We concur: TURNER, P. J., ARMSTRONG, J.