Oppenheimer v. Gordon

SHINN, P. J.

Plaintiff appeals from a judgment of dismissal entered pursuant to an order sustaining, without leave to amend, a demurrer to his complaint filed by defendant Automobile Club of Southern California. What happened was this: Plaintiff brought an action in the Los Angeles Municipal Court for property damage to his car (and loss of use thereof) caused by a collision with a Studebaker ear driven by defendant Irving Gordon. The complaint alleged, in paragraph I, that defendants Irving Gordon and Nora M. Gordon are the registered owners of the Studebaker. Paragraph II alleged that “the legal owners of said automobile are unknown to the plaintiff at this time, and therefore designated as defendants herein by fictitious names; upon ascertaining their identity, plaintiff will ask leave of Court to substitute and insert the true names of said defendants in the place and stead of fictitious names herein used.” Paragraph III alleged that at the time of the collision, defendant Irving Gordon was driving the Studebaker “with the full knowledge and consent of each of the other defendants herein named.”

Defendant Irving Gordon cross-complained, seeking recovery for personal injuries and other damages well over the jurisdictional amount of the municipal court and the cause was transferred to the superior court. Shortly thereafter, plaintiff filed an amendment to his complaint in which he alleged that the true name of the defendant designated in the complaint as “Doe Corporation” was the Automobile Club of Southern California and he thereby substituted the same in place of the fictitious name. Defendant Automobile Club demurred to the complaint on the grounds that the complaint failed to state a cause of action against said defendant; and that there was a defect or misjoinder of parties in that defendant Automobile Club was not a necessary or proper party to the action. We are of the opinion that the court did not err in sustaining the demurrer without leave to amend.

Plaintiff contends that his complaint states a cause of action against defendant Automobile Club under the Permissive Use Statute (Veh. Code, § 402, subd. (a)) since defendant

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Irving Gordon was operating the Studebaker with “the full knowledge and consent of each of the other defendants herein named. . . and Gordon’s negligence is to be imputed to the other owners of the car. This argument is without merit.